Temple, J.
This is an action to obtain a divorce, in which the plaintiff also asked for the exclusive custody and control of two children, the issue of the marriage, and also for permanent alimony, as well as for a suitable allowance to enable her to prosecute this action.
[106]*106The defendant and the children, who were, of course, infants, were absent from the state when the suit was commenced, and have ever since remained absent. No personal service of the summons was had on the defendant, and he did not appear in the action. An attempt was made to serve the summons by publication.
It is claimed that the service was void because not made as required by the laws of this state, but I shall assume that such attempt at a constructive service was in accordance with the statute in every respect.
The defendant was born, and during his whole life had lived, in this state. He left the state on the twentieth day of November, 1893, with two children of plaintiff and defendant, proceeding to New York, and on the ninth day of December, 1893, left New York for Paris, France, where he arrived with his children on the nineteenth day of December. January 4, 1894, he made application to the ministry of justice of France for express permission to be domiciled in France. Such permission was granted on the fourteenth day of July, 3894. Since December 19, 1893, defendant has resided in France with his children, and neither he or either of the children have since been within this state.
This sun was commenced two days after the departure of the defendant from the state, and it is claimed that defendant left the state and took the children for the express purpose of evading the jurisdiction of the courts of this state.
As stated, the defendant did not appear in said action, and the publication of summons having been made, in due time the default of the defendant was entered, and the court proceeded to hear the cause, and on the sixteenth day of May, 1894, judgment was rendered against defendant, wherein it was adjudged:
1. That the marriage be dissolved; 2. That the exclusive custody, care, and control, and education of the children be awarded to plaintiff; and 3. That plaintiff “ shall have the right, at such time in the future .as "she shall be advised, to apply to the court for such suitable [107]*107allowance and sum to be paid her by said defendant for her support during her life, and such further sums as maybe necessary in order to enable her to make proper compensation to her attorneys and counsel in said action, and to enforce this decree and judgment.”
On the seventh day of September, 1894, on due notice, the defendant moved the court for an order: 1. Vacating the judgment in so far as the same relates to alimony, or any provision for the support of plaintiff or for the support of the children of plaintiff and defendant; 2. Vacating the judgment so far as it relates to the care, custody, and control of the children; 3. Vacating the judgment so far as it relates to alimony or allowance for the support of plaintiff or the children, and for an order striking out from the judgment all the provisions relating to or providing for alimony or support for the plaintiff, or the minor children of plaintiff and defendant, or awarding or providing for the custody, care, or control of the said two minor children.
The motion "was based upon the claim that the court had no jurisdiction over the subject matter of this action in so far as it relates to the matters, subjects, and things hereinbefore specified, and had no jurisdiction, or power or authority to make any order or judgment in relation to the subject matters and things aforesaid, and had no jurisdiction over the person of the defendant sufficient to enable, authorize, or empower it to make any order, judgment, or provision, in relation to said subject matters and things, and that said defendant was, at the time of the commencement of this action, and ever since has been, and now is, without the jurisdiction of the said court and without the territorial limits of the state of California, and has never been served with process herein personally, and no service of process has been had herein to enable the court to make any order, judgment, or provision in regard to the subjects, matters and things aforesaid, and' that said infant children of plaintiff and defendant were not at the time of the commencement of [108]*108this action, and never since have been, and are not now, within the state of California.
In support of the motion various affidavits were read, showing the above facts and others.
Appellant here bases his claim for reversal upon three grounds: 1. That the proof of publication shows that constructive service has never been had according to the statutes of this state, and that, therefore, the judgment is wholly void; 2. The defendant and children were at the time of the attempted service of summons,, domiciled in France, and, therefore, the court had no-jurisdiction to award the custody of the children to plaintiff, or to provide for alimony; and 3. That the-mere fact that the defendant and children were without, the territorial limits of California when the action was commenced deprives the court of jurisdiction, even admitting that defendant and the children are domiciled in California, and the constructive service of summons was in all respects regular.
Respondent admits the facts in regard to the departure of defendant from the state with the children, but claims that as matter of law and fact it appears that the domicile of the defendant and children is, and has always been, in California, and she contends that such being the case, the court acquired jurisdiction, not only to grant the divorce to her, but to enter a judgment in personam against the defendant, valid at least in Cali-, fornia. She also contends that the judgment awarding to plaintiff the custody of the children is in rem; that it is valid because it is a mere incident to the divorce, and that upon a dissolution of the marriage it was necessary to provide for the children. Furthermore, she insists that there is no judgment for alimony or for an allowance of any kind.
i Conceding that the defendant and the children are all 1 domiciled in California, although in fact absent from 1 the state at the time of the commencement of the action (and since, and that the constructive service of summons [109]*109was sufficient to give the court jurisdiction to grant the: divorce, did the court have the power to award to plaintiff the exclusive custody of the children, and to allow alimony? I have concluded that it had no such power.
Some cases are cited which seem to hold that a personal judgment obtained by constructive service of the summons is valid within the state, although the defendant may have been in fact absent from the state at the time of such service. As to most of these cases it may be said that such statements are entirely obiter, the. question before the court being as to the extraterritorial effect of such judgment. In such cases the argument is, in general, that, conceding the validity of the judgment within the state where rendered, another state will not recognize its validity, because it will not permit the, process of another state to be served within its territory so as to compel one resident there, or in fact being there, to answer a writ issued by the courts of such foreign state. It is a sort of an invasion of a state to serve a foreign writ there at all. The logic would require the courts to go farther and hold that such judgment is wholly void.
Constructive service upon a party who is within the state doe.s not raise the question. The question there is simply whether a defendant had such reasonable opportunity to be heard as will constitute due process.
The leading case upon subjects of this character is Pennoyer v. Neff, 95 U. S. 714. Counsel for respondent contends that it is not there held that jurisdiction to enter a personal judgment cannot be obtained over one domiciled in the state by constructive service, when such defendant is absent from the state at the time of the attempted service; but only that such service is not good against a defendant who is not only without the state, but is actually domiciled elsewhere. Domicile has] never, so far as I am aware, been made the test of juris-t' diction to render a personal judgment. The question there is always whether there has been due process; wdiether the defendant has had a reasonable opportu[110]*110nity to be heard ? Substituted service may be valid upon those within the state when the same service would be void as to those without the state. As to those within the state the question would be whether it has afforded a defendant a reasonable opportunity to be •heard. But the process cannot go beyond the state and •compel any person in another state to resort to the state where the action is pending, there to make his defense. No service will be recognized made there, whether actual •or constructive. It is as much an invasion of a foreign jurisdiction to serve a citizen of the state in which the action was brought temporarily resident there, as it would be to summon from its borders a citizen of such foreign state. If such things could be done, who would determine where the domicile of a particular person really was ? Domicile often depends upon secret intention. It would be a most unsatisfactory test.
I am aware that it is often said by courts and law writers that domicile is the test of jurisdiction in divorce. This doctrine was built up mainly, if not entirely, to prevent parties really residing in a state from going to another for the purpose of getting a divorce. So far its •effect has been beneficent, but it is obvious after all that what in these cases is called domicile is not domicile. As between states it would be no test at all unless it is domicile as defined in international law. To concede that each state may give a different definition, or tp speak of domicile for the purposes of divorce, as is often done, is to concede that the test is not domicile. These writers and the courts say' the test is “ actual bona fide domicile." Since every person always has a domicile, and can have but one, how does actual and bona fide domicile differ from domicile?
It is meant, I presume, that domicile and actual residence must coincide. Where, then, is the jurisdiction in those cases where they do not? One may be domiciled in California who never was within the state and never had thought of going there. Or he may be domiciled therein years after he has left without the inten[111]*111tian of returning. Persons have in California exercised for years all the rights of citizens and even held high office, who, according to Pliillimore, Jacobs, Dicy and other writers on the law of domicile, never had a domicile here, because they at all times had a fixed and definite intention of returning to their domicile of origin. Had the wife of such a person obtained a divorce while he was here exercising the rights of a citizen of the state, would the courts of any state declare such a decree void upon proof of the existence of such intention? If not, then domicile is not the test of jurisdiction even as to the status of the litigants, and certainly not in personal actions.
Jurisdiction is derived from the constitution and laws creating the court, and I know of no limitation in the constitution of the United States upon the power of a state to give to its courts jurisdiction over all persons found within its borders. Certainly it has not imposed any such limitation as the test of domicile.
Domicile is the test of personal rights in regard to inheritance, but, unless made so by local law. is not important as affecting the relation of the individual to the government. The relation of the individual to the government depends upon actual presence within the territorial limits of a country, and upon citizenship or allegiance.
But I cannot understand Pennoyer v. Neff, supra, as counsel do. It is true that in the case in which the judgment there under consideration was rendered the defendant was said to have been a nonresident, and, presumably, was domiciled abroad, but that circumstance seems to have been treated as one immaterial in the discussion.
The judgment there was personal, and jurisdiction was obtained, if at all, by constructive service of summons. I use the term “ constructive service” for convenience, although it does not constitute service at all when the defendant is without the state. No property ad been attached. The conclusion is based upon a [112]*112proposition of international law laid down at the outset. “ No state can exercise direct jurisdiction and authority over persons or property without its territory. (Story on Conflict of Laws, c. 2; Wheaton on International Law, pt. 2, c. 2.) The several states are of equal dignity and authority, and the independence of one implies the exclusion of power from all others. And so it is laid down by jurists, as an elementary principle, that the laws of one state have no operation outside of its territory, except so far as is allowed by comity; and that no tribunal established by it can extend its process beyond that territory so as to subject persons or property to its decisions.”
The idea seems to be that the state has no jurisdiction over either persons or property not within its territory, and that to allow it to summon one from another state is an encroachment upon the independence of such state.
The judge then cites the case of Cooper v. Reynolds, 10 Wall. 308. In that case Justice Miller was considering a judgment obtained by W. G. Brownlow against Reynolds' and others for false imprisonment. Brownlow made affidavit to the effect that the defendants had fled from the state, or so absconded or concealed themselves that the ordinary process of law could not reach them. Thereupon, under the statutes of Tennessee, the plaintiff caused an attachment to be issued and due publication to be made. Default was entered, and a judgment, personal in form, against defendants. The land attached was sold, and the case before the court was ejectment, brought by the original owner against the purchaser under the judgment who had taken possession. • The question was as to the validity and effect of the judgment.
The court proceeded to state that the proceeding, in case the defendant did not appear, was strictly in rem; that if he appeared it then became in personam. It was there said: “ That such is the nature of this pro ceeding in this latter class of cases is clearly evinced b [113]*113two well-established propositions: 1. The judgment of the court, though in form a personal judgment against the defendant, has no effect beyond the property attached in the suit. No general execution can be issued for any balance unpaid after the attached property is exhausted. No suit can be maintained on such a judgment in the same court, or in any other, nor can it be used as evidence in any other proceeding not affecting the attached property, nor could the costs in that proceeding be collected of defendant out of any other property than that attached in the suit.”
After making a quotation, which includes the above, Judge Field proceeds: “The fact that the defendants in that case had fled from the state, or had concealed them, selves so as not to be reached by the ordinary process of the court, and were nonresidents, was not made a point in the decision. The opinion treated them as being without the territorial jurisdiction of the court; and the grounds of the extent of its authority over persons and property thus situated were considered, when they were not brought within its jurisdiction by personal service or voluntary appearance.” The judge then proceeds to add that, to the doctrine stated in the citation, all the judges of the court agree.
I understand this to be a deliberate statement to the effect that domicile and residence, or both, are immaterial; as indeed they must be, if, as appears all through the opinion, the basis of the doctrine is, that process cannot run beyond the limits of the state. I might make further quotations from this opinion, but it is too familiar to the profession to require it. An impartial consideration of the opinion will, I think, convince any one that it holds that process cannot be served upon any one without the state, and the same doctrine is announced in Galpin v. Page, 18 Wall. 350, where it is said: “Whenever, therefore, it appears from the inspection of the record of a court of general jurisdiction that the defendant, against whom a personal judgment or decree is rendered, was, at the time of the alleged ser[114]*114vice, without the territorial limits of the court, and thus beyond the reach of its process, that he never appeared in the action, the presumption of jurisdiction over his person ceases.” From this, and other like expressions in other cases, it is manifest that domicile, or even residence, in a state, cuts no figure at all.
The idea that domicile determines jurisdiction in divorce rests upon the assumption that status depends upon domicile, and is of interest there only. Judge Field could not have had "this in mind in Pennoyer v. Neff, supra, and therefore when he speaks of “absent defendants” he cannot mean those not domiciled within the state, but must have meant simply those physically absent, and upon whom, therefore, personal, service of process could not be made.
But it is claimed that the doctrine of Pennoyer v. Neff, supra, was explained in Grover etc. Co. v. Radcliffe, 137 U. S. 287, in accordance with the views of respondent. I cannot find anything in that case upon the subject. The judgment there under consideration was a judgment by confession entered by a prothonotary in a court of Pennsylvania, in pursuance, as it was claimed, of a bond and warrant of attorney executed by John Benge, who was then a resident and citizen of Maryland. The warrant of attorney authorized any attorney of any court of record to confess judgment against him. The statute of Pennsylvania authorized the prothonotary of any court of record in the state to enter judgment upon such an instrument.
An attempt was made to execute this judgment in Maryland. It was claimed that the judgment was void, not being entered in pursuance of the power, and that defendant not having been served with process, and not having appeared, the judgment was without jurisdiction and void.
The numerous cases cited by the chief justice were used to show that such a judgment would be held invalid without the state where rendered, and not to show that it should be held valid within the state, and I think the [115]*115question whether such a judgment would be valid within the state where rendered was not before the court in any of the cited cases. But, in discussing the question as to whether the judgment would be valid in another state, it was assumed that it might be valid within the state where rendered.
That was the very question in Pennoyer v. Neff, supra. A personal judgment upon constructive service had been rendered against a nonresident, and property in Oregon sold under execution to satisfy it. The question was as to the validity of the judgment within the state where rendered.
It is contended also by the respondent that the decree is valid as to children and alimony, although the service was constructive, and the court could not render a personal judgment because these are incidents to the divorce. Conceding that they are incidents to the cause of action for a divorce, the result would not follow. In proceedings in rem where there is no jurisdiction of the person, no such result has ever been recognized.
In Cooper v. Reynolds, supra, it was said that costs cannot be recovered from any other property of the defendant. There is in reality no defendant save the res. So here it cannot properly be said there was a defendant. In the proceeding the court had before it only the status of the plaintiff. The summons was not really a writ to bring the defendant into court, but merely a notice prescribed by the statute in the interests of fairness, and to rebut the idea that the proceeding was secret. (2 Bishop on Marriage and Divorce, sec. 159.) It brought the res into court, and not the defendant. The adjudication must be confined to that status. It is said that the relation of the parents to the children, and their relation to each other in regard to the children, is a status. If so, it would not help the respondent, for no such status was before the .court. But the very meaning of the word “ status,” both derivative and as defined in legal proceedings, forbids that it should be applied to a mere relation. Status implies relations undoubtedly, [116]*116but it is not a mere relation. But the authorities are all one way on this subject.
If the children are within the jurisdiction, and the-defendant is personally served with summons, and perhaps if he is not, the court may award the custody of the children to one of them. It is a mode of appointing a guardian, which is always a matter of local control, regardless of the legal domicile of the children, if domicile and residence do not coincide. It seems to have been held that, when the defendant appears and makes issue upon the point, the court may determine that one spouse is a suitable person to have the custody and control of the children, and that the other is not. (People v. Allen, 40 Hun, 611.) An appeal was taken from the order made in that case, which was a proceeding in habeas corpus to the court of appeals. There the appeal was discharged, because it appeared that the lower court, “ in view of all the existing facts relating to the welfare- and interests of the infants, exercised its discretion in awarding to the mother the custody of the children, and' in so doing it gave to the Illinois decree not the force-of an estoppel, or the conclusive effect sometimes due to a judgment, but simply regarded it as a fact or circumstance bearing upon the discretion to be exercised without dictating or controlling it.” This seems to hold that without the state such a finding would have no-binding force.
But where, as in this case, no personal judgment could be entered, there can be no question. (Van Fleet-on Collateral Attack, secs. 389, 391, and authorities-cited.)
And Judge Cooley, in his Constitutional Limitations,. 6th edition, page 499, says: “The publication which is-permitted by the statute is sufficient to justify a decree in these cases changing the status of the complaining party, and thereby terminating the marriage; and it might be sufficient also to empower the court to pass upon the question of the custody and control of the children of the marriage, if the\y were then within its-[117]*117jurisdiction. But a decree on this subject would only be absolutely binding on the parties while the children remained within the jurisdiction; if they acquire a domicile in another state or country, the judicial tribunals of that state or country would have authority to determine the question of their guardianship there.
“ But, in divorce cases, no more than in any other, ■can the court make a decree for the payment of money by a defendant not served with process, and not appearing in the case, -which shall be binding upon him personally. It must follow, in such a case, that the wife, when complainant, cannot obtain a valid decree for alimony, nor a valid judgment for costs.....The remedy of the complainant must generally, in these cases, be confined to a dissolution of the marriage, with the incident benefits springing therefrom, and to an order for the custody of the children, if within the state.” (See, also, Freeman on Judgments, secs. 584, 585; Brown on Jurisdiction, secs. 6, 8, 78, 79.)
The doctrine is very clearly stated in Woodworth v. Spring, 4 Allen, 321: “ Every sovereignty exercises the right of determining the status or condition of persons found within its jurisdiction. The laws of a foreign state cannot be permitted to intervene to affect the personal rights or privileges even of their own citizens, while they are residing on the territory, and within the jurisdiction of an independent government.”
Respondent contends that there is no judgment for alimony; if so, it is not apparent how plaintiff would be injured by striking from the decree the clause complained of. I think the decree, if valid, settles the right of plaintiff to alimony for her support during life, and, as the court had no jurisdiction to provide for alimony, that part of the decree should be stricken out.
Respondent contends that a motion to vacate the judgment in this case could only be maintained under section 473 of the Code of Civil Procedure. The point of the contention, as I understand it, is, that defendant should come in and submit himself to the jurisdiction [118]*118of the court, show a meritorious defense, and ask leave to have his defense considered. It is obvious, of course, that defendant cannot do this, for he cannot show that the judgment was taken against him by his inadvertence, mistake, or excusable neglect. The argument, therefore, is, that no such motion will lie. No authority for such a proposition is cited, unless Jacks v. Baldez, 97 Cal. 91, may be claimed to have that effect. In that case, however, the motion was to vacate a judgment rendered because a demurrer was sustained to a complaint, and the plaintiff failed to amend within the time allowed. The motion was made eleven months after the entry of judgment. Plaintiff was not notified, as the code requires, of the order sustaining the demurrer.
If this case is not put upon the ground that the failure to give the notice was not jurisdictional, I think it was overruled by Norton v. Atchison etc. Co., 97 Cal. 388; 33 Am. St. Rep. 198. It was, however, but a default, and the parties were in court. A plaintiff who for six months should fail to know what had become of a demurrer which had been submitted for decision would be guilty of great negligence. The remedy offered by section 473 was ample. The case of Norton v. Atchison etc. Co., supra, seems in point here.
It is also claimed that no appeal lies to this court from an order refusing to set aside the judgment because the judgment was appealable. To this proposition many decisions of this court are cited. I do not care to review these cases. No doubt it has been held, and I think correctly, that when a motion is made to vacate an order under such circumstances that it merely calls upon the court to repeat or overrule the former ruling on the same facts, the last order is not appealable, not because the last order is not within the terms of section 963 of the code allowing appeals, for it may be; but because it would be virtually allowing two appeals from the same ruling, and would, in some cases, have the effect of extending the time for appealing contrary to the intent [119]*119of the statute. Nor will such practice be allowed merely to permit a litigant to take an exception, or get a bill of exceptions, which he has neglected to do at the proper time. But I see no reason why this appeal should not be entertained. It is plainly within the terms of the statute allowing appeals, and no other method is suggested in which the right of the appellant to the relief sought could be considered here. An appeal upon the judgment-roll would not present all the facts upon which the motion is based—even if one may have a bill of exceptions when he has not been in court, and has taken no exceptions. Besides, it is a case in which it was eminently proper, if not necessary, that relief should first be asked from the trial court. Its action could not have been asked in any other mode. The defendant was not in court, and had no opportunity to be heard.
The order is reversed, and the cause remanded with directions to the court to grant appellant’s motion.
Harrison, J., Garoutte, J., and Henshaw, J., concurred.