Harrison v. Harrison

20 Ala. 629

• Court: Supreme Court of Alabama
• Decided: January 15, 1852
• Status: Published

Opinion

CHILTON, J.

~We bave listened witb mucb attention to tbe able arguments of tbe respective counsel engaged in tbis cause, and have carefully examined tbe several positions and numerous authorities submitted by them, and having given to tbe case the consideration which tbe novelty and importance of several of tbe questions involved in it demand, it is made my duty to announce, as briefly as I may, tbe conclusions attained by tbe court.

1. Tbe first and most important inquiry is, bad tbe Chancery Court of tbe State of South Carolina jurisdiction to render tbe decree here sued upon. If it bad not, an end is at once put to tbe case.

No principle of law appears to be more generally recognized, or better established by judicial decisions, than that tbe domicil of tbe husband determines that of tbe wife. Mr. Phillimore, in bis work on Domicil, (p. 27,) says: “The maxim of tbe Roman and continental civilians, as also of tbis country and America, is, that as tbe wife takes the rank, so she does tbe domicil of her husband.”

Judge Story, in bis work on tbe Conflict of Laws, § 46, says: “A married woman follows tbe domicil of her husband. Tbis results from tbe general principle, that a person who is under tbe power and authority of another, possesses no right to choose a domicil.”

In legal contemplation, husband and wife constitute one body, and cannot be domiciled in different States, so long as tbe relation upon which their legal identity depends, remains unimpaired. Dougherty v. Snider’s Ex’r. 15 S. & R. 84, 90.

2. Applying tbis well established rule of law to tbe case before us, it is quite clear, that upon tbe removal of Kirkland Harrison and tbe plaintiff below, who was then bis wife, from tbe State of South Carolina, and their permanent settlement in Dallas County in this State, the latter place became tbeir domicil, and that the return of the wife to the place of their former residence in South Carolina, within a few months after their removal to this State, in nowise operated to change that domicil. At the time Mrs. Harrison filed her bill in the Chancery Court of Fairfield District, in the State of South Carolina, her legal domicil was in this State, although she resided in that, which was her matrimonial as well as actual domicil.

In Donnegal v. Donnegal, 1 Ad. Ecc. Rep. 19, it was said that a party may have two domicils, the one actual, the other legal, but that the husband’s actual and the wife’s legal domi-cil are one, wheresoever she may be personally resident. See also Shackell v. Shackell, and Warrender v. Warrender, cited by Mr. Phillimore on Domicil, p. 31.

Having shown that, at the time of the exhibition of the bill by Mrs. Harrison, both she and her husband were legally domiciled in this State, it remains to consider whether, conceding this fact, the jurisdiction of the court as respects the subject-matter of the bill attached, and what effect the actual non-residence of Kirkland Harrison had upon its power to proceed.

3. It is insisted, on the part of the counsel for the appellant, that the subject-matter of the South Carolina controversy was the marriage relation existing between these parties. They contend, that upon the removal of the parties to this State they brought with them that relation, and that the duties and obligations imposed upon them as springing out of it, not only as affecting themselves and their family, but also as affecting society with which they stand connected, must be under the sole regulation and control of our own law, and not the law of a foreign jurisdiction.

Now, it is most unquestionably true, that no independent State could for a moment tolerate any interference on the part of a foreign tribunal with this, the most sacred and important of all the domestic relations which obtain among its citizens. It is a relation, the intermeddling with which involves consequences most usually reaching far beyond the immediate parties to it, as it lies at the very basis of civilized society, and becomes so interwoven with its very framework, as to render it the peculiar object of exclusive control, by tbe laws and tribunals where it exists: ■ So that, had the State of South Carolina attempted to annul the marriage, it is very clear the subject-matter, the marriage relation, being without the jurisdiction of that court, its sentence would have been utterly void, and no consent could have given it jurisdiction; for the rule is too well settled to admit of any doubt, that consent in such case cannot confer jurisdiction. 2 Bacon’s Abr. (Bouv. Ed.) 618; Wyatt v. Judge, 7 Por. R. 37; Merrill v. Jones, 8 ib. 554-6; McCall v. Peachey, 1 Call, 55; Lindsay v. McClelland, 1 Bibb, 263; Brown v. McKee, 1 J. J. Mar. 476; see also Story’s Conf. of Laws, § 230, a.

In the case of Hanover v. Turner, 14 Mass. Rep. 227, which was an action of assumpsit against the husband for necessaries furnished the wife, who had, by his cruel treatment, been forced to abandon him, the husband pleaded that he had obtained a divorce from his wife anterior to the furnishing of the supplies to her; but it appeared he had gone to Vermont, and resided temporarily in that State for the purpose of obtaining a divorce, the wife never having been within that jurisdiction, and that the alleged ground of divorce took place in Massachusetts, the State of their permanent domicil. The court held the divorce granted by the Vermont court utterly void, and said : “If we were to give effect to this decree, we should permit another State to govern our citizens, in direct contravention of our own laws, and this can be required by no rule of comity.” Such is undoubtedly the correct rule of law, and we recognize it to the fullest extent; but upon a calm and careful review of the facts of this case, we feel constrained to hold that they do not bring it within the influence of this principle.

4. In this ease the parties were married in South Carolina, and resided permanently there for several years, and assuming the jurisdictional facts stated in the bill to be true, as we must when the judgment or decree is collaterally attacked, it appears the husband, while domiciled in that State, by his improper conduct towards the wife, furnished her the cause of complaint, which is made the ground of the relief afforded by the decree now sued upon.

While resident there, a separation took place, by reason of bis mal-treatment, and Mrs. Harrison was induced to return to him, upon his promise of amendment and future kind treatment. This promise he failed to redeem, and by his failure deprived himself of the benefit of the intervening pardon or condonation of the wife. She became thereupon remitted to her original remedy afforded by the tribunals of that State, for the cruelty and abuse inflicted upon her. Condonation is accompanied with an implied condition that the injury shall not be repeated, and that the repetition of the injury takes away the condonation, and operates a revivor of former acts. Durant v. Durant, 1 Hagg. Ecc. Rep. 761; ib. 781; ib. 130; Shelford on Divorce, 446, mar. p. Besides, this doctrine of forgiveness as a bar, is not presumed so readily against the wife as the husband, for it is esteemed both legal and meritorious for her to be patient under her suffering, stimulated by the hope that by her meek and proper deportment toward her husband she may win him back to a sense of duty, and produce in him a reformation. Forbearance, therefore, to abandon him and sue, does not weaken her title to relief. Durant v. Durant, supra; Shel. on Div. 448.

It is very clear that, according to the facts of the case presented by the record of the wife’s recovery in the Chancery Court of Fairfield District, she had a right, before her removal to this State, to relief against her husband, according to the law as administered in the Chancery Courts of South Carolina. That relief would not extend to annulling the marriage, for it appears that divorces are never granted in that State; but it extends to the protection of the wife, and a provision for herself and infant child, by way of maintenance or alimony, to continue until the husband is willing to take his wife back and treat her with conjugal affection. The marriage remains of force notwithstanding the decree, and the husband is shorn of his power to inflict further injury upon his wife, whom, by his bad conduct and ill treatment, he has driven from his house. Although her legal domicil was in Alabama, yet she 'was actually resident in South Carolina, and as sucb, entitled Jo the protection afforded by the laws of that State. Had her husband gone there and attempted violence upon her, or by force to take her out of that jurisdiction, so as to continue his cruel treatment towards her, we entertain no doubt as to the powers and jurisdiction of that court to restrain him, and to grant the relief, usually afforded in such cases. He was subject to be proceeded against before he left, and being found within the jurisdiction, even temporarily, the wife could enforce against him her claim for maintenance, while the court would provide for her protection by restraining him from molesting her. The question of legal do'micil would interpose no obstacle in such case; for when it is necessary to the protection of the wife, against the actual or threatened injury of the husband, the law (and much lhore will equity) pretermits the legal fiction of their unity. It is upon this principle that she may give evidence against her husband when prosecuted for injuries inflicted upon her, and compel him to find sureties for the peace. 1 Grreenl. on Ev. §. 343.

The transfer of their domicil to this State does not destroy the wife’s right to proceed in South Carolina, for a ground of complaint complete in that State before their removal, provided the parties can be subjected to that jurisdiction by being personally served with the process of the court.

In Dorsey v. Dorsey, cited by Mr. Justice Story in his Conflict of Laws, § 230 a, Mr. O. J. G-ibson, after stating that the transfer of allegiance and domicil is a contingency which enters into the views of the parties when they contract marriage, and of which the wife consents to bear the risk, proceeds to say, that “ by sanctioning this transfer beforehand, we consent to part with the municipal governance incident to it; but with this limitation, ive part not with the remedy of past transgression.”

It follows, therefore, that unless there was a want of jurisdiction as to the person of the defendant, the South Carolina decree is valid, since it does not annul or attempt to impair the relation of marriage, but only affords a remedy for the violation of obligations, and seeks to enforce duties growing-out of that relation.

Upon the subject of the jurisdiction as affected by the non-residence of Kirkland Harrison, a few words may suffice. Conceding that he might have availed himself of his residence in this State to have defeated a recovery, we think it clear that his failure to raise the objection must be regarded.as a waiver óf it. The rule appears to be well established, that where tbe court bas jurisdiction of tbe subject-matter, and tbe party is privileged from its jurisdiction, be may waive sucb privilege. 2 Bacon’s Abr. by Bouvier, 618, and autborities there cited. It is also settled, that pleading to tbe merits, or submitting to answer without raising tbe objection to tbe jurisdiction on account of sucb privilege, is a waiver of tbe objection. Daniel’s Cb. Pr. 715; Story’s Eq. PL § 721, and cases there cited.

These considerations lead us to tbe conclusion, that tbe decree sued on is not void for want of jurisdiction.

5. But it is strenuously urged that, conceding tbe Chancery Court of Fairfield District bad jurisdiction to render this decree, tbe divorce which tbe husband subsequently obtained from tbe plaintiff below, operates a complete bar to her recovery. On tbe other side, it is replied, that tbe divorce is void for want of jurisdiction over tbe person of tbe wife; or that, conceding it to be valid, tbe previous decree in South Carolina having determined upon tbe death of one of tbe parties or their reconciliation, as periods when tbe provision for tbe wife’s support should cease, tbe Chancery Court of this State could not add to that decree, by bolding tbe provision should cease upon their divorce.

We shall not stop to inquire whether this divorce was regularly obtained, and was binding upon these parties. That identical question was before us at a previous term of this court, and after a full examination, we determined that tbe decree was not void. Tbe subsequent argument of tbe point, and tbe additional grounds taken, have failed to shake our opinion in tbe correctness of that decision.

But although that decree was predicated upon tbe ground of tbe wife’s abandonment of her husband, we think it by no means follows that it estops tbe wife, from recovering tbe amount decreed before its rendition as a provision for her support. No case bas been cited, and we have been unable to find one, which bolds, that a subsequent decree of divorce bas tbe effect to vacate and avoid, in this indirect manner, a moneyed decree previously rendered, as to tbe amount due upon it anterior to tbe divorce. To bold that tbe decree of divorce should have tbe effect of vacating tbe previous decree for tbe alimony due anterior to its rendition, would be to allow the party to do indirectly, what he could not have ao complished by a direct proceeding.

We are of opinion tbat both decrees may stand, so far as in their results they are not incompatible with each other. The subject-matter and object of each are wholly different. The first seeks to enforce the obligations and duties springing out of the relation of marriage; the second, entirely to annul that relation, and having effected the contemplated object, puts a period to the operation of the first, which is necessarily dependent upon that relation. True, the South Carolina court, not recognizing the doctrine of divorce, did not fix upon that as a period terminating the provision made by its decree for the wife; but when she seeks her remedy in this State, where divorces are granted, she submits to the law of the forum governing that remedy; and as by this law an end has been put; to the relation of marriage, as effectually as would have resulted from the death of either of the parties, as a consequence, all duties and obligations necessarily dependent upon the continuance of that relation, immediately cease.

After the best reflection we have been enabled to bestow upon this case, we come to the conclusion, that the plaintiff below is entitled, according to the decree which is the foundation of her action, to recover one-third of the nett annual income of her late husband, estimated to have been annually, $8,500, from the 18th day of April, 1837, down to the time of the divorce, which was the 15th January, 1844, embracing a period of seven years, less three months and three days.

The judgment of the Circuit Court, which is based upon an extension of the period to the death of the husband, is clearly erroneous, and must be reversed; and judgment must here be rendered for the correct amount, which is computed as follows; One-third annual income from 18th April, 1837, to 15th January, 1844, say six years and nine months, less three days, is $19,101 TV<r; from this sum must be deducted the sum of $730, the proceeds of the sale of the slaves, and also the sum of $7, 124, the moneys collected by the Commissioner from Messrs. Harrison and Whitaker, and paid to the complainant i,n South Carolina, leaving the amount for which judgment must be here entered $11,247

6 and 7. It is settled, that in the absence of evidence as to tbe interest law of another State, none can be calculated.; neither can this court judicially know the interest allowable in South Carolina, from the table required to be appended by the Secretary of State to the published acts of the Legislature. This point has several times been decided by us. Such evidence should have been offered in the primary court, that the opposite party might have controverted it, had he seen proper to do so.

Let the judgment be reversed, and accordingly rendered, -to be levied of the goods and chattels of the intestate in the hands of the plaintiffs in error unadministered, and let the plaintiffs in error recover their cost.