St. Sure v. Lindsfelt

Cassoday, J. The record of the divorce granted by the ecclesiastical court in Sweden, February 3,1864, mentioned in the foregoing statement, appears to be sufficiently au [349] thenticated to be admissible in evidence under our statute. E. S. sec. 4139. It is conceded by both parties that the only question for determination is whether that decree of divorce is valid and operated as a legal • separation of Adolph and Elise at the time' it was rendered. In this country it is prescribed by constitutional compact that full faith and credit must be given in each state to the public acts, records, and judicial proceedings of every other state; and yet it is well settled that the record of a judgment rendered in another state may be contradicted as to the facts necessary to give the court jurisdiction, and if want of jurisdiction appear upon the face of the record, or is shown either as to the subject matter or the person or, in proceedings m rem, as to the thing, the record will be regarded as a nullity. Thompson v. Whitman, 18 Wall. 457; Pennoyer v. Neff, 95 U. S. 714; Simmons v. Saul, 138 U. S. 439; Bartlett v. Knight, 1 Mass. 401; S. C. 2 Am. Dec. 36; Starbuck v. Murray, 5 Wend. 148; S. C. 21 Am. Dec. 172; Taylor v. Barron, 30 N. H. 78; S. C. 64 Am. Dec. 281; Rape v. Heaton, 9 Wis. 328; S. C. 76 Am. Dec. 269; Renier v. Hurlbut, 81 Wis. 24. The rule is certainly as strong, if not stronger, when applied to a judgment rendered in a court of a foreign country, towards which no such duty is enjoined, and especially where the jurisprudence of such foreign country is in no sense based upon the common law. Adolph and Elise were married in Sweden in 1835. After remaining there seven years, they both came, with their children, to the United States, and for a time resided in New York, and then came to and continued to reside in this state during the remainder of their respective lives, as mentioned in the foregoing statement. The divorce proceedings were not instituted until eleven years after they had departed from Sweden and taken up their residence in the United States. Such proceedings were pending for [350] eleven years before the decree of divorce was entered. It is true, Elise bad returned to Sweden a few months before she filed her petition for such divorce, March 1, 1853; but she came back to Adolph in Wisconsin, and continued to live with him as his wife for five years, and until he went to the war, which was about a year prior to the rendition of the decree of divorce. It is possible, if not probable, that at the time she filed that petition she intended to remain in Sweden and obtain a divorce. Had she so remained there until after that decree, the divorce would perhaps have been regarded as valid by the laws of Sweden. Undoubtedly every country has the power to absolutely fix, regulate, and control the marriage status of each and all of its own citizens; but no country or state has any power to fix, regulate, or control such status as to the citizens of any other country or state. Cook v. Cook, 56 Wis. 208; Both v. Roth, 104 Ill. 35; S. O. 44 Am. Rep. 81. It logically follows that the Sweden court had no jurisdiction or power to dissolve the marriage relation between Adolph and Elise, twenty-two years after they had both abandoned that country and taken up their residence in this, and six years after Elise had abandoned her temporary visit or residence there and returned to Adolph as his wife. In speaking of the residence in this state essential to give the court jurisdiction, RyaN, C. J., aptly said: “No mere pretense of residence, no passing visit, no temporary presence, no assumption of residence here pro hao vice only, nothing short of actual abode here, with intention of permanent residence, will fill the letter or the spirit of the statute.” JDutcher v. Dutcher, 39 Wis. 658; Cook v. OooJc, 56 Wis. 206. “The legislature was legislating for the citizens of this state, not for others.” Ibid. These propositions are still more significant when applied to any statute, law, or custom of any foreign country like Sweden. Again, the only ground for the divorce stated in the rec [351] ord is that Adolpb bad absconded from- the kingdom, and had been, December 11, 1844, by a judgment of a district court, “ sentenced as a cheater, ... to stand at the pillory at a public place, for his shame, during two hours, and then to suffer penal servitude for five years in any of the fortresses of the realm.” This presupposes such conviction and sentence without notice or hearing two years after Adolph and his wife and family had. left Sweden and become permanent residents of the United States. No statute, law, or custom has been alleged or proved authorizing a divorce on such a conviction and sentence procured in such a way; and the courts of this state are not authorized to presume the existence pf any so repugnant to our own laws. Walsh v. Dart, 12 Wis. 635; Kellam v. Toms, 38 Wis. 592; Osborn v. Blackburn, 78 Wis. 209; 1 Greenl. Ev. §§ 5, 43, 486, and notes. Presumptions as to foreign laws are generally confined to those states and countries in which the common law is the law of the land, as in the several states of this country and Great Britain; and even then they do not extend to such statutory enactments as are penal in their nature. Hull v. Augustine, 23 Wis. 383; Murphy v. Collins, 121 Mass. 6; Oidler v. Wright, 22 N. Y. 472; Leonard v. Columbia S. N. Co. 84 N. Y. 48; Smith v. Whitaker, 23 Ill. 367; Gunn v. Howell, 27 Ala. 663; S. C. 62 Am. Dec. 785; 1 Greenl. Ev. § 43, and note. Besides, in the record of the divorce in question it does not appear that any notice was ever served or attempted to be served on Adolph by publication 'or otherwise, notwithstanding he had been outside of the jurisdiction of the realm for many years; nor is there anything in that record showing or tending to show any appearance by him or in his behalf therein; nor are there any facts recited or mentioned therein which, according .to our laws, could give jurisdiction. For the reasons stated, we must hold that the divorce [352] was a nullity. This being so, it is manifest that Elise continued to be the wife of Adolph until her death, March 18, 1886: It necessarily follows that the marriage of the defendant, OLIve, to Adolph, August 30,1883, was an absolute nullity, and gave her no rights' whatever as his widow. Williams v. Williams, 63 Wis. 58, and cases there cited. By the Court. — -The judgment of the circuit court is reversed, and the cause is remanded for further proceedings according to law.