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Opinion of the Court.

So that in whichever way we view this case whether we consider the supplemental bill as an independent proceeding or as part of the original suit - the judgment sought to be enforced was rendered without that due process of law which is necessary to give it validity.

III. The defendant was in no way estopped or precluded from interposing this defence in this action.

MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.

The Federal question presented by this record is whether the judgment of the New York courts, in dismissing plaintiff's complaint, which sought to enforce a final decree of the Court of Chancery of New Jersey, gave due effect to the provisions of Article IV of the Constitution of the United States, which require that full faith and credit shall be given in each State to the judicial proceedings of every other State.

The record discloses, and it is conceded, that, upon its face, the decree of the Court of Chancery of New Jersey purports to be a final decree, granting the divorce, and adjudging the payment of the costs and alimony to recover which this suit was brought.

But the defendant seeks to avail himself of the well settled doctrine, that it is competent for a defendant, when sued in the court of his domicil on a judgment obtained against him in another State, to show that the court of such other State had not jurisdiction to render the judgment against him. To sustain this position in this court the defendant relies upon the sixth finding of the trial court, which was as follows: "That the above named defendant was never served with process in New Jersey under said supplemental bill, and never appeared therein or answered thereto, and the decree of the Court of Chancery of New Jersey, which was based entirely upon charges of adultery contained in said supplemental bill, did not, under the laws of that State, become binding upon said defendant personally."

It is undoubtedly true, as claimed by the defendant in error,

Opinion of the Court.

that if the judgment of the Court of Chancery of New Jersey was not binding upon the defendant therein personally in that State, no such force could be given to it in the State of New York; and it is contended that, as by the sixth finding, above recited, it is found that the decree was not binding personally on the defendant, under the laws of New Jersey, the Court of Appeals of the State of New York and this court must accept and cannot review such finding. And upon that finding the Court of Appeals said:

"The trial court found upon undisputed evidence that, under the law of New Jersey and the practice of its Court of Chancery, jurisdiction to render a judgment for alimony and costs on the supplemental bill, enforceable in that State against the defendant, could not be acquired without service of a new subpoena in the State, or by his appearance in the action subsequent to the filing of the supplemental bill. Service within the State was found to be, under the law and practice of the Court of Chancery of New Jersey, an indispensable prerequisite to the rendition of a personal judgment." Rigney v. Rigney, 127 N. Y. 408, 415.

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The plaintiff duly excepted to the findings and conclusions, and it is well settled that exceptions to alleged findings of facts because unsupported by evidence present questions of law reviewable in courts of error.

The only evidence adduced by the defendant to sustain his side of the issue as to the law in the State of New Jersey was the testimony of Daniel M. Dickenson, an attorney and counsellor at law of the Supreme Court of the State of New Jersey, and who had been employed for some years as chief clerk in the chancellor's office. This witness testified that, under the law and practice of New Jersey, a supplemental bill was, as to the matter not alleged in the original bill, an independent proceeding, and that, if there were no service of the subpoena issued under the supplementary bill and no appearance, the defendant would, as to the new matter contained in the supplementary bill, not be in court; but the same witness testified that there was no statute of New Jersey in terms requiring the issuing of a subpoena on any supplemental bill, nor was

Opinion of the Court.

he able to specify any New Jersey statute which, in his opinion, required such process to be issued on a supplemental bill in any suit in the Court of Chancery of that State, nor could he cite any judicial decision in that State holding such process to be necessary. He also testified that "by the practice in New Jersey, if the decree contains the fact that he was served, prima facie he was; if it does not, why, then there is no decree binding him personally; but so long as the decree stands against him in our State, why, of course, it is a good decree." He also stated that the statute conferring jurisdiction upon the Court of Chancery is in the revision of the New Jersey laws under the head of "Chancery Acts."

The plaintiff put in evidence so much of the revision as related to the Court of Chancery, and which disclosed no provision whatever requiring a new subpoena to be issued on any supplementary bill filed in the Court of Chancery, but it does contain provisions whereby orders directing absent defendants, whether within or without the State, to respond to the bill, and, on proof of personal service of such order, the chancellor may proceed to take evidence to substantiate the bill, and to render such decree as the chancellor shall think equitable and just, and that any defendant upon whom such notice is served shall be bound by the decree in such cause as if he were served with process within the State. New Jersey Rev. Stat. 1877.

At all

As the defendant's only expert witness testified that the rules and regulations of the Chancery Court were to be found in the statutes, it would seem at least questionable whether his opinion, upon the question as to how and when that court acquires jurisdiction over a defendant in an original or supplemental bill, was competent evidence in the case. events, we do not read his testimony as alleging that where the court has already acquired jurisdiction over a defendant by personal service within the State, and then, after appearance by counsel, absents himself from the State, and when a supplemental bill is filed in the suit, service on him of a new subpoena within the State is an indispensable prerequisite to the rendition of a personal decree on such supplemental bill.

Opinion of the Court.

And when asked directly by defendant's counsel whether such a decree would be effectual in New Jersey to bind the defendant personally, he answered, "I have never known any case decided in New Jersey upon that point."

In the absence of any statutory direction on the subject and of any reported decision of the Supreme Court of that State, we are justified in finding the law to be as declared in the very case in hand, where the chancellor of the Chancery Court of New Jersey has entered a final decree based upon an original bill, the process under which was served upon the defendant within the State, and upon a supplemental bill, a copy of which with a rule to plead was served upon the defendant without the State. So long as this decree stands it must be deemed to express the law of the State. If the defendant deemed himself aggrieved thereby his remedy was by an appeal.

In Cornett v. Williams, 20 Wall. 226, 249, where, in a Circuit Court of the United States, an attempt was made to destroy the effect of a judgment rendered by a county court by alleging error, this court said: "The power to review and reverse the decision so made is clearly appellate in its character, and can be exercised only by an appellate tribunal in a proceeding directly had for that purpose. It cannot and ought not to be done by another court, in another case, where the subject is presented incidentally, and a reversal sought in such collateral proceeding. The settled rule of law is that jurisdiction having attached in the original case, everything done within the power of that jurisdiction, when collaterally questioned, is to be held conclusive of the rights of the parties, unless impeached for fraud. Every intendment is made to support the proceeding. It is regarded as if it were regular and irreversible for error. In the absence of fraud no question can be collaterally entertained as to anything lying within the jurisdictional sphere of the original case. Infinite confusion and mischiefs would ensue if the rule were otherwise. These remarks apply to the order of sale here in question. The county court had power to make it, and did make it. It is presumed to have been properly made, and the question of its

Opinion of the Court.

propriety was not open to examination upon the trial in the Circuit Court. These propositions are sustained by a long and unbroken line of adjudications in this court. The last one was the case of McNitt v. Turner, 16 Wall. 366.”

The principle was very clearly expressed by Mr. Justice Baldwin in Voorhees v. Bank of United States, 10 Pet. 449, 474: "The line which separates error in judgment from the usurpation of power is very definite; and it is precisely that which denotes the cases where a judgment or decree is reversible only by an appellate court, or may be declared a nullity collaterally, when it is offered in evidence in an action concerning the matter adjudicated, or purporting to have been so. In the one case it is a record importing absolute verity; in the other, mere waste paper; there can be no middle character assigned to judicial proceedings, which are irreversible for error. Such is their effect between the parties to the suit; and such are the immunities which the law affords to a plaintiff who has obtained an erroneous judgment or execution.”

This rule is recognized in the State of New York. In Kinnier v. Kinnier, 45 N. Y. 535, 542, it was said: "A judgment of a sister State cannot be impeached by showing irregularities in the form of proceedings or a non-compliance with some law of the State where the judgment was rendered relating thereto, or that the decision was erroneous. Jurisdiction confers power to render the judgment, and it will be regarded as valid and binding until set aside in the court in which it was rendered."

Even if, therefore, it was the opinion of Mr. Dickenson, the defendant's expert witness, that the chancellor of New Jersey erred in thinking that jurisdiction over the defendant personally was conferred by the service on him within the State of the subpoena under the original bill, and by the service on him, without the State, of a copy of the supplemental bill and of a rule to plead, such opinion does not support the finding of the trial court that, under the laws of the State of New Jersey, the decree sued on and offered in evidence was not binding upon the defendant personally. The opinion of the chancellor differed from that of the witness, and, what is more im

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