Supreme Court, February, 1911. [Vol. 71. by reason of the decree of the Orphans' Court in New Jersey, that the forty-five shares were delivered to the plaintiff as collateral security for the payment of the note of $4,500, and the amount remains unpaid, the plaintiff is entitled to a decree as prayed for. Ordered accordingly. AUGUSTUS T. POST, Plaintiff, v. EMMA C. POST, Defendant. (Supreme Court, New York Special Term, February, 1911.) Divorce Foreign divorces and allowances -Jurisdiction of foreign court Matrimonial domicile. Former adjudication - Who may claim the estoppel-Rule that only parties or privies can take advantage of estoppel. Where a man and his wife who were married in Louisiana in 1871 went to Texas to live in 1875 and acquired a matrimonial domicile there which still continued when the wife deserted her husband and when he brought suit against her and recovered a decree for absolute divorce in that State, such judgment is valid. Where the wife thereafter married in this State and later sued for a separation, but the defendant counterclaimed for annulment of the marriage on the ground that her former husband was living and that the Texas decree was invalid and recovered judgment for the annulment of the marriage, such decree of annulment remaining unreversed serves to dissolve the second marriage, but is not conclusive against the wife as to the validity of the Texas decree in a suit brought by a third husband to annul his marriage to her on the same ground. Where the wife after her second divorce married a third time, her husband may not maintain an action to annul his marriage to her on the ground that her first and second husbands were living at the time and the former decrees were invalid. ACTION for a divorce. Charles W. Coleman, for plaintiff. John J. Kirby, for defendant. PLATZEK, J. The defendant has been three times married. Her first marriage was January 5, 1871, to John S. Keaghey, in New Orleans, La. In March, 1882, Keaghey Misc.] Supreme Court, February, 1911. commenced an action for divorce against his wife, on the ground of abandonment, in the District Court of Jasper county, Tex. The notice of the commencement of the suit and a certified copy of the complaint were personally served on the defendant in that action in the city of New Orleans, La. She did not formally appear, authorize an appearance or interpose an answer to the suit. When the case was reached for trial she failed to appear and defend, and the court appointed a practicing attorney of the court, pursuant to the laws of Texas, to represent her. A decree of absolute divorce was granted to the husband by the court March 9, 1882. On August 4, 1895, the defendant married Daniel Holliday in the city of New York. In April, 1897, she instituted suit against Holliday in this court for a separation. By way of defense he pleaded that she had a husband living at the time of her marriage to him. He also asserted that the Texas divorce from Keaghey was void because the defendant in the Texas action had not been personally served with process within the State of Texas. This action was tried before Mr. Justice Russell (deceased), who directed judgment on March 5, 1898, annulling the marriage between Holliday and the defendant. The decree was not entered until December 1, 1898. The plaintiff and the defendant herein were duly married in this State seven days thereafter. This action is brought to procure a judgment declaring the marriage between Augustus T. Post and Emma C. Post, the parties hereto, null and void on the ground that when the marriage was solemnized between the Posts "the defendant (wife) was still married. The general rule is that the law of the matrimonial domicile of the parties governs in actions for divorce the same rule by analogy applies to an action for the annulment of a marriage." Kinnier v. Kinnier, 45 N. Y. 535; Earle v. Earle, 141 App. Div. 611. The answer of the defendant admits the prior marriage to Keaghey and to Holliday, and that both of them were living on December 8, 1898, when she married Post. As to the first marriage, a judicial decree of a competent court in the State of Texas divorcing the defendant from Keaghey is alleged. The marriage to Holliday is averred to have been annulled Supreme Court, February, 1911. [Vol. 71. by a judgment of the Supreme Court of the State of New York entered December 1, 1898. If the court in Texas which granted the decree of divorce to Keaghey had no jurisdiction of the subject-matter and of the parties to the action, then the judgment rendered is void and not entitled to recognition or enforcement in the courts of this State. Where it appears that the courts of a sister State had such jurisdiction then the courts of this State will give full faith and credit to its judgment and decree. The important question in this case is whether on February 15, 1882, when the defendant was served with the papers in the Texas divorce suit in New Orleans, she was domiciled in the State of Louisiana or whether her matrimonial domicile was then in the State of Texas. It is not disputed that the Keagheys after marriage resided in New Orleans until November, 1875; that they then removed to Galveston, Tex., where they continued to live together as husband and wife until May, 1878, and that Mrs. Keaghey at that time went to New Orleans and secured employment in the United States mint. Three children were born to the couple, two daughters and a son. Before leaving Galveston Mrs. Keaghey placed the girls in the Ursuline Convent in Galveston and took her son, of tender years, with her. She returned to Galveston frequently to see her children. Then came a time when the two daughters were transferred to New Orleans, and the boy went to live with the father and grandfather in Texas. Mrs. Keaghey testified that while employed in the mint in New Orleans and at all times after May, 1878, and until the divorce was granted to her husband she regarded Galveston, Tex., as her only domicile. Her testimony as to the matrimonial domicile is corroborated by her former husband Keaghey and two other witnesses. Mr. Keaghey has been since November, 1875, domiciled in Texas and still resides in that State. An existing domicile continues until another is acquired elsewhere, and is not lost by temporary absence, or even by desertion or abandonment, until a new one is intentionally established. De Meli v. De Meli, 120 N. Y. 485; Harris v. Harris, 83 App. Div. 123; Matter of Newcomb, 192 N. Y. 238; Dupuy v. Wurtz, 53 id. 556. In Callahan v. Callahan, Misc.] Supreme Court, February, 1911. 65 Misc. Rep. 172, Andrews, J., says: "In determining the validity of a foreign decree of divorce obtained without personal service or appearance, three elements are to be considered: 1. The domicile of the plaintiff. 2. The domicile of the defendant. 3. The matrimonial domicile. * * * If the plaintiff and defendant are both domiciled there, the decree is valid even if the defendant may be actually present here. And the presumption is that the domicile of the husband is that of the wife. * * * If the plaintiff is domiciled there and the matrimonial domicile is there also, the decree is valid even though the defendant is domiciled here. This matrimonial domicile may be distinct from the present domicile of both husband and wife. Presumptively it is identical with the domicile of the husband. But where the wife has acquired a separate domicile it is the place where they last lived together as husband and wife with the intent of making that place their fixed home." In Atherton v. Atherton, 181 U. S. 155, it is held: "There is no doubt of the proposition that a decree of divorce may be lawfully obtained at the matrimonial domicile, notwithstanding that the defendant may have taken up his or her residence separate from the other party in another state, providing that the law of the domicile with respect to the personal service or publication be scrupulously observed. ** *This case does not involve the validity of a divorce granted on constructive. service by the court of a State in which only one of the parties ever had a domicile, nor the question to what extent the good faith of the domicile may be afterwards inquired into. In this case the divorce in Kentucky was by the court of the State which had always been the undoubted domicile of the husband and which was the only matrimonial domicile of the husband and wife. The single question to be decided is the validity of that divorce, granted after such notice had been given as was required by the statutes of Kentucky." That Galveston, Tex., was the matrimonial domicile of the Keagheys, husband and wife, when the wife deserted her spouse, when the action for divorce in Texas was begun and when the decree in the suit was entered is conclusively established. The Keaghey action was brought in pursuance of Supreme Court, February, 1911. * [Vol. 71. the statutes of the State of Texas, and the laws of that State applicable to a suit for divorce were strictly complied with in the prosecution of the action. The court had jurisdiction of the subject-matter of the action and of the parties. The decree of annulment of the marriage of the defendant to Holliday, based upon the alleged invalidity of the Texas divorce, is urged by the plaintiff as res adjudicata as to the status of the defendant as the wife of Keaghey. The Holliday decree of annulment has not been reversed. This decree adjudged " that the marriage between the plaintiff and the defendant be, and the same is, hereby null from the date of this judgment. * * That the parties plaintiff and defendant are free from the obligation of marriage with each other." The decree was entered December 1, 1898. The Posts were married December 8, 1898. The gist and main point in the Holliday suit was whether the parties thereto were to be freed from each other. By the terms of the decree they were freed from their marital relations and obligations. The mere recital of a reason for the adjudication in the decree is not absolutely conclusive. A judgment, until reversed or corrected, may be relied upon by any party to the action in which it was rendered. It is argued that a suit for divorce is an action in rem. "Such a judgment is not conclusive against the whole world of the facts which the decree recites, or on which it necessarily proceeds, except as the particular subject-matter then before the court." Townsend v. Van Buskirk, 22 App. Div. 444. The Keaghey divorce is valid. The plaintiff in this action was a stranger to the Holliday suit and was in no way affected by it. The status of the defendant only was in question in the Holliday action. The status of the plaintiff, Augustus T. Post, was not before the court. Ruger v. Heckel, 21 Hun, 489; affd., 85 N. Y. 483; Hall v. Hall, 139 App. Div. 120. The late Mr. Justice Dayton on granting an application for alimony in an action for separation by this defendant against this plaintiff considered the status of Mrs. Post. In a learned opinion he held: "It is well settled that alimony will not be awarded unless the court has reason to believe that the plaintiff may succeed in her action. If her cause is helpless alimony will be refused. |