Statement of Facts.

such notice was on the 1st of March, 1867, and the last publication was on the 26th of March, 1867; that said certificate was filed in said cause on the 22d of March, 1867.

"7th. That the defendant in the said divorce suit (the plaintiff in this suit) was not notified of the pendency thereof except as aforesaid.

"8th. That a decree was entered in the said suit, brought in the said District Court of Gilpin County, on the 26th of June, 1868, divorcing the said James W. Clayton from the defendant therein (the plaintiff in this suit), which said decree recites at the comment thereof that it appearing to the court that due service had been had upon said defendant before the 4th of April, 1867, and that such service had been made, according to the laws of the Territory of Colorado and the rules and practice of that court, more than ten days previous to the first day of the April term of said court, and that the defendant was called and defaulted.

"9th. That the said James W. Clayton and the defendant in this suit, Sarah A. Clayton, intermarried in the year 1870, at and within the State of Colorado.

"10th. That the said James W. Clayton departed this life about the 10th of October, 1874, leaving the said plaintiff, and two children, issue of his marriage with the said plaintiff, him surviving.

“11th. That at and before the time of his death the said James W. Clayton was seized in fee of the premises described in the complaint as situated in Jefferson County.

"12th. That at and before the time of his death the said James W. Clayton was the owner of the premises described in the complaint as situated in the County of Gilpin, and in virtue of such ownership was entitled to hold, occupy and possess the same.

"13th. That the value of the use and occupation of the said premises since the 3d of April, 1877, and the rents, issues, and profits thereof, as to the undivided one-half part thereof, is seventeen hundred and twenty-five dollars."

Upon the facts so found, the court made the following rulings and conclusions in matter of law:

"First. That because the said defendant therein (the plaintiff in this suit) was not properly notified of the pendency of said

Opinion of the Court.

suit in the District Court of Gilpin County, the decree of divorce entered therein was and is void and of no effect.

"Second. That the said plaintiff in this suit, in virtue of her marriage with the said James W. Clayton, was and is, with the surviving children before mentioned, his heir at law, and as such is entitled to one-half part of his estate.

"Third. That the said plaintiff is the owner in fee of the undivided one-half part of the estate described in the complaint as situated in Jefferson County.

"Fourth. That the said plaintiff is the owner and under the laws of the State is entitled to hold, occupy and possess the undivided one-half part of the estate described in the complaint as situated in Gilpin County.

"Fifth. That the said plaintiff is entitled to recover of the said defendants, as and for the rents, issues, and profits of said premises, and damages for the detention thereof, the said sum of seventeen hundred and twenty-five dollars."

Judgment was accordingly rendered for the plaintiff on March 3d, 1879; and the defendants tendered a bill of exceptions, and sued out this writ of error. The plaintiff in error Clayton having died since the entry of the case in this court, her heirs have been made parties in her stead.

Mr. Willard Teller for plaintiffs in error.

Mr. L. C. Rockwell for defendant in error.

MR. JUSTICE GRAY delivered the opinion of the court. After reciting the facts in the foregoing language, he continued :

The true question in this case is, which of the two Sarah A. Claytons was the lawful wife of James W. Clayton at the time of his death, and as such entitled by the statutes of Colorado to inherit one-half of his real estate. Revised Statutes of 1867, ch. 23; General Laws of 1877, ch. 26. In order to avoid the confusion arising from the identity of name, from their transposition on the docket of this court, and from the death of one of them pending the writ of error, it will be convenient to designate them, as in the record of the court below, the defendant in error as the plaintiff, and the plaintiff in error as the

Opinion of the Court.

defendant. Mackey, the other plaintiff in error, occupied the land as tenant only, and needs no further mention.

-The courts of the State of the domicil of the partics doubtless have jurisdiction to decree a divorce, in accordance with its laws, for any cause allowed by those laws, without regard to the place of the marriage, or to that of the commission of the offence for which the divorce is granted; and a divorce so obtained is valid everywhere. Story Conflict of Laws, § 230 a; Cheever v. Wilson, 9 Wall. 108; Harvey v. Farnie, 8 App. Cas. 43. If a wife is living apart from her husband without sufficient cause, his domicil is in law her domicil; and, in the absence of any proof of fraud or misconduct on his part, a divorce obtained by him in the State of his domicil, after reasonable notice to her, either by personal service or by publication, in accordance with its laws, is valid, although she never in fact resided in that State. Burlen v. Shannon, 115 Mass. 438; Hunt v. Hunt, 72 N. Y. 218. But in order to make the divorce valid, either in the State in which it is granted or in another State, there must, unless the defendant appeared in the suit, have been such notice to her as the law of the first State requires.

The decree of divorce set up in this case was ol tained before the admission of Colorado into the Union, and under the Revised Statutes of 1867 of the Territory of Colorado.

By chapter 26 of those statutes, relating to divorce and alimony, each District Court of the Territory, sitting as a court of chancery, had jurisdiction, upon the like process, practice and proceedings as in other cases in chancery, to decree a divorce from the bond of matrimony to either husband or wife, for the other's wilful desertion and absence for one year without reasonable cause.

Chapter 13 of the same statutes, relating to chancery proceedings, contained the following provisions: By §§ 5, 6, upon the filing of the bill the clerk was to issue a summons, returnable at the next term after its date, directed to the sheriff of the county in which the defendant resided, if a resident of the Territory, requiring him to appear and answer the bill on the return day of the summons. By § 7, service of the summons

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was to be made by reading it to the defendant, or leaving a copy with one of his family at his usual place of abode, ten days before the return day. By § 8, whenever any complainant filed in the clerk's office an affidavit showing that a defendant resided or had gone out of the Territory, the clerk was to cause notice to be published in a newspaper in the Territory for four successive weeks, the first publication to be made at least thirty days before the return day. At the end of that section was this clause: "But this proceeding shall not dispense with the usual exertion, on the part of the sheriff, to serve the summons." By § 9, if thirty days intervened between the filing of such affidavit and the return day, or if service of process was made, and the defendant did not appear on the return day, the bill might be taken for confessed. By § 10, if the case was continued for want of due publication or service, the like proceeding might be had at the next term as might have been had at the first term. By § 11, if the summons was not returned, executed, on the return day, the clerk might issue a further summons. By § 12, the complainant might cause personal service to be made, on any defendant residing or being out of the Territory, not less than thirty days before the commencement of the term at which he was required to appear; and such service, proved by affidavit, was to be as effectual as if made in the usual form within the limits of the Territory. By § 15, any defendant, not summoned or notified to appear, as above required, and against whom a final decree should be entered, might within one year after notice to him in writing of the decree, or within three years after the decree, if no such notice should be given him, apply to the court and obtain a hearing, as if he had seasonably appeared and no decree had been made; and at the end of three years the decree, if not so set aside, should be deemed and adjudged confirmed against him, and the court might make such further order in the premises as should be requisite and just.

Under those statutes, as repeatedly and uniformly construed by the higher courts of Colorado, when the sheriff returns the summons on the day of its date, instead of keeping it in his possession until the return day for the purpose of making the

Opinion of the Court.

usual exertions to serve it, a notice by publication only will not sustain a decree.

The Supreme Court of the Territory, at February Term, 1873, in Palmer v. Cowdrey, 2 Colorado, 1, and Wise v. Brocker, Ib. note, reversed decrees in ordinary proceedings in chancery for such a defect, and assigned its reasons as follows:

"The law intends that service of the summons shall be made on the defendant, if he can be found within the jurisdiction during the life of the writ. If the defendant is not in the county at the time the summons is placed in the hands of the officer, he may come into the county before the return day, and if notice by publication has been given, it is nevertheless the duty of the officer to serve the summons, if he can find the defendant in his bailiwick. To the performance of this duty it is necessary that the officer should retain the summons in his hands until the return day; for after the return of non inventus of course the officer cannot obey the command of the writ. In the present case the sheriff returned the summons more than one month before the return day, and thereafter he could not comply with the statute by making the usual exertion to serve it. Whether the defendant came into the county after the return and during the life of the writ, we do not know, nor can we be informed except by the return of the proper officer. By the return as it stands in the record, it does not appear that service could not have been made during the life of the writ, and the court had no authority to proceed upon notice by publication without such evidence." 2 Colorado, 6.

Since the admission of Colorado into the Union, the Supreme Court of the State, at December Term, 1877, made a like decision, for the same reasons, and said:

"Without holding the writ until the return day and a proper return accordingly, the publication of notice will not avail to confer jurisdiction upon the court. to render final decree upon the petition." Vance v. Maroney, 4 Colorado, 47, 49.

Upon the strength, and as the necessary result, of those decisions, the Supreme Court of the State has twice held that