Newcomb's Executors v. Newcomb. denied and a new trial refused in such cases. When the present Constitution of Kentucky was adopted, the legislative department of the government was divested of that exercise of sovereignty, by which the institution of marriage was practically made one of convenience only, liable to be dissolved at the instance of one of the parties to the contract, and for reasons that were left alone to legislative discretion. By section 32 of article 2, State Constitution, it is provided, "That the General Assembly shall have no power to grant divorces," etc., but by general laws "shall confer such power on the courts of justice." The legislature, regarding the contract of marriage as higher and more sacred than ordinary contracts, provided the means by which parties interested in the preservation of the marital relation might be protected. It was never contemplated that the effort to maintain this relation by the enactment of proper laws should be construed as transferring to the judiciary a legislative discretion, which, when exercised and resulting in a judgment for a divorce, can never be questioned. We are not prepared to adjudge that the legislature of the State can delegate to the judiciary such unlimited power over the subject—the power to divorce for any cause, or to dissolve the relation without notice or citation to the parties in interest. The mind of the chancellor would revolt at such a judicial proceeding. The State is equally as much interested in preserving the marital relation as it is in maintaining the judgment of a court dissolving it. When parties come into a court of justice, the right to a divorce is purely a judicial question, and if the judgment dissolving the relation is void, it must be so treated. In the case of Meyar v. Meyar, 3 Metc. (Ky.) 398, the party divorced married shortly after the judgment was rendered. The wife, who had been proceeded against as a non-resident, afterward appeared in court, filed her answer, and moved for a retrial of the cause. This was prior to the act of 1869, and there was at that time no law denying the defendant in a divorce case the right to apply for a new trial. The same objection was made in that case now urged here, that the party had again married; the judgment was final and conclusive, and no court had the power to disturb it. This court in that case said: "Neither reason nor policy demands that judgments of divorce should be exempt from the general law applicable to new trials. The law does not favor divorces, and there is special reason for affording to courts having jurisdic Newcomb's Executors v. Newcomb. tion in such cases every possible means of preventing frauds and correcting any error or injustice committed in the judgment that may be complained of. No appeal lies from a judgment of divorce; and unless the wrong done can be righted by the court committing it, the party injured is without redress." The case of Maguire v. Maguire, 7 Dana, 181, was a proceeding under the statute of 1809, authorizing decrees of divorce for certain causes. The husband against whom the suit was insti A decree of tuted was at the time domiciled in the State of Alabama. He had never been domiciled in or a resident of this State. divorce was rendered, and the right of property as between the husband and the wife determined. The case being in this court for revision, the court (Chief Justice ROBERTSON delivering the opinion) said: "There can, we think, be no objection to the manner in which the chancellor divided the estate if he had authority to divorce the parties; but if he had no such authority, the decree concerning the estate was erroneous, and should be reversed." The court also in that case discussed the sovereign power of the State over the marital relation, and its dependency upon the sovereign will, but proceeded to say "that the chancellor had no jurisdiction to dissolve the marriage contract;" and further: "The chancellor's decree being extra-judicial, must be deemed void here as well as elsewhere. The decree as to the property was reversed, and the appeal as to the divorce dismissed for want of revisory power. These cases are cited to refute the idea that, the State being more interested in the marital relation than the parties to the contract creating it, a decree dissolving the relation is binding, although no jurisdiction is had over the person of the defendant to the action. If the decree in that case was void, in a collateral proceeding between the husband and wife, or those claiming under them, affecting their property rights, this court would necessarily have held that the judgment of divorce was void, and did not alter the status of the parties. In that case the want of jurisdiction appeared from the record. The evidence in this case shows that the appellee was never ascertained to be a lunatic by any judicial finding; that she was confined in the asylum by her husband; that she was there in obedience to his command, and subject alone to his control at the institution of the action for a divorce and when the judgment was . Newcomb's Executors v. Newcomb. rendered; that the domicile and residence of the husband was in the State of Kentucky from the time of their marriage until his death. Under such circumstances she was, as to the husband, neither an absent defendant nor non-resident in contemplation of the statute authorizing constructive service; and if she is to be regarded as having been a non-resident, having been in the custody of the husband, and in a place where she could have made no response if she had desired to do so, the service was void. She was warned, but could make no answer except by the permission of the party warning her. The husband may, no doubt, change the actual residence of the wife so as to authorize strangers to proceed against her as a nonresident, or the wife may voluntarily abandon the husband and take up a residence elsewhere that would authorize such a proceeding; but when the wife is absent in obedienee to the command of her husband, or is confined by him in an asylum or other place, with no power to return or respond to a summons or order of warning, she cannot be proceeded against by the husband as a nonresident or absent defendant. It matters not how pure the motives of the husband may be, if he can proceed in this mode against a lunatic wife, he can against one who is sane. If the wife had been sane, can there be any question as to the correctness of the judgment? Where is the rule other than that prescribed by the Code, by which the chancellor in determining the effect of the service of a summons in a civil action, is to be controlled by the mental condition of the party affected by it? If, under his control and subject to his will, the wife is placed by the husband where she is powerless to respond if she had the mental power to assert her rights, the chancellor will not stop to inquire whether she was a lunatic or of sound mind, but must pronounce all such proceedings null and void. In the investigation of this case we have not lost sight of the public interest in the questions involved, or its importance to the parties directly interested. The children appellants are made legitimate by the statute, and the right of property is affected only to the extent that they may be compelled to contribute to satisfy the judgment in favor of appellee; nor could this court have interfered with the judgment below, if there had been no statute on the subject. The law must be administered as we find it. [Omitting minor points.] Newcomb's Executors v. Newcomb. The appellee is entitled to dower and distribution in her deceased husband's estate, and the judgment below must be affirmed. To the petition of counsel for appellants for a rehearing, Judge PRYOR delivered the following response of the court: This court, in the opinion heretofore rendered, recognized the general doctrine that a decree of any court of competent jurisdiction, on the question at issue, can only be reviewed by an appeal, or by proper proceedings to obtain a new trial, or to vacate the judgment, but at the same time held that exceptions were to be found to this general rule; in other words, that the plaintiff in the action is not entitled to a judgment until the defendant is cited to appear, and that a constructive service, obtained by the husband against the wife, when at the time of the service she is in his custody or under his control, is no service, and all proceedings under it are null and void. In such a state of case the residence and domicile of the husband must be regarded as the residence and domicile of the wife. It is not a question of public policy that this court is attempting to assert, but when the wife is denied the right of appeal, or the right to file a petition to vacate the judgment, every principle of natural justice requires that she shall be heard before she is condemned, and the reason of the rule denying her the right to attack the judgment in a collateral proceeding ceases to exist. Counsel for the appellant fail to perceive any similarity in the cases of Dean v. Neison and Lasere v. Rochereau, cited in the opinion, and say that no valid judgment could have been rendered in those cases, because it was unlawful for the defendants to appear; but as to Mrs. Newcomb, she had the right to appear and defend, and was in no just sense deprived of that privilege by the husband. In the cases referred to the plaintiffs in the several actions had no agency in placing the defendants in a condition where they could not respond, but the government had intervened, and forbidden the parties from coming within the Federal lines. In this case, the plaintiff, himself asking the judgment, is the party having the control of the defendant, and his commands she was compelled to obey, and could have made no response if she had possessed the mental capacity, without his consent. It is immaterial for what purpose the husband places his wife within the walls of an asylum, if she is there by his direction and subject to his control, he cannot proVOL. XXVI- 31 Commonwealth v. Hawes. ceed against her as a non-resident. It will not do to adjudge, that if insane he may have constructive process, but if sane it must be treated as void. The condition of Mrs. Newcomb's mind was such, that if she had been brought to Kentucky, and served with an actual summons, she could have made no response. Still the court will not stop to measure the mental capacity of the defendant in determining the validity of such a service. It is either a void or valid service, and for the reasons already indicated, it must be adjudged void. These questions were not raised in the original case, nor were the facts presented upon which the chancellor could have disposed of the question. The party defendant was not in court, but it is insisted by the counsel for the appellant that she was in court because the record says she was in court. This response might well be made if the appellee had her remedy by an appeal, or could by proper proceedings vacate the judgment. In such cases the rule that a judgment, by a court having jurisdiction of the subject-matter and the parties, cannot be attacked in a collateral proceeding, is made to apply, but where these remedies are all withheld from the defendant in an action for a divorce by reason of the statute, it would be inconsistent with public interest and morals, as well as a palpable violation of the natural, legal, and constitutional rights of the citizen, to say, that a judicial tribunal could, by its judgment, sever the marital relation withont notice to the parties in interst. The petition is therefore overruled. An implication in a treaty that extradited criminals are not to be tried for crimes other than those named in the treaty and in the warrant of extradition, is of as much force as the clear and unambiguous expression of such a provision would be. A prisoner, extradited from Canada, under article 10 of the Treaty of 1842, between the United States and Great Britain, having been tried for and acquit ted of the offense for which he was extradited, cannot be held for trial for an offense not within the treaty, without being first afforded an oppor tunity to return.* * See Adriance v. Lagrave (59 N. Y. 110), 17 Am. Rep. 317. |