[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 65 Edward C. Kimball died in the city of Brooklyn on the 9th day of November, 1896, intestate, leaving him surviving Harriet A. Kimball, his mother, and Harriet I. Kimball, his sister, as his only next of kin and heirs at law. On the 10th day of November letters of administration were issued upon his estate by the surrogate of Kings county to Harriet A. Kimball and John S. James. On the 17th day of December thereafter, one Maude E. Kimball, claiming to be the widow of the deceased, filed a petition with the surrogate praying for the revocation of the letters of administration issued to Harriet A. Kimball and John S. James and for the appointment of herself in their place and stead. It appears that she was married on the 12th day of May, 1885, to one James L. Semon, in the city of New York, and that they resided together as husband and wife for a number of years, during which time two children were born to them; that in the month of June, 1890, she left her husband in the city of New York and removed to the state of North Dakota where she took up her residence, and after remaining in that state for a period of ninety days, instituted an action in the District Court of the fifth judicial district of that state for a divorce. She procured the summons to be served upon Semon in the city of New York where he still continued and ever since has resided. *Page 67 The summons required him to appear and answer the complaint within thirty days after the service, and in default of so doing, the plaintiff would apply to the court for the relief demanded in the complaint. On the 31st day of December thereafter, the plaintiff's attorney made an affidavit to the effect that more than thirty days had elapsed since the service of the summons was made upon the defendant, and that no answer or demurrer to the complaint in the action had been received by him, and that the said defendant had not made, served or filed any appearance in any manner in the action. Upon this affidavit an application was made to the court for the appointment of a referee to take proof as to the facts alleged in the complaint, and upon the report subsequently made by the referee, judgment was entered annulling the marriage and granting her a divorce. About the 5th day of February, 1891, she returned to the city of New York, and on the 29th day of June, 1895, was married to Edward C. Kimball in the city of Brooklyn. They thereafter lived together until about the 3d day of January, 1896, when Kimball left her and went to Easton, Pa., to engage in business. He died, as we have seen, the following November. Kimball knew at the time of his marriage that the petitioner was a divorced woman, but he had no knowledge of the means by which such divorce had been obtained and did not know that it was invalid. After his death and in December, 1896, Semon, the former husband of the petitioner, applied to the Dakota court which granted the decree of divorce to have a letter which he sent to the plaintiff's attorney, filed in the court as his answer in the divorce suit nunc pro tunc as of the date of its receipt by the plaintiff's attorney, and to have the decree of divorce, made on the 26th day of January, 1891, amended nuncpro tunc as of that date, by striking out the recital to the effect that the "defendant had failed to answer, demur or make appearance in the action," and by inserting in place thereof the words, "The defendant having appeared herein and answered and submitted himself to the jurisdiction of the court." Notice of this application was given to the plaintiff's *Page 68 attorney who appeared in the divorce suit, but no notice was given to the personal representatives of the deceased. No one appearing to oppose, the motion was granted by the court and the judgment was amended nunc pro tunc as prayed for.
It is now contended that the judgment of the Dakota court, awarding to the petitioner a divorce from her former husband, is valid and binding upon the parties, and that by reason thereof she had a lawful right to marry Kimball, and that, as his widow, she is entitled to letters of administration upon his estate and to share in the proceeds thereof.
The provision of the Constitution of the United States, which declares that full faith and credit shall be given in each state to the judicial proceedings of every other state; and the acts of Congress, which declare that the judgments of the state courts shall have the same faith and credit in other states as they have in the state where they were rendered, have repeatedly been held not to prevent an inquiry into the jurisdiction of the court in which the original judgment was rendered, nor into the rights of the state to exercise authority over the parties or subject-matter, nor an inquiry whether the judgment is founded on or impeachable for fraud; and that such a judgment may be inquired into, although the record states facts which would give the court jurisdiction. It is equally well settled that the judgment of a court of a sister state has no binding effect in this state, unless the court had jurisdiction of the subject-matter and of the person of the parties, and that want of jurisdiction may always be interposed against a judgment when it is sought to be enforced, or when any benefit is claimed for or under it. (Borden v. Fitch, 15 Johns. 121; Andrews v.Montgomery, 19 Johns. 162; Shumway v. Stillman, 4 Cow. 292;Kerr v. Kerr, 41 N.Y. 272.)
It will not be claimed that the judgment as originally entered was valid. It recited the service of the summons outside of the state; that the defendant had not answered, demurred, or in any manner appeared in the action. The defendant was a *Page 69 resident of this state, and the courts of Dakota had never acquired jurisdiction of his person so as to have the power to order a judgment in personam against him. It is only upon the theory that he served an answer in that case, thereby submitting himself to the jurisdiction of that court, that it can be claimed that the courts of that state acquired jurisdiction to grant a final judgment against him. As we have seen, the plaintiff's attorney in that action made an affidavit upon which the judgment was entered, in which he stated that the defendant had not appeared, and had not answered or demurred. It is now claimed, however, that he had forwarded to the plaintiff's attorney a letter, of which the following is a copy:
"NEW YORK, Oct. 23, '90.
"Mr. HERMAN WINTERER:
"DEAR SIR. — In reply to the contents of paper served on me Oct. 15, 1890, by your representative, relative to my wife and children, I would say that my (wife) has sworn to matters untrue. For instance, this matter of desertion, this is surprising to me, as my wife personally ordered me from the house and stated that she never wished to see me again; this was the fore part of September, 1888. I did as I was ordered, having no alternative, as I was living under her mother's roof. Now is it at all likely that a domesticated man (as my wife will tell you I was) would give up a good home, without good reasons for so doing? It was only a short time after I left the house that they moved and took up another dwelling place, I never receiving any notification where I could see my children. I have meditated over this matter more than once, and have often wondered why it was done. It is now over a year ago since I saw my children last.
"In relation to my not providing for her, I would say that I have always given what I had, and very often more than I could afford. I am now carrying on the painting business, which was left to me by my father, who is now dead. When I came into possession of the business it was very much in debt. I have been trying ever since I took it to wipe out this burden, but as yet have not fully accomplished my aim and *Page 70 desire. There were times when I was not doing very much in my business, and consequently could not provide as promptly as I would like to. My wife swearing that I did not provide for her the common necessaries of life simply tells an untruth. As to my drinking habits, I will admit that I have indulged a little too much at times, but now have got bravely over that, having not tasted it in over a year. As the father of my children, I was glad to hear of their existence, and hope in the near future of having the pleasure of seeing my own flesh and blood.
"Very respectfully, "JAS. L. SEMON, 803 9 Ave. N.Y.C.
"CITY AND COUNTY OF NEW YORK, ss.:
"Jas. L. Semon, being duly sworn, deposes and says that he is the writer of the foregoing letter, that he knows the contents thereof, and that it is absolutely true in every particular.
"JAS. L. SEMON. [L.S.]
"Subscribed and sworn to before me this 23d day of October, 1890.
[L.S.] "JAS. T. CLARK, Notary Public for Co. of N.Y."
Is this letter an appearance in the case or an answer to the plaintiff's complaint? Under the Compiled Laws of the state of North Dakota it is provided by section 4914 that "the answer of the defendant must contain, first, a general or specific denial of each material allegation of the complaint controverted by the defendant or of any knowledge or information thereof sufficient to form a belief." Section 4921 provides that "every pleading in a court of record must be subscribed by the party or his attorney, and when any pleading is verified, every subsequent pleading, except a demurrer, must be verified also." By referring to the paper which is now claimed to be an answer, we find it dated at New York and addressed to the plaintiff's counsel individually. It is in form an ordinary letter commencing "Dear Sir" and closing with the words "Very respectfully" and is signed "Jas. L. Semon." It is not entitled in any action in any court *Page 71 of any state. It does not purport to be a pleading in any action. It contains no specific denials of the allegations of the complaint which for a moment could be held to frame an issue requiring a trial. It is verified, but not in the form required by the statute. Semon nowhere swears that he is the defendant in the action or the person that was required to answer the complaint. This is the evidence upon which the surrogate was required to determine the validity of the judgment. Upon this evidence he found, as a fact, that the defendant did not appear in the action in person or by attorney. This finding has been affirmed by the unanimous judgment of the Appellate Division, and under the provisions of our Constitution "No unanimous decision of the Appellate Division of the Supreme Court that there is evidence supporting or tending to sustain a finding of fact * * * shall be reviewed by the Court of Appeals." (Const. art. VI, § 9.) It is claimed, however, that this finding should be regarded as a conclusion of law and not as a determination of a question of fact. If we should so treat it we should not hesitate in sustaining the surrogate. The paper alluded to as an appearance or answer in the action could not be sustained in case it was assailed by a party. The plaintiff's attorney, anxious as he doubtless was to obtain jurisdiction of the defendant, never once thought of the letter as an answer, as is apparent from his affidavit of regularity upon which judgment was entered, and we cannot believe that it would have been received by the Dakota court and made the basis of amending the judgment had it not been by the consent of the parties. We then have a judgment of a court of a sister state entered against a resident of this state, in which there has been no personal service of process upon him in the jurisdiction of that state or appearance by him in the action by which the courts could acquire jurisdiction of his person. Such a judgment is void and of no force or effect in this state. (Kerr v. Kerr, 41 N.Y. 272; People v. Baker, 76 N.Y. 78;O'Dea v. O'Dea, 101 N.Y. 23; Jones v. Jones, 108 N.Y. 415;Cross v. Cross, 108 N.Y. 628; De Meli v. *Page 72 De Meli, 120 N.Y. 485, 495; Williams v. Williams, 130 N.Y. 193,199.)
The order appealed from should be affirmed, with costs.