Jones v. Jones

Brady, J.

(dissenting):

This action was brought to obtain a divorce on the ground of infidelity. The defendant set up, among' other things, the recovery of a judgment, in May, 1883, by her in Texas, decreeing an absolute divorce, of which State she was then, and continued at the time of the answer interposed herein, to be a resident. The defendant moved, therefore, and it was ordered, that all the issues of fact in reference to the separate defense pleaded by her, alleging the judgment and decree of divorce already mentioned, be tried at' the Special Term without a jury, and that she have leave to renew the motion to settle the other issues as to adulteries alleged in the complaint for trial by jury, if she should be so advised. The object of this mode of procedure, which is unprecedented in an action of this character, was doubtless to avoid the trial of the other issues, which would become unnecessary if the divorce set up *423were valid, and being so, dissolved the relation of husband and wife-, between the parties.

It appears from the record that the plaintiff in this action was aa resident of this State at the time the proceeding in Texas was com^menced against him ; and that he was served with process in this: State, but appeared in the proceeding in Texas, insisting that the-court in which the action was brought by the defendant against him had no jurisdiction over him. This want of jurisdiction was repeated in all the stages of the proceeding in Texas, notwithstanding his answer and his contestation of the right of the defendant to recover against him.

The opinion of the learned justice in the court below contains a statement of the salient facts of th'e issue which was tried before him, and discusses each one of the points presented by them, and fully disposed of them on principle and authority, declaring, as the result, the judgment of divorce in Texas to have been without jurisdiction. We see no reason for differing from him in the views expressed, and adopt his opinion as conclusive.

I think the judgment should be affirmed, without costs.

Judgment reversed, new trial ordered, costs to abide event.