concurring: In divorce proceedings, the marriage relation is the thing in litigation, the res, and each State has exclusive jurisdiction over the marriage status of its citizens.
If the parties are not residents of the State where the decree is entered, the court has no jurisdiction of the subject-matter, and the decree is'void notwithstanding the due service of process, and the question of jurisdiction may be inquired into in the courts of the State of the residence without doing violence to the full faith and credit clause of the Constitution. The question is discussed and the authorities collected in 9 R. C. L., 508, et seq., and in the note to Haddock v. Haddock (201 U. S., 562), 5 Anno. Cases, 1.
A doubt is expressed in S. v. Schlacter, 61 N. C., 520, as to whether this inquiry may be made in a criminal prosecution, but the authorities in England and in this country hold that it can be done. Rex v. Lolley, R. & R. C. C., 237; Rex v. Brinkley, 14 Ont. L. R., 434; Hood v. State, 56 Ind., 263; People v. Dawell, 25 Mich., 247; People v. Baker, 76 N. Y., 78; VanFossen v. State, 37 Ohio St., 317; S. v. Westmoreland, 76 S. C., 145.
If the record in the divorce imoceeding shows that the question of residence was passed on, or it is recited in the decree, the presumption is in favor of jurisdiction, and the burden is on the party attacking the decree to prove that the plaintiff was not a resident when it was granted; but if there is no recital and no finding and the record shows that the question of residence was not considered, the burden is on him who relies on the decree to prove residence, as otherwise it would not appear that the court had jurisdiction.
The record relied on by the defendant in this prosecution not only does not show that the question of residence was passed on, but the clear inference is that it was not considered. It is stated in the petition, which is not verified, that the petitioner has been a resident of Georgia for twelve months and the question of residence is not again referred to in the proceeding. No issue as to residence was submitted to the jury, nor is there any recital or adjudication in the decree, and on the contrary the language of the verdict and of the decree show that the cause for divorce was alone considered. I therefore think, in this condition of- the record, and when it was admitted that the defendant married the first time in this State and had been a resident here, that there was no error in imposing the burden on the defendant to prove residence in Georgia.
*761Again, while there is a conflict of authority (see note 5, Anno. Cases, 28 and 29), North Carolina is in line with the courts holding that a decree for divorce rendered in another State on substituted process is invalid. Irby v. Wilson, 21 N. C., 568; Harris v. Harris, 115 N. C., 588.
The Court.says in the last case: “The decree of divorce obtained by the wife, resident in Colorado, against the husband, domiciled in this State, without personal service upon him is a nullity in this State. Irby v. Wilson, 21 N. C., 568.”
The decision in Bidwell v. Bidwell, 139 N. C., 402, is not in conflict with the earlier decisions. In the Bidwell case the wife brought her action for support and maintenance, and the defendant, her husband, set up as a defense a decree of absolute divorce granted by the courts of North Dakota, and also a decree of the courts of Massachusetts, in an action instituted by the wife against the husband for divorce, in which the North Dakota decree was adjudged to be-valid. The wife appeared and answered in the North Dakota action and was awarded $10,000 for the care and custody of her minor child, and in the Massachusetts action both parties appeared, so that the question of the effect of a decree rendered upon substituted process could not be raised as to either action as the husband and wife appeared in both.
The expression in the opinion relied on by the defendant-is based on two decisions of the Supreme Court of the United States, which were either misunderstood or they have been since modified by the case of Haddock v. Haddock.