The command of the Constitution of the United States, that "full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state," seems to call for a reversal of the order appealed from.
The order affirms the decision of the surrogate of Kings county, declaring, among other things, that a certain decree of divorce made by a court of general jurisdiction in the state of North Dakota was and is a nullity, the reason assigned being that the court did not acquire jurisdiction of the defendant therein, James L. Semon. The provision of the Constitution quoted, said this court many years ago, means that the decree of a sister state, "must have the same faith and credit as it has in the state where it was rendered." (Kinnier v. Kinnier, 45 N.Y. 535. ) It must, however, be a judgment, and the parties and subject-matter must have been within the jurisdiction of the court; and it is open to attack collaterally as to the question of jurisdiction, as in Kerr v. Kerr (41 N.Y. 272) where a decree of the court in the state of Ohio recited an appearance of the defendant by a firm of attorneys, and the person for whom such appearance was noted was permitted to prove that she had no knowledge whatever of the proceeding, and that she neither appeared nor authorized any one to appear for her.
Semon, the defendant in the action that culminated in the judgment which is declared a nullity by the court below, was not a resident of the state of North Dakota, but was a resident of New York, and unless he submitted himself to the jurisdiction of the court of North Dakota by an appearance in the action the judgment of divorce was a nullity. (O'Dea v. O'Dea, 101 N.Y. 23. )
The record presents an amended decree in that action which was in existence at the time these proceedings were instituted, *Page 73 and upon the subject of the defendant's appearance the recital therein is as follows: "The defendant having appeared herein and answered and submitted himself to the jurisdiction of the court." When this amended decree was put in evidence, therefore, it was established presumptively that the court making the decree had acquired jurisdiction over the defendant by his appearance therein. It was a presumption rebutable by proper evidence, if such existed, but in the absence of evidence tending to disprove the assertion of the decree that the defendant had appeared and answered and submitted himself to the jurisdiction of the court, it was conclusive. It was not attacked by evidence; indeed, there was no evidence in the Surrogate's Court upon the subject except the papers which were submitted to the Dakota court on the motion made by the defendant Semon to amend the decree in respect to the recital referred to. If the judgment, when first entered, had been in the form in which it now is, as respects the recital, no one would have thought of challenging it, certainly not without direct evidence in possession of the attacking party tending to show that there was no appearance. But the motion to amend the judgment, made by the defendant in that action after the death of the intestate, Kimball, seems to have aroused suspicion that there was some collusion between Semon and his former wife and that his action was taken for her benefit, and not for his own, as he swears. There is, however, no proof that this suspicion is well founded, but if it were otherwise it could not affect the question before us, which is whether the Dakota court had before it competent evidence upon which to base the determination that it had jurisdiction of the defendant Semon at the time of the entry of the judgment, and authority to amend the decree as of that date, so that it should show such jurisdiction. The evidence upon which the court based its decision allowing the amendment is before us, and it cannot be said that it does not furnish support for the determination of the court.
The defendant Semon, who undertook to answer in that action within the time mentioned in the summons and subsequently *Page 74 insisted upon such an amendment of the decree as should recite the fact of his submission to the jurisdiction of the court, does not challenge its jurisdiction. That is attempted by a third party, who produces no other evidence than that submitted by Semon to the court in his petition praying for such an amendment as should recite the jurisdictional facts which existed when the decree was first made. No prior case can be found where it has been held that in such a situation an adjudication of personal appearance can be disregarded, when collaterally attacked by a third party, and the court, of its own head, hold otherwise.
The judgment of divorce was filed January 29th, 1891, and it recited that the defendant Semon had "failed to answer, demur or to make any appearance whatever as by the summons and the law required in such case, but instead thereof made default." If the decree were still in this form the right of the courts in this state to treat it as a nullity would be unquestioned. But about December 1st, 1896, the defendant in that action presented a petition to the court in which he stated, among other things, that eight days after the summons was handed to him in the city of New York, to wit, the 23d of October, 1890, he had prepared his answer to the charges alleged against him in the complaint in the action; had verified it before a notary public in the city of New York; that it was prepared without the aid or advice of an attorney at law, in order to avoid the expense thereof, and that he had mailed it to the attorneys for the plaintiff. He asserts that it was his intention by this answer to inform the court of his position and defense, and to submit himself to the jurisdiction of the court, and that he then believed such course to be sufficient and that his answer would be filed. Annexed to his petition, and made to form a part thereof, was a copy of the paper referred to and also an affidavit from one of the plaintiff's attorneys, admitting that he had received a letter of which the annexed was a copy, but asserting that it had been lost or destroyed, his omission to file it being due to the fact that it was not in the form of a pleading according to the statutes of that state. *Page 75
Upon this petition and the papers annexed thereto an order was issued requiring the plaintiff in that action to show cause why the decree should not be amended nunc pro tunc as of January 26th, 1891, by striking therefrom the recitals to the effect that the defendant had failed to answer, demur or make any appearance whatever, and inserting therein the words, "the defendant having appeared herein and answered and submitted himself to the jurisdiction of the court."
The practice of North Dakota is similar to our own. Section 5341 of the Code provides that it shall not be necessary to entitle an affidavit in an action, but an affidavit without a title or with a defective title shall be as effectual for every purpose as if it were duly entitled, if it intelligently refer to the action or proceeding in which it was made; this provision is similar to section 728 of our Code of Civil Procedure.
The letter which Semon insists was his answer and so intended, was verified, not in the precise form provided by our statute for the verification of pleadings, but nevertheless it declared that it was "absolutely true in every particular." The District Court of North Dakota held that it constituted a proper appearance and answer, ordered it to be filed as such and amended the decreenunc pro tunc, so as to recite the appearance of the defendant. The authority to grant the amendment was conferred by section 4938 of the Code of North Dakota, which provides that "the court may before or after judgment, in furtherance of justice, on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party or a mistake in any other respect, or by inserting other allegations material to the case, or when the amendment does not change substantially the claim or defense by conforming the pleading or proceeding to the facts proved." It will be observed that this section is substantially in the language of section 723 of our Code of Civil Procedure.
In granting the order to amend the decree nunc pro tunc upon the motion of the defendant in the action, the court *Page 76 necessarily decided what the evidence before it asserted, viz., that the jurisdictional facts existed at the time the original decree was entered. The motion papers tend to show that such was the fact. It was not then disputed, nor has it since been questioned by evidence. The court having reached the conclusion that the recital in the original decree did not state the truth, but was a mistake, had the authority to amend the decree as of the date when it was first entered so that it should recite the appearance of the defendant. Authority to do so was expressly conferred upon it by the Dakota statute, which, as we have already observed, is substantially the same as our own.
Upon the facts stated would any one question the power of a court of original jurisdiction in this state to grant such an amendment? If granted, would the suggestion be entertained that the judgment could be attacked collaterally without other evidence than that upon which the court based its determination? Certainly not. And it should not be forgotten that it is our duty to give the same force and effect to this determination of our sister state that we would give to it were it made by our own courts.
It is suggested that the learned Surrogate's Court found as a fact that there was no appearance by the defendant Semon in that action and that we are concluded by his finding. The surrogate found the facts to which I have already referred, and because he saw fit to insert among his findings of fact his conclusion of law that the defendant did not appear, does not deny to us the right, nor relieve us from the duty, of determining what conclusion of law the facts really demanded.
I advise a reversal of the order.
All concur with HAIGHT, J., for affirmance (MARTIN, J., in result, on the ground that the question whether the defendant appeared in the action for divorce and submitted himself to the jurisdiction of the Dakota court was, under the evidence, a question of fact, and the finding of the surrogate cannot be reviewed by this court), except PARKER, Ch. J., who writes dissenting opinion.
Order affirmed. *Page 77