McFarland, J., dissenting.—I dissent. This is an action of divorce; and the present appeal is by defendant from an order of the superior court denying his motion to strike from the judgment rendered in favor of plaintiff all the provisions thereof relating to the custody of the minor children of the parties, and to support by way of alimony.
The facts of the case are these: The respondent and appellant were both born in, and are citizens of, the state of California; they were married, and their children were born in this state; and they have been continuously domiciled and resident here. The parties have two children, a girl named Lorraine, about five years old at the commencement of this action, and a boy named James Francis, about two years old at that time. This action was commenced December 20, 1893. About three weeks before that time appellant by force [120]and fraud took the child, James Francis, away from respondent; and on the following day took and carried away both óf said children, and kept them secreted from respondent, and has never since let her see them; and a short time before the commencement of this action he clandestinely left the state of California, and took said children with him; and about November 27, 1893, he clandestinely left the United States, taking said children with him, and since then has temporarily sojourned in the city of Paris, in France. In January, 1894, be made application to the proper authorities of France for permission to be domiciled there; and it is admitted by respondent that he obtained such permission in July, 1894; but it appears by the preponderance of evidence that he claimed his legal residence and domicile to be in the city of San Francisco, California; that “ his purpose in applying for permission to fix his domicile in France was to prevent his wife from serving summons on him in an action for divorce which she had commenced, and also to keep her from getting possession of their children”; that his sojourning in France was only temporary, for the purposes above mentioned; and that his intention was and is to return to California, where all his interests are, as soon as these purposes shall be subserved. Service of summons was duly made upon him by publication, and sending him a copy of complaint and summons to Paris, France, in accordance with the provisions of the statute of California on that subject; and default having been regularly entered against. him, judgment, after the introduction of evidence, was duly entered in favor of respondent. By said judgment: 1. A divorce was granted respondent upon the grounds of the adultery and extreme cruelty of appellant; 2. The custody of the said two children was given to respondent; and 3. It was further ordered that respondent shall have the right, at such time in the future as she shall be advised, to apply to the court for suitable allowance and sum to be paid to her by said defendant for her support duriug life,” etc., as she may [121]be entitled to under her complaint. The motion made by appellant, from the refusal of which this appeal is taken, was to strike out the said second and third parts of said judgment, upon the ground that the said service of summons did not give the court jurisdiction over the matters embraced in those parts of the judgment.
Waiving the objection of respondent, that'said motion was not a proper remedy under our system of practice, it is apparent that the motion could be granted only upon the theory that the judgment, so far as it embraces the parts sought to be stricken out, is void—absolutely void—void in the state where it was rendered. And a court should certainly not judicially declare such utter inefficiency of a sovereign state to deal with the property and personal rights of its own citizens, unless it be driven to such declaration by the force of inevitable judicial authority. I do not think that there is such authority.
The case chiefly relied on is Pennoyer v. Neff, 95 U. S. 714, which is declared by counsel for appellant, and by others, to have established what is called the modern doctrine in regard to the jurisdiction of state courts over persons not personally served with process within the state. A close examination of that case shows, however, that the main proposition decided by it—which may, perhaps, be styled “modern”—is that a judgment in personam rendered in a state court against a nonresident upon substituted service cannot be enforced even in the state where it was rendered, or satisfied even out of property situated within the state where it was rendered; while, before that, the weight of authority was that, although the courts of another state would not recognize such a judgment, it was valid in the state where it was rendered, and could be satisfied out of property of the defendant situated within that state. This is evidently the view of that case taken by Mr. Freeman; for in his work on Judgments, section 567, he says: “Until a comparatively recent date the opinion extensively pre[122]vailed that judgments in personam entered after constructive service of process upon a nonresident, while they were not enforceable beyond the limits of the state where entered, were nevertheless so far valid in that state. This opinion has been overthrown by the supreme court of the United States in the case of Pennoyer v. Neff, supra.” Many of the authorities which show that such was the former doctrine may be found in the cases cited in the briefs, and in the opinion of the court in Weaver v. Boggs, 38 Md. 255. In that case the court states the rule in this language: “It is well settled that a judgment obtained in a court of one state cannot be enforced in the courts and against a citizen of another, unless the court rendering the judgment has acquired jurisdiction over the defendant by actual service of process upon him, or by his voluntary appearance to the suit and submission to that jurisdiction. Such a judgment may be perfectly valid in the jurisdiction where rendered, and enforced there even against the property, assets, and credits of a nonresident defendant there situated, but it cannot be enforced or made the foundation of an action in another state. A law which substitutes constructive for actual service is binding upon persons domiciled within the state where such law prevails, and as respects property of others situated there, but can bind neither person nor property beyond its limits.” (The italics are ours.) And in Grover etc. Co. v. Radcliffe, 137 U. S. 287, the supreme court of the United States, speaking of the states of Pennsylvania and Maryland, says: “And the distinction between the validity of a judgment rendered in one state, under its local laws on the subject, and its validity in another state is recognized by the highest tribunals of each of these states.”
But whether or not the state of the law on the question determined by Pennoyer v. Neff, supra, was the same before as after that decision, it is apparent that Pennoyer v. Neff, supra, did not determine the question involved in the case at bar. There Neff was a bona fide actual [123]nonresident. The facts of that case were that one Mitchell recovered in a state court of Oregon a personal judgment for professional services against Neff, who was a nonresident of that state, and resided in the state of California; that the service of summons upon Neff was by publication; that on a common execution issued upon that judgment certain land of Neff, situated in Oregon, was sold to Pennoyer; and that Neff brought an action against Pennoyer to recover said land, and recovered upon the ground that the judgment was not valid even in Oregon, and could not be satisfied out of land in Oregon, because substituted service would not support a judgment against a nonresident. There was no claim that the defendant had either residence or domicile in Oregon. In that case the fact was that Neff was m every sense a nonresident of Oregon, having his domicile and citizenship elsewhere; and the scope of a judicial decision is limited by the facts upon which it is based. In the second place, however difficult it may be to accurately define “residence” in its legal signification, and to distinguish it from “ domicile,” it is apparent that in the opinion in Pennoyer v. Neff, supra, the word “nonresident” is used as expressing the fact of an actual bona fide residence outside of the state where the judgment is rendered, such a residence as usually accompanies domicile—and not a mere temporary flight from one’s home in fraudem legis. Indeed, throughout the opinion the words “ residence” and “ domicile” are used indiscriminately and as synonymous. There was no necessity in that case to notice any distinction—if there be any—between the words, for Neff was a nonresident in every sense, either of residence or domicile, and the opinion is to be taken as written in view of that fact. For instance, it is said in the opinion that “ the plaintiff here was a nonresident of the state”; again, it is said that there cannot be an encroachment upon the independence of the state “in which the persons are domiciledagain, it is said that “the state, through its tribunals, may compel persons domiciled within its limits [124]to execute,” etc; again, it is said that property within & state, owned by “nonresidents,” may be subjected to certain processes, and that this “ in no respect infringes upon the sovereignty of the state where the owners are domiciled”; again, “process from tribunals of one state cannot run into another state, and summon parties there domiciled to leave its territory and respond to proceedings against them”; and finally, the court, in the last sentence of its opinion, says: “The question here respects only the validity of a money judgment rendered in one state, in an action upon a simple contract-against ■the resident of another without service of process upon him or Jais appearance therein.” And as, in the case at bar, the appellant was neither a nonresident of the state where the judgment was rendered, nor domiciled elsewhere, as was the plaintiff in Pennoyer v. Neff, supra, the latter case cannot be relied on as imperative authority for holding that the power of the state of California to control and preserve, through her tribunals, the personal and property rights of her own citizens, can be evaded by flight perpetrated for. that express purpose. As to the reasons sometimes given for an opposite rule, how can the dangers of judgments upon substituted service against persons who might not have seen the publication, be marshaled in aid of a party who, knowing of the coming suit, flees to avoid it? In Cooper v. Reynolds, 10 Walk 308, no question was raised as to the validity of the asserted nonresidence of Reynolds.
That the laws of a sovereign are binding upon all its citizens domiciled within its borders, whether temporarily absent or not, seems to be the clear result of the authorities. “The laws of a sovereign rightfully extend over persons who are domiciled within his territory.” (Story on Conflict of Laws, sec. 539.) Freeman, although he also includes the extraterritorial effect of a judgment, which does not concern us here, sums up the result of the authorities as follows: “ The position, however, which seems to be best sustained, both by reason [125]and precedents, is that each state has the authority to provide the means by which its own citizens may be brought before the courts; that the courts of other states have no authority to disregard the means thus provided; and, finally, that every judgment or decree obtained in a state against some of its citizens, by virtue of a lawful though constructive service of process, should be obligatory upon such citizens in every other state whence it is taken. Nor is it destructive of the extraterritorial effect of a judgment based on constructive service that the defendant being a citizen of the state was temporarily absent therefrom. It is sufficient that he was at the time subject to the laws of the state and to the territorial authority .of the court.” There are numerous judicial decisions to the same point, one or two of which we will notice. In Henderson v. Staniford, 105 Mass. 504, 7 Am. Rep. 551, the court say: “The defendant was not in California when the action was commenced against him there; nor at any time during its pendency. No service of process or notice was ever made upon him personally. He did not appear by counsel, or otherwise, nor assent to the judgment which was rendered upon his default of appearance. But he had been for a long time before that a resident of California; the contract was made there; and that continued to be his legal domicile wdien judgment was rendered. He was, therefore, upon principle of international rights subject to the laws and to the jurisdiction of the courts of that state,” In Welch v. Sykes, 3 Gilm. 201, 64 Am. Dec. 689, the supreme court of Illinois declare that “ it is competent for each state to prescribe the mode of bringing parties before its courts”; and that, “although its regulations in this respect can have no extraterritorial operation, they are nevertheless binding on its own citizens.” In Beard v. Beard, 21 Ind. 321, the question is quite exhaustively considered and many authorities examined, and the general conclusion is that, “ notwithstanding a state may authorize its courts to render pe~sonal judgment upon constructive notice against its citizens, it cannot, we [126]
In nearly all the cases on the subject the words “ resident,” “ domicile,” “ citizen,” and “ inhabitant” are used indiscriminately to signify an actual permanent residence which has not been actually and in good faith changed; and “nonresident” is applied to one who is not such a citizen, inhabitant, or resident of, and has not such domicile within, the state in which the judgment is rendered. We are not concerned here with the question how far full faith and credit should be given to the judgment in another state, but only with the question: Is it void in this state? As the appellant was not a nonresident, the case does not fall within the decision in Pennoyer v. Neff, supra, and, under the general authorities, the judgment is valid in the state in which it was rendered. All that is necessary to be de[128]ter mined in this case is that a citizen and resident of California cannot escape the performance of his duties, and baffle our courts in their attempts to enforce the rights of others against him, by sudden flight and temporary absence expressly intended for that purpose. Every rule of law and every sentiment of justice is an obstruction to the success of such strategy. Nor will the affirmance of the order appealed from be violative of either the general international law or the American interstate law. A sovereign state might be justified in refusing to enforce within its own territory, and against one of its own citizens, a judgment rendered in another state upon substituted service; but neither its interest nor its dignity would be touched by the enforcement of such a judgment by another state within its territory and against its pion citizens.
We cannot see merit in the point made by appellant that the substituted service was not sufficiently in compliance with the statute of this state which provides for it. The main contention is that the statement in the affidavit for publication that the defendant “ has departed from the state of California, and is now absent therefrom,” is of a mere conclusion, and not of a fact; but it would be difficult to suggest any other language that would express the facts of departure and absence with more clearness and certainty. The fact that a few of those words are used in the statute does not prevent their use in an affidavit if they are apt words to express the meaning of the affiant.
Respondent contends, also, that the order appealed from should be affirmed upon the further grounds that those parts of the judgment which relate to the custody of the children and alimony are mere incidents to the divorce, 'and that the jurisdiction to grant the divorce, which is admitted on all hands, carries with it the jurisdiction of the incidents; and, furthermore, that the relation of children to parents is a status like that of marriage, and that, therefore, an action to determine the custody of children, like a suit for divorce, is in the
[129]nature of a proceeding in rem. But it is unnecessary to discuss these points at length, because the views heretofore expressed would be determinative of the case in favor of respondent upon another ground. We may say, however, that so far as the custody of the children is concerned, this second contention of respondent seems to be correct. The judgment merely determines generally the custody of the children, and whether it could be enforced in another state or country is not here involved. It is settled law that a decree of divorce operates upon the relation, the status, and that, therefore, such a decree, founded upon constructive service by publication is valid, even as against one resident, and domiciled beyond the state. (See cases cited in notes to Flint River Steamboat Co. v. Foster, supra.) “A judgment for divorce is quasi, at least, in rem. Judgments in rem, it is well known, are not, as the name implies, confined to adjudications against things. They are rendered, in many instances, where the prior proceedings are entirely in personam, as in cases establishing or dissolving marriages.” (Freeman on Judgments, sec. 606.) In Pennoyer v. Neff, supra, it is said: “The jurisdiction which every state possesses to determine the civil status and capacities of all its inhabitants, involves authority to prescribe the conditions on which proceedings affecting them may be commenced and carried on within its territory.” Now, is not the relation between parent and child a “ civil status?” It is so assumed to be in Cooley’s Constitutional Limitations, sixth edition, page 499. In Bishop on Marriage, Divorce, and Separation, section 1189, it is said that “the relation of parent and child is a status .... like marriage.” And in the Estate of Newman, 75 Cal. 213, 7 Am. St. Rep. 146, the court said: “ So far as the action of Maldonado v. Maldonado affected the status of the parties and the custody of the child, it was a proceeding in rem, and service by publication in such case is good.” (See, also, Wakefield v. Ives, 35 Iowa, 238, and People v. Allen, 40 Hun, 611.) In Brenot v. Brenot, 102 [130]Cal. 294, it was held that, in an action for divorce, the custody of the children was an incident in the main relief sought—the divorce. (See, also, Younger v. Younger, 106 Cal. 377.) Upon these authorities, and upon principle, we think that, in an action brought for both divorce and the custody of the children, the latter is an incident of the former, and that the court has jurisdiction over the status founded on the relation of parent and child as well as of the status founded on the relation of husband and wife, even as against a bona fide nonresident domiciled elsewhere. And, in such a case, the actual physical presence of the children is no more necessary for jurisdiction over the status in the one instance, than is the presence of the husband necessary in the other. It is not necessary to determine whether or not jurisdiction to, decree alimony would follow as an incident to the divorce. It is doubtful if the judgment in this case really awards any alimony; but, if it does, its validity in that respect has sufficient basis in the proposition first discussed in this opinion.
With respect to the statement of facts hereinbefore made, it is proper to observe that where, as in this case, the appeal is from a mere order of the court below granting or denying a motion, and where findings are not necessary, this court will assume the existence of such facts necessary to support the ruling of the lower court as fairly appear from the evidence. Here the preponderance of the evidence is largely in support of the facts above stated. Indeed, the fact that appellant fled the state, and clandestinely carried away the children to avoid the action, is too apparent to be even debatable.
The order appealed from should be affirmed.
Beatty, C. J., and Van Fleet, J., concurred in the dissenting opinion.
Rehearing denied.