GERMAN SAVINGS & LOAN SOCIETY, Plff. in Err., v.
DORA MAY DORMITZER, William L.
Tull, and Ernest B. Tull.
(See S. C. Reporter’s ed. 125-129.)
Constitutional law — full faith and credit — foreign decree of divorce — contradiction of jurisdictional facts.
A decree of divorce may lie impeached collat¬ erally in the courts of another state by proof that the court granting it had no jurisdiction because of the plaintiff's want of domicil, even when the record purports to show such jurisdiction and the appearance of the other party.
[No. 104.]
Argued December 16, 17, 1903. Decided January If , 190 If.
item of $10,000 from April 18, 1884, to Feb¬ ruary 25, 1885. This sum was alleged to have been received by the administrator, and improperly omitted from the inventory. The matter was referred to arbitrators. In order to avoid a family quarrel, if possible, the four sisters of the administrator agreed to be charged with $2,500 each, as on a par¬ tial distribution, and gave receipts on Feb¬ ruary 25, 1885. Thereupon the adminis¬ trator requested the arbitrators to find that he received and must account for the sum, and they did so. Very probably the matter of interest was overlooked, but the re"5ult of the transaction is that the administrator stands charged on the record as owing the estate $10,000 until the time of distribution to the sisters, and of course that he must pay interest at the legal rate. It is not a case of charging interest not earned against
an administrator having funds in his *hands as such, but it is a charge against him for money which he ought to have put into his account and held as an identified fund, but did not. The motives which induced his consent to charge himself are immaterial. Whatever they were, the effect of the record is the same.
Finally, the administrator objects to be¬ ing charged with interest on an item of $1,419.73, which he received in 1891. There is, perhaps, more doubt about this than con¬ cerning the more important matters, but we shall not disturb the decree. The assets had been ordered to be paid into court and then had been transferred, as above stated, to the solicitors of the parties as custodians. The administrator did not pay this sum over, but kept it in his own hands.
Decree affirmed.
192 U. S. U. S., Book 48.
T N ERROR to the Supreme Court of the -L State of Washington to review a judg¬ ment which reversed a judgment of the Su¬ perior Court of the County of Spokane in that State, dismissing a suit to establish a right to an undivided share in certain real property upon the theory that it was com¬ munity property of the parents of the plain¬ tiffs. Affirmed.
The facts are stated in the opinion.
Mr. William Scott Goodfellow argued the cause, and, with Messrs. E. C. Hughes and IF. IF. Hindman , filed a brief for plain¬ tiff in error:
The mere setting up of a judgment of a court of a sister state, and asking that ef¬ fect be given to it, introduce a Federal ques¬ tion.
Des Moines Nav. A R. Co. v. Iowa Home¬ stead Co. 123 U. S. 552, 31 L. ed. 202, 8 Sup. Ct. Rep. 217; Huntington v. Attrill, 146 U. S. 666, 36 L. ed. 1127^ 13 Sup. Ct. Rep. 224.
All that is necessary is that there shall be something in the ease showing that the Fed¬ eral question has been in fact brought to the attention of the court.
Missouri, K. & T. R. Co. v. Elliott, 184 U. S. 534, 46 L. ed. 677, 22 Sup. Ct. Rep. 446; F. G. Oxley Stave Co. v. Butler County, 166 U. S. 648, 41 L. ed. 1149, 17 Sup. Ct. Rep. 709'; Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 41 L. ed. 979, 17 Sup. Ct. Rep. 581; Mallett v. North Carolina, 181 U. S. 589, 45 L. ed; 1015, 21 Sup. Ct. Rep. 730; Tullock v. Mulvane, 184 U. S. 497, 46 L. ed. 657, 22 Sup. Ct. Rep. 372; Sweringen v. St.
Note. — On conflict of laics on the subject of divorce — see note to Re Benton’s Succession, 59 Ij. R. a. 135.
24
373
Supreme Court of the United States.
The supreme court of Washington did not intend to render judgment upon the inde¬ pendent ground of estoppel.
Maguire v. Tyler, 8 Wall. 650, 19 L. ed. 320; Klinger v. Missouri, 13 Wall. 257, 20 L. ed. 635; Johnson v. Risk, 137 U. S. 301, 34 L. ed. 684, 11 Sup. Ct. Rep. 111.
When rights under the Constitution are claimed to have been denied, this court will not consider itself bound by the construction placed upon a contract or state statute by the highest court of a state.
Dower v. Richards, 151 U. S. 658, 38 L. ed. 305, 14 Sup. Ct. Rep. 452; Jefferson Branch Bank v. Skelly, 1 Black, 436, 17 L. ed. 173; Laing v. Rigney, 160 U. S. 531, 40 L. ed. 525, 16 Sup. Ct. Rep. 366; Jacobs v. Marks, 182 U. S. 583, 45 L. ed. 1241, 21 Sup. Ct. Rep. 865.
There was no issue of fact whatsoever, tendered either to the superior court or to the supreme court in impeachment of the Kansas divorce, excepting, only, the exist¬ ence of the record ; if, therefore, the supreme- court decision be treated as a finding of fact as to domicil, residence, fraud, service of summons, or authority of the attorney to appear, such finding was without the issue.
Morenhout v. Barron , 42 Cal. 591.
A final judgment of a court having a con¬ ceded jurisdiction both of the parties and of the subject-matter may be set at naught collaterally because not responsive to the matters controverted.
Reynolds v. Stockton, 140 U. S. 254, 35 L. ed. 464, 11 Sup. Ct. Rep. 773.
That the pleadings raised no issue as to the judgment of divorce except its mere ex¬ istence is clear.
Hill v. Mendenhall, 21 Wall. 453, 22 L. ed. 616; Ritchie v. Carpenter, 2 Wash. 512, 28 Pac. 380.
Sister state judgments cannot be collat¬ erally attacked on the ground of fraud.
Hanley v. Donoghue, 116 U. S. 1, 29 L. ed. 535, 6 Sup. Ct. Rep. 242 ; Simmons v. Saul, 138 U. S. 459, 34 L. ed. 1063, 11 Sup. Ct. Rep. 369; Robb v. Fos, 155 U. S. 13, 39 L. ed. 52, 15 Sup. Ct. Rep. 4.
As between Tull and his wife, this was not a foreign judgment, but a domestic judg¬ ment. The mere fact that she was without the territorial limits of the state at the time of service of summons, even if she did not afterwards appear by attorney, makes no difference.
Ouseley v. Lehigh Valley Trust <& S. D. Vo. 84 Fed. 602.
Messrs. Robert A. Howard and Lucius 374
Oct. Term,
G. Nash argued the cause and filed a brief for defendants in error:
The judgment rests on non-Federal grounds sufficient to sustain it.
Connecticut ex rel. New York & N. E. R. Co. v. Woodruff, 153 U. S. 689, 38 L. ed. 869, 14 Sup. Ct. Rep. 97 6 ; Gillis v. Stinch- ficld, 159 U. S. 658, 40 L. ed. 295, 16 Sup. Ct. Rep. 131 ; Missouri P. R. Co. v. Fitz¬ gerald, 160 Li. S. 556, 40 L. ed. 536, 16 Sup. Ct. Rep. 389; Harrison v. Marton, 171 U. S. 38, 43 L. ed. 63, 18 Sup. Ct. Rep. 742; Hale v. Lewis, 181 U. S. 473, 45 L. ed. 959, 21 Sup. Ct. Rep. 677 ; Rutland R. Co. v. Cen¬ tral Vermont R. Co. 159 U. S. 630, 40 L. ed. 284, 16 Sup. Ct. Rep. 113.
If the Federal question raised by the plaintiff in error is considered, the decision of the Washington court was so clearly right that its judgment and decree should be af¬ firmed.
Thompson v. Whitman, 18 'Wall. 457, 21 L. ed. 897; Andrews v. Andrews, 188 U. S. 14, 47 L. ed. 366, 23 Sup. Ct. Rep. 237; Bell v. Bell, 181 U. S. 175, 45 L. ed. 804, 21 Sup. Ct. Rep. 551 ; Streitwolf v. Streitwolf , 181 U. S. 179, 45 L. ed. 807, 21 Sup. Ct. Rep. 553.
Messrs. William M. Murray and Frederick IF. Dewart filed a brief for Ernest B. Tull ;
There are certain Federal questions which need not be raised in the lower court, but this is not one of them.
Columbia Water Power Co. v. Columbia Electric Street R. Light & P. Co. 172 U. S. 475, 43 L. ed. 521, 19 Sup. Ct. Rep. 247.
Jurisdiction cannot arise in such case from inference, but only from averments so distinct and positive as to place it beyond question that the party bringing the case up intended to assert a. Federal right.
F. O. Oxley Stave Co. v. Butler County, 166 U. S. 648, 41 L. ed. 1149, 17 Sup. Ct. Rep. 709; Kipley v. Illinois, 170 U. S. 182, 42 L. ed. 998, 18 Sup. Ct. Rep. 550; Chapin v. Eye, 179 U. S. 127, 45 L. ed. 119, 21 Sup. Ct. Rep. 71; Michigan Sugar Co. v. Dix, 185 U. S. 112, 46 L. ed. 829, 22 Sup. Ct. Rep. 581;
Jacobi v. Alabama, 187 U. S. 133, 47 L. ed. 106, 23 Sup. Ct. Rep. 48.
A point that was never raised cannot be said to have been decided adversely to a party who never set it up or in any way al¬ luded to it.
Dewey v. Des Moines, 173 U. S. 193, 43 L. ed. 665, 19 Sup. Ct. Rep. 379.
Whether the Federal claim was properly and sufficiently set up is a question for this court, and any statement by the court be¬ low, or by any of its members, does not bind this court.
192 U. S.
1903.
German Sayings & Loan Society ▼. Doumitzbr.
Erie R. Co. v. Purdy, 185 U. S. 148, 46 L. eel. 847, 22 Sup. Ct, Rep. 605.
.And it has been held that a certificate by the chief justice of the supreme court of the state is insufficient to give this court juris¬ diction, but that such a certificate may be used to make certain and specific what is too general and indefinite in the record.
Yazoo tf- M. Valley R. Co. v. Adams, 180 U. S. 41, 45 L. ed. 415, 21 Sup. Ct. Rep. 256.
Statements from the briefs filed in the supreme court of the state were not proper to show that the Federal question was raised in the lower court.
Zadig v. Baldwin, 166 U. S. 485, 41 L. ed. 1087, 17 Sup. Ct. Rep. 639.
But, assuming, without intimating an opinion to that effect, that' the raising of a Federal question in the brief might be suffi¬ cient, it is well settled in this court that it must be made to appear that some pro¬ vision of the Federal, as distinguished from the state, Constitution, was relied upon, and that such provision must be set forth.
Yew York C. d H. R. R. Co. v. New York, 186 U. S. 269, 46 L. ed. 1158, 22 Sup. Ct. Rep. 916.
Even if the state court has decided against the plaintiff in error on a Federal question, this court will not look into the Federal question if the state court has decided against the plaintiff in error on an inde¬ pendent ground suflicient to support the judgment, not involving a Federal question.
Bacon v. Texas, 163 U. S. 227, 41 L. ed. 140, 16 Sup. Ct. Rep. 1023; Murdock v. Memphis, 20 Wall. 590, 22 L. ed. 429; Cook County v. Calumet & C. Canal d Dock Co. 138 U. S. 635, 34 L. ed. 1110, 11 Sup. Ct. Rep. 435; Harrison v. Morton, 171 U. S. 38, 43 L. ed. 63, 18 Sup. Ct. Rep. 742; McQuade v. Trenton, 172 U. S. 636, 43 L. ed. 581, 19 Sup. Ct. Rep. 292; Secberger v. McCormick, 175 U. S. 274, 44 L. ed. 161, 20 Sup. Ct. Rep.
128.
Estoppel is a good and sufficient ground in such cases on which to support a judgment.
Moran v. Horsley, 178 U. S. 205, 44 L. ed. 1038, 20 Sup. Ct. Rep. 856; Speed v. Mc¬ Carthy, 181 U. S. 269, 45 L. ed. 855, 21 Sup. Ct. Rep. 613; Adams County v. Burlington d M. R. Co. 112 U. S. 123, 28 L. ed. 678, 5 Sup. Ct. Rep. 77;
Pierce v. Somerset R. Co. 171 U. S. 641, 43 L. cd. 316, 19 Sup. Ct. Rep. 64; Ilale v. Lewis, 181 U. S. 473, 45 L. ed. 959, 21 Sup. Ct. Rep. 677 ; Lowry v. Silver City Cold, d S. Min. Co. 179 U. S. 196, 45 L. ed. 151, 21 Sup. Ct. Rep. 104.
The decree of divorce rendered by the Kansas court was entitled to the same ef¬ fect in Washington that it would have had in Kansas, and no more.
Hancock Nat. Bank v. Varnum, 176 U. S. 640, 44 L. ed. 619, 20 Sup. Ct. Rep. 506. 192 U. S.
126
There has never been any doubt as to what was the law in Kansas on that question.
Litoirich v. Litowich, 19 Kan. 455, 27 Am. Rep. 145; Thorn v. Salmonson, 37 Kan. 441, 15 Pac. 588; Larimer v. Knoyle, 43 Kan. 338, 23 Pac. 487; Chicago, R. I. d P. R. Co. v. Campbell, 58 Kan. 818, Appx. 51 Pac. 1100; Abercrombie v. Abercrombie, 64 Kan. 29, 67 Pac. 539.
It is true that the plaintiff in error con¬ tends — and it is really its only contention— that the state court erred in its findings of fact. But those findings are conclusive on this court, and cannot be re-examined for any purpose.
Egan v. Uart, 165 U. S. 188, 41 L. ed. 680, 17 Sup. Ct. Rep. 300; Hedrick v. Atchison,
T. d S. F. R. Co. 167 U. S. 673, 42 L. ed. 320, 17 Sup. Ct. Rep. 922; Atchison, d S. F. It. Co. v. Matthews, 174 U. S. 96, 43 L. ed. 909, 19 Sup. Ct. Rep. 609; Whit¬ ney v. United States, 181 U. S. 104, 45 L. ed. 771, 21 Sup. Ct. Rep. 565; Eastern Bldg, d L. Asso. v. Ebaugh, 185 U. S. 114, 46 L. ed. 830, 22 Sup. Ct. Rep. 566; Jenkins v. Neff, 186 U. S. 230, 46 L. ed. 1140, 22 Sup. Ct. Rep. 905; E. Bernent d Son v. National Har¬ row Co. 186 U. S. 70, 46 L. ed. 1058, 22 Sup. Ct. Rep. 747.
It is evident on the face of the record that the question on the merits is not open to possible contention because it has pre¬ viously been so specifically and adversely ruled on by this court as absolutely to fore¬ close further contention on the subject.
Equitable Life Assur. Soc. v. Brown, 187
U. S. 308, 47 L. ed. 190, 23 Sup. Ct. Rep.
123.
Mr. Justice Holmes delivered the opinion of the court:
This is a writ of error to the supreme court of Washington on the ground that full faith and credit has not been given to a decree of divorce rendered in the state of Kansas. See
23 Wash. 132, 62 Pac. 862. The record is long, but all that is material to the case in this court can be stated in a few words. The defendants in error are the children of one F. M. Tull, and brought a complaint for the purpose, so far as the savings society, the plaintiff in error, is con¬ cerned, of establishing their right to an un¬ divided share in certain land in Spokane, Washington, to which the savings society claims an absolute title. At least, that form of relief was held to be open under their complaint. Their claim was made on the ground that the land was community property of their parents, and that they in¬ herited an undivided share upon their mother’3 death. The savings society claimed under the foreclosure of a mortgage executed by F. M. Tull. Before the execu-
375
126-129
Supreme Court of the United States.
Oct. Term,
tion of their mortgage, and after Tull had applied for a loan, his wife died, and pro¬ bate proceedings were instituted under which Tull purported to purchase his chil¬ dren’s interest as a preliminary to making the mortgage. It has been decided that these probate proceedings were voi<i as against a purchaser with notice, and that the savings society took with notice. These are local matters, with which we have no concern. But the savings society contended that it had a good title, irrespective of these proceedings. The land was purchased with the proceeds of Kansas property which seems to have stood in the name of F. M. Tull. Tull procured a divorce in Kansas, 1 127] and, if that ‘divorce was valid, his wife’s interest in his property was gone. There¬ fore, it is said, the land in Washington fol¬ lowed the character of the purchase money as his separate property, although, before the payment was completed, the divorced parties made up their differences, and were married to each other a second time.
The supreme court of Washington, trying the case de novo, found that Tull had changed his domicil from Kansas to Wash¬ ington before beginning his divorce proceed¬ ings, and therefore that the decree was without jurisdiction, and void. It further found, on evidence satisfactory to itself, that, the divorce being out of the way, the property was joint or community property, apd that his children had the right they claimed. With this last again we are not concerned, and the only question for us is whether the court could go behind the rec¬ ord of the Kansas case.
There is a motion to dismiss. It is said that the Federal question was not set up in the court below, and that the court put its decision on two distinct grounds, one of which was that the society was estopped to deny the children’s title. The latter ground, it is said, was independent of the Federal question. But the opinion of the court deals expressly with the constitutional rights of the savings society, and the society seems to have insisted on those rights as soon as the divorce was attacked. Tullock v. Mulvane, 184 U. S. 497, 503, 504, 46 L. ed. 657, 662, 663, 22 Sup. Ct. Rep. 372. As to the other point, it is at least doubtful whether the court meant to find any estoppel except on the footing that the property was shown to be community property. The mo¬ tion to dismiss is overruled. See Johnson v. Risk, 137 U. S. 300, 307, 34 L. ed. 683, 686, 11 Sup. Ct. Rep. 111.
On the merits, however, the plaintiff in error has no case. It is suggested that the invalidity of the judgment for want of ju¬ risdiction was not put in issue in the plead¬ ings. It is a sufficient answer that the su- 376
preme court of the state treated it as in issue. Hill v. Mendenhall, 21 Wall. 453, 22 L. ed. 616, relied on by the plaintiff in er¬ ror, came from the circuit court of the United ‘States, and when a case properly is