This analysis and classification, the court said, serves conclusively to demonstrate that the limited recognition which is given in most of the states to such em parte decrees of divorce rendered in other states is wholly inconsistent with the theory that such limit ed recognition is based upon the operation of the full faith and credit clause of the consti tution, and on the contrary is consistent only with the conception that such limited recog nition as is given is based upon state comity. In Haddock v. Haddock, 201 U. S. 562, 26 Sup. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas. 1, it was held that a decree of divorce rendered in Connecticut, where the husba'nd had his domicil, against a non-resident defendant who had never been domiciled in that state, was not, by virtue of the full faith and credit clause, enforceable in all the other This decision was by a divided court. In 19 Ham L. Rev. 586, it is elaborately crit icised, but the supreme court of Utah (infra), in deciding whether it was justified in granting a divorce, or whether it had ju risdiction, where the husband had abandoned his matrimonial domicil in that state, was constructively served with notice, and failed to appear, followed the Haddock Case and in a careful analysis of it, to' determine if under its ruling the decision of the Utah court would be entitled to full faith and credit, held that it would ; that a man can not change the matrimonial domicil by aban doning his wife and going into another state to reside, and laid down the following prop ositions deduced from it : Divorces may be granted by state courts, upon constructive service, where statutory cause and residence co-exist, which become binding upon the parties, the courts of all states, and upon all persons: (1) In cases where the parties are residents of the state at the time of the marriage and thus estab lished a domicil of matrimony in that state and the _complaining party continues this domicil up to the time of the action. (2). In all cases where the parties are married out of the state, but come to reside in the state afterwards and recognize the marriage relation within • the state and thus establish a domicil of matrimony therein, and the par ty bringing the action continues this marital domicil up to the time of bringing the action. (3) In all cases where a statutory cause and residence co-exist where personal service is had; State v. Morse, 31 Utah 213, 87 Pac. 705, 7 L. R. A. (N. S.) 1127.
Where the full faith and credit clause of the constitution is invoked to compel the en forcement in one state of a decree rendered in another, the question of the jurisdiction of the court by which the decree was render ed is open to inquiry, and if there was no jurisdiction either of the ,.subject-matter or of the person of the defendant, the courts of another state are not required, by virtue of the full faith and credit clause, to enforce such decree; Haddock v. Haddock, 201 id. 562, 26 Sup. Ct. 525, 50 L. Ed. 867, 5 Ann. Cas. 1.
Where substituted service was made upon a non-resident defendant in accordance with the laws of the state granting the divorce, it has been held in New York that the decree of divorce was entitled to full extra-terri torial validity under the full faith and credit clause of the federal constitution ; North v. North, 47 Misc. 180, 93 N. Y. Supp. 512; but the deserted spouse had acquired a bona lido domicil in the state granting the decree. It
Is said that this case marks an important development in this branch of the New York law (19 Harv. L. Rev. 61), rendered neces sary by the decision of the supreme court in the Atherton Case, 181 U. S. 155, 21 Sup. Ct. 544, 45 L. Ed. 794, reversing 155 N. Y. 129, 49 N. E. 933, 40 L. R. A. 291, 63 Am. St. Rep. 650, which, following the New York rule that divorce is a proceeding in personam, required that the defendant should be personally serv ed with process within the jurisdiction of the divorce court.
A provision in the Georgia Code of 1895, § 5237, that records and judicial proceedings, properly authenticated, shall have such faith and credit given them in every court within the United States as they have by law or usage in the court from which they were taken, was held not to apply to a decree of divorce granted in Kansas based on construc tive and not actual service of process on a wife who remained in Georgia ; but, it not appearing that any fraud or concealment was practiced by the husband, the•Georgia courts, recognized the validity of the decree on the ground of comity; Joyner v. Joyner, 131 Ga. 217, 62 S. E, 182, 18 L. R. A. (N. S.) 647, 127 Am. St. Rep. 220.
A decree of a state court, having jurisdic tion of the parties, that a divorce granted in another state is valid, is held binding in a third state in an attack there upon such de cree; Bidwell v. Bidwell, 139 N. C. 402, 52 S. E. 55, 2 L. R. A. (N. S.) 324, 111 Am. St. Rep. 797, where a North Dakota decree was assailed for lack of jurisdiction and for duress and fraud by the husband in obtain ing it. The Massachusetts court, in which the wife sued for divorce, held the Dakota decree valid, as did the court in North Car olina, where after six years she again sued for divorce and it was held that the validity of the North Dakota divorce was established by the Massachusetts court and the plaintiff was estopped by the Massachusetts decree from further questions concerning the one in Dakota.
In New Jersey it was held that a court of chancery, on a bill filed by a wife, had ju risdiction to enjoin the husband from prose cuting a suit for divorce in another state, the jurisdiction of which he had invoked on a false and fraudulent allegation of his resi-' dence in that state ; Kempson v. Kempson, 58 N. J. Eq. 94, 43 Atl. 97; Kempson v. Kempson, 63 N. J. Eq. 783, 52 Atl. 360, 625, 58 L. R. A. 484, 92 Am. St. Rep. 682. The defendant in suit had disregarded the injunction and obtained a final decree of di vorce. He returned to New Jersey with a new wife, and was committed for contempt. The Vice Chancellor reported a decree that the defendant should be fined and be im prisoned until he should have the decree of the North Dakota court set aside. On ap peal, the order of the Vice Chancellor was so far modified as to require the defendant to present the truth to the court in North Dakota and in good faith to urge that its de cree be set aside, as only that court could vacate its decree, and the defendant clearly had no power to insure the result. And see Kittle v. Kittle, 8 Daly (N. Y.) 72, where a defendant in a divorce suit was enjoined from prosecuting a subsequent suit in an other state for a divorce which he intended to press to judgment, before the former was terminated, where all the witnesses were in the former state, and the wife was pecun iarily unable to defend a suit in the other state.