#### The People of the State of New York, Relator, *v.*Lucia Dewey, Respondent.

(Supreme Court, New York Special Term,

April, 1898.)

1. Habeas corpus — Foreign adjudication on habeas corpus — Estoppel.

Where there is no proof of the effect, under the law of a foreign state, of a determination, there made under a writ of *habeas corpus*issued to procure the custody of a child, the New York rule, that such a determination is conclusive only where the facts are identical, must govern. Where the record in ithe foreign state is not produced in *habeas corpus*proceedings (taken in this state, it cannot be assumed that the facts are identical and the foreign determination constitutes no estoppel to the proceedings taken in this state.

*2.*Same — Writ illegally served on Sunday — Waiver.

The foreign determination, impeachable in the interests of the child, can afford no estoppel where, contrary to the law of this and of the foreign state, the foreign writ of *habeas corpus*was served on Sunday. Such a defect is not waived by the appearance' in the foreign court of the person in custody of the child, nor by her pleading to the writ, nor by that court’s denial of a motion to quash the writ for invalidity in its service.

*2683. Same — Civil status of the child established by the domicile of the divorced mother — Power of foreign court.

Where the mother, and the actual custodian at all times of the child, has, after having procured a divorce from her husband (the relator in the present proceedings), upon the ground of abandonment (which decree made no disposition of the child), established a domicile in the state of New York and maintained the same for four years, her civil status "establishes that of her child and a foreign court has no power, while she and her child are temporarily sojourning in the foreign state, to regulate the relations between them upon the return of a writ of *habeas corpus*procured by the present relator.

Habeas Corpus proceedings for the possession of an infant. The opinion states the case.

Otto H. Wefing (Amos H. Evans, of counsel), for relator.

John A. Grow (A. J. Booty, of counsel), for respondent.

Pryor, J.

In *habeas corpus*for the possession of ia child, the relator relies upon .an 'order or decree in' a like proceeding in a County Court of Texas, awarding custody to him — conceding that unless such order or decree he. conclusive ¡of his right, the writ should he dismissed.

Full faith and credit must.be given in each state to the judicial proceedings of every other state (U. S. Const., art. 4, § 1); .and they shall have such effect in any court in the Hnited States, as they have by law or usage in the courts, of the. state in which they are takem Act of Congress, May 26, 1790. ■

Assuming the validity of the Texas proceeding it is not apparent that, in that state, a determination upon *'‘habeas corpus*for the custody of a child, has the binding and indefeasible effect of *res judica,ta;*and in the absence of proof of the foreign law, the *lew fori*furnishes the rule of decision. Monroe v. Douglass, 5 N. Y. 447. In Hew York a determination upon *habeas ‘corpus*as to the custody of a child is a'definitive and .¡conclusive adjudication only on an identical state of facts (People ex rel. Barry v. Mercein, 3 Hill, 399; People ex rel. Keator v. Moss, 6 App. Div. 414); and the record fails to satisfy me that the '.present condition of this ' child and the parents is such as to compel obedience to the mandate of the Texas court. In an action the *269party alleging the estoppel of res *adjudicate/,*must clearly establish it (Zoeller v. Riley, 100 N. Y. 102; Bell v. Merrifield, 109 id. 202); and in *habeas corpus*the relator is under the same obligation. In re White, 45 Fed. Repr. 237, 239. The evidence in the Texas proceeding not being before me, I am unable to say that the case then made is identical with the case now presented. State v. Brearly, 5 N. J. L. 555, 561.

Whatever effect may be allowed to an adjudication in *habeas corpus*by the jurisdiction rendering it, it has no operative force in another state; because “the decision of the .court there could in no respect bind this, court. The inquiry and command of that court must be bounded by the state in which it sat.” State v. Brearly, 5 N. J. L. 555, 561; Maria v. Kirby, 12 B. Monroe, 542, 545.

But however conclusive the Texas decree upon the right of the Etigants, the child not being a party is notiaffected; and its interest must determine the present controversy. Brewer, J., in the Matter of Bort, 25 Kan. 308; 37 Am. Rep. 255.

Conceding, however, the efficacy , of *res judicata*to the Texas decree, if valid, it is open to the respondent to challenge it (Hunt v. Hunt, 72 N. Y. 217, 225; Atherton v. Atherton, 155 id. 129, 134); and she impeaches it for- defect of jurisdiction in the court to render it.

By the law of ETew York “ no writ, process, order, judgment, decree or other proceeding of any court or officer of justice,” except in criminal cases, “ shall be served or executed upon the first day of the week, called Sunday.” 1 Rev. Stat. 675, § 69. In Texas “ no civil suit shall be commenced, nor shall any process be issued or served on Sunday, ,except in cases of injunction, attachment, garnishment, sequestration or distress proceedings. Rev. Stat. of Texas, 1895, art. 1180, as amended in 1897. Indeed, at common law Sunday was *dies non juridicus*as to process. 1 Robinson’s Practice, chap. 72, p. 389; Story v. Elliot, 8 Cow. 27, note, p. 31.

Even when instituted for the reHef of an alleged criminal *habeas corpus*is a civil procéeding *(Ex parte*Tom Tong, 108 U. S. 556); and *a fortiori*is it such When invoked to determine the custody of a child. Legate v. Legate, 87 Tex. 248.

It is conceded that in the present instance the writ was served on Sunday. Such service, forbidden by the law of Texas> wás a nullity, and the proceedings-founded upon it void. Roberts v. Monkhouse, 8 East, 547; McIlehaw v. Smith, 8 T. R. 86; Taylor v. *270Phillips, 3 East, 155; Merrett v. Earle, 31 Barb. 38, 41; Van Vechten v. Paddock, 12 Johns. 178; Butler v. Kelsey, 15 id. 177; Pulling v. People, 8 Barb. 384; Allen v. Godfrey, 44 N. Y. 433; 24 Am. & Eng. Ency. of Law, 574; Coleman v. Henderson, 12 Am. Dec. 290, note; Crabtree v. Whiteselle, 65 Tex. 111.

It is answered that by appearing and pleading, the respondent waived the irregularity and gave the. court jurisdiction. The contention is untenable. In Taylor v. Phillips, 3 East, 155, Lord Ellenborough, Ch. J., said: “It wash matter of public policy that no proceedings of the nature described in the statute should be had on ..Sunday; and,, therefore, .the regularity .or irregularity, of them could not depend on the assent of the party afterwards to waive an objection to such proceedings, which were in themselves absolutely void.” Cited with apprbval, 12 Johns. 181.

The Texas court having denied a motion to quash the proceeding for'invalidity in the service of the writ, the relator insists that the decision is conclusive of the regularity ’of the proceeding. But, “if the court has not acquired jurisdiction of the person of the defendant—that is, if no sufficient process has been served upon him — there can be no judgment, even of abatement, given against the plaintiff; for the defendant must become a party in the court before he can have a judgment.” King v. Poole, 36 Barb. 242, 244. And if no judgment be possible for the" defendant, much less may there be a judgment against him. Without cognizance of the "cause, any order - in it, if not of dismissal, is. necessarily a •nullity; and the decision of the court that it had jurisdiction, is of no avail against the contrary fact. .

The obvious and inevitable inference is, that the so-called adjudication in the Texas proceeding is. inoperative as an estoppel. • ■ ' ' "But for another and independent .reason that pretended adjudication is ineffectual to uphold this proceeding. In October, 1893, the respondent obtained a divorce from the-relator On the ground of abandonment. By the decree no disposition was made of "the child, but it remains with the mother ,and is maintained by her exclusively. . The divorce enabled 'her to establish a domicile for herself (Bennett v. Bennett, Deady, 299; Vischer v. Vischer, 12 Barb. 640); and for four years she, with the child, has been a resident citizen of-the state of KeW York. By the abandonment of the child and neglect to support it, the relator relinquished his paternal right (Wilson v. McMillan, 35 Am. Rep. 118, note); and thereupon the guardianship of the child devolved upon the *271mother. As natural guardian, she was competent to change her ward’s domicile (Jacobs on Dom., § 255); and this she did by bringr ing the child into the state of Hew York. Her domicile became its domicile.

At the time, then, of the Texas proceeding, both mother and child were domiciled in the state of Hew York; and it was beyond the power of the Texas court to regulate the relations between them. The relation of parent and child is a civil status. 1 Bish. on M. & D., § 16. *“*It is plain that every state has the right to determine the status, or. domestic or social condition of persons domiciled within its territory.” Hunt v. Hunt, 72 N. Y. 217, 227; Strader v. Graham, 10 How. (U. S.) 82. “ Every nation may determine the status of its own domiciled subjects, and any interference by foreign tribunals would .be an officious intermeddling with a matter in which they have no concern. The parties cannot consent to the change of status, and the judgment is not binding in a third country.” Black on Jurisdiction,' § 77. When the Texas proceeding was instituted the respondent and her child were transiently in that state, upon a temporary occasion and with the intention of returning to their domicile in Hew York. “ Though a state may have a right to declare the condition of all persons within her limits, the light only exists while that person remains there. She has not the power of giving a condition or status that will adhere to the person everywhere; but upon his return to his place of domicile he will occupy his former position ” (Maria v. Kirby, 12 B. Monroe, 542, 545, a case in which the decision is an adjudication of the precise point in controversy.

It results, therefore, that the Texas decree is of no effect in this state upon the right of the respondent to the custody of the child.

The validity of that decree is further impugned for fatal irregularities in the proceeding, but its futility as ¡an estoppel being already apparent, the discussion need not be prolonged.

The writ is dismissed; and as the respondent’s fitness for the care and control of the child is not questioned, it is remanded to her custody.

Ordered accordingly.