Evening star. [volume] (Washington, D.C.) 1854-1972, 1861-11-14
THE BARNEY CASE BEFORE rHx ORPHANS


The BARNEY CASE BEFORE THE ORPHANS
CouRT, JUDeE PURcRLL-mT. DdrIdge'S ATgH-
nasss On Monday, Mr.. Dsvidge commenced his
argument for the respondent In this case and set
out with the leading proposition that, by the law
Of this District the respondent 10 the natural
guardian Of his infant children, and as such emit
tied to the custody Of their persons and estate and
the Orphans Court has no authority to appoint a
guardian whilst respondent In willing TO act and
give the requisite security.
In regard TO what had been urged that this
right ceased before the rendition Of the Iowa de-
cree be commended that the decree OF divorce Is n
nullity, because the court which rendered IL had
ever issued against respondent and Of course
none served. He bad no notice that the suit was
pending, an6 no opportunity to defend It. He
wholly ignorant Of the proceeding, and was alb
sent In Europe when II was commenced, and did
not return to this country until after the decree
had been rendered. The only jurisdiction shown
by the record or pretended to exist Is based upon
publication Of the object OF the suit In obscure
Iowa newspaper, and the sending Of notice TO
appear at the abode Of respondent and the call
ing him three times I" solemnly" In the court
room, during his absence abroad.
Apart from the Constitution and act Of Con-
gress Of May 20, 1890, the decree being the foun-
dalton Of the present proceedings, would, upon
principles Of International law, be null and void,
owing to the want Of service Of process.
IL this decree has any efficacy, II flows frsm the
Constitution and the act of Congress ordering that
judgments and DEGREES Of one State shall have the
same effect in the other States where rendered.
that no Judgment or decree is thus protected where
there was not personal service Of process upon
the ground that the design of the Const tuition aud
act OF COngr. u was TO protect DEGREES and judg-
ments which, by international law were priu1a
faeIs evidence, and not to give effect to them
when, by such law, they were absolute utilities
But for the provisions Of the Constitution and the
act decree or Judgment of a court in State,
having jurisdiction by actual service Of process,
would in another State be Prinra faeis only, and
the object was to give increased effect to such de-
cree or judgment but not to give validity to what
was nullity by the rules Of natural Justice, az
well as International law. And to the same effect
the ruling Of every State court which has passed
upon the question
All refuse to give effect to DEGREES obtained az
this was, the authorities abundantly show
Not only was the decree utter nullitY, owing
to want Of Jurisdiction over the defendant, but
for the reason that the law Of Iowa require that
no jurisdiction should attach In any divGrcs suit
unless the petitioner had resided in the State sig
months. Mrs Barney left Paris In Nav 1861
and on the Nth Of July her petition was filed ,
and the order was decreed on the 18th Of Septem-
Der, 1851.
Mr.. and Mrs Barney were citizens Of this Dis
trict, and not Of Iowa.
He then argued that the decree was obtained
by fraud. The petition alleged that Mrs Barney
had resided six months in Iowa and the evidence
shows she had been there about two months No
proof Is shown to have been taken in support of
entered against the respondent because he was
technically Gin default " Such a record does
not show a Judicial proceeding within the
true meaning Of the Constitution and act Of Con-
2ress Courts act upon evidence, not the state
ment Of an interested party, though sworn TO, and
and the law Of Iowa required the allegations OF
the petitioner to be proved.
He then asked, IL the Iowa decree be held valid
here, what IL It's effect! II divorced Mr.. and Mrs
Barney, but not Mr.. Barney from his children
In cutting as Under one domestic relation that OF
husband and wife, II did not destroy another
domestic relation, that of parent and child The
provision giving Mrs b the custody Of the chill.
dFen cd hutd artin Ish Al ID I.
right to the children father. The mother II
now dead, and the provision for personal benefit
has ceased to operate and the right Of the father
made TO give way to s1ch provision, upon hei
death became as perfect as II ever That the
Iowa court preferred the mother to the father
IoInisnss no reason wny stranger should now be
the allotment Of the children TO the wife did mo-
dissolve the relation Of parent and child. The
and during her life the father was bound for thei
support. The property of these children Is by gif
or purchase, and Mr. B Is " fatherr according Il
the very terms Of the act Of Congress Of 1876
He then said II was commended that the pro-
vision In the Iowa decree as to the custody OF the
children Is an estoppel, but an estoppel binds
parties and privies as TO the subject matter, and
Ii 10 difficult to perceive who can claim under
Mrs. b, benefit personal to her, and which ex
pired at her death. The children were not par
ties TO the Iowa suit, was the petitioner, no
do they or be claim anything und' Mrs. b.
There can be no estoppel an to matter Incl
dental and collected to the orig nal suit-anf
sucn the CUSTODY OF the children plainly was
Nor can there be an estoppel where the deere,
was not naal and conclusive, and the order as 4
the custody Of the children was by the expires
law Of Iowa liable TO be changed or modified a
any time. The act Of Congress gives the deere.
the same force here It had In Iowa, but il has n,
greater force IL was mere provisional decree
Intended to be changed as often as circumstance
might require.
He then argued that this court has not tb,
transcendent Jurisdiction of the Court Of CHANGER,
over the relation Of parent and child. The gen
Of n al hu n n.
subject matter and the sanctty Of the parental re
lation. IL was never meant by that act TO inves
this court with power TO cite parents and confd
their children to other hands il such parents, II
the opinion Of this court, had been guilty Of mis-
conduct In regard TO the persons or estate Of tn
children at any time from their birth IL sucl
extraordinary power exists in this court the in
quiry must be confined to the period since Mrs
B g death; and assuming this power to exist, thi
csurtwill be governed by the principle which
in similar cases, controls Court Of Chancery
where the power 10 never exercised, unle-s wheI
owing to moral turPitude and degradation tn
parent IL utterly incapable Of discharging tn
duties which the law imposes on him in relation
to bis children. He then said that applying thI
principle, the present application 10 absurd
In conclusion he said he would take up tn,
evidence tomorrow aud show what lank per
Torrance had followed the bloated assertions mad
at the opening Of the case by the other side.
DEATHS OF SoLDrERs.-The following soldier
died Yesterday:
John w Russell, company X, Seventh Penn
sylvania cavalry, at the Circle Hospital.
z Mclaughlin, company II, Third Pennsyl
vania cavalry, at the Hospital.
Corporal Ell r. SayTe, company A, Seventh
Wisconsin regiment, at the Eruptive Feve
Hospital.
ID. H Judd, company H, Forty-sixth Penn
sylvania regiment, at the lnfrmary
William Breckhelt, company F, First regimen
N Y, al Camp Cochrane.
Charles Rye, private, company F Fourth Penn
sylvania cavalry, died at Columbia Hospital, o
typhoid fever.
Hvy..-o,uxy pov, . xyho a. , r,{.on.xg, oh..o
Of the Provost Guard, and held for tamperin
with soldiers, IL well known the proprietor Q
restaurant near the depot. The search warran
Of detective Allen req airing that " the bodyn @
the proprietor, az well as property found on tn
premises, should bereturned before the magistrate
Boyle was taken before Justice Dom. But In tn
meantime some sent word to the Proves
Guard relative to other property in the house. di,
closed by the search, which belonged 10 soldier
Boyle was tax IN into their custody. His friends
last nie ht were exceedingly anxious to have biz