The San Francisco call., 1896-03-25
The De La Montanya Troubles
Cause a Long Supreme
Court Opinion.
A DEFENDANTS LUCKY ESCAPE.
He Got Away Before Suit Was Filed
and Pleaded Lack of Juris.
diction.


The case is celebrated one on account
of the prominence of the parties to the
suit and of the peculiar charges made and
circumstances surrounding it. The COM
plant was filed two days after the defend
ant left for Europe, taking with him his
two children. There was no personal sum-
mons possible, so an attempt was made to
establish constructive summons by publ
cation. De la Montanya went direct to
Paris, arriving there on December 10, 1898,
and on July IA, 1894, he applied for and
was given permission by the French Min
lister of Justice to domicile himself in
France.
In the suit commenced two days after
he defendants departure the claim was
made that he left the State for the express
purpose of evading the courts jurisdiction.
The default of De la Montanya was en-
tered, the cause was tried, and on May 16,
1894, Judgment was rendered for the plain
tiff The judgment was that the marriage
be dissolved, that the care of the children
be awarded to the plaintiff, and that she
should at any time have the right to ap
ply to the court for suitable allowance
from the defendant.
On September Z, 1894. the defendant
moved for an order vacating this judg-
ment in so far as it rel ated to the support
of the plaintiff to the care and custody OF
the children and SO far as it related to
alimony. This motion was based upon
the claim that the court had no lurisdic-
ton over the subject matter or over the
person of the defendant, as he was and
had since the beginning of the action been
outside of the State, and no process or
summons had ever been served upon him,
and that the children were not at the be-
ginning of the action, and had not been,
in California. This motion was denied,
and upon an appeal from that denial the
case came before the Supreme Court. The
Supreme Court has reversed this ruling
and has directed the trial court to grant
the motion.
On appeal De la Montanya based his
plea for reversal of the order on three
grounds: First, that the proof of publi-
cation showed that constructive service
had never been had according to the laws
of this State, and therefore the judg-
ment was void; second. the defend
ant and children at the time of
the attempted service of summons
were domiciled in France and therefore
the courts OF this State had no jurisdiction
to award the custody of those children to
the plaintiff, or to award alimony, and
third, that the mere fact that the defend
ant and the children were outside of the
State at the commencement of the action
even admitting that the children were
domiciled in California and the construc-
tive service of summons was in all re-
spects regular.
The plaintiff admitted the facts in re-
gard to the departure of the defendant
from the State with the children, but
claimed that as matter of fact and of
law the children had always been domi-
ciled in California, and she contended that
such being the case the court acquired
jurisdiction, not only to grant the divorce
to her. but to enter q judgment against
the defendant valid at least in California.
She also contended that the judgment
awarding to her the custody of the chill
dren was valid, because it was an incident
to the divorce, and that upon dissolution
of the marriage it was necessary to pro-
vide for the children. Furthermore she
contended there was no judgment for ali
mony or allowance of any kind.
The Supreme Court SAYS that, conced-
ing the defendant and the children were
ali domiciled in California, although in
fact absent from the State at the time of
the commencement of the action, and
since then, and that the constructive SER
vice of summons was sufficient to give the
court jurisdiction, the court did not have
the power 10 award the plaintiff the ex-
elusive custody of the children and allow
alimony. To concede that the Judgment
was good would be to allow the invasion
of one State by the process-seryers of an.
other. A process cannot 60 beyond
State and compel any person there to re-
turn to the State wherein the action was
being brought and there make his defense.
As we'll might a citizen of foreign State
be summoned from its borders for the
same purpose. LII such things could be
done there would be no one to determine
the particular domicile of any person.
Domicile often depends upon secret inten-
ton, and such test would be most un-
satisfactory.
1t has been often said by courts that
domicile is the test of jurisdiction in di-
vorce matters, but the Supreme Court
holds that this doctrine has been built up
mainly, if not entirely, to prevent parties
really residing in State from going else
where for the purpose of getting divorce.
Domicile and actual residence do not al
ways coincide, the court notes, and the
question is asked, Where, then, does the
Jurisdiction rest2" Jurisdiction, the
opinion continues, is derived from the
constitution and laws creating the court,
and there is no limitation in the constitu-
ton of the United States upon the power
of State to give to its courts jurisdiction
over all persons found within its borders
Domlcile is the test of personal rights in
regard to inheritance, but unless made SO
Dt lOCdl Inv ~ 10 AOt LII as di1cCtlllS
the relations of the individual to the Gov
eminent. The relations of the individual
to the Government depends upon actual
presence within the territorial limits of q
country and upon citizenship or allegiance.
Referring to the contention of the re-
spondent that the decree was valid as to
children and alimony, although the SER
vice was constructive and personal judg.
ment could not be rendered as incident to
the divorce, the opinion says that it can
not properly be said that there was a de-
fendant in the case; that the summons was
not q writ to bring the defendant into
court but notice that proceedings were
pending against him. 1t brought the case
into court, but not the defendant, and the
al Indication must be confined to that
status of affairs.
Regarding the children the court says
the court may award their custody to one
OF the parents. 1t is a mode of appointing
a guardian which is always matter of 10
cal control regardless of the legal domicile
of the children, if domicile and residence
do not coincide.
The or;piou fbey, ct fac that he ;ol