The Providence news. (Providence [R.I.]) 1891-1906, 1897-01-15
Granted Absolute Divorce
by Judge Russell.
His Wife's Previous Dakota
Decree Held Invalid.
Could NOt Obtain Residence There
Against Husbands Will.


Harry p. McGowp, son of former Justice
Henry p. MCGOWAN of the city court, for
an absolute divorce and the custody Of
their child, against his wife, Mary Emma,
| who, on the strength of North DAKOTA
decree, married Harry W. Bell Justice
Russell of the Supreme Court has handed
down @ decision in favor of McGown.
The defendant, a daughter of Dr.. John
| III. Demarest, friend for many years of
Justice McGowan, married young Me-
| Gown In 1887. Bell who Is tile manu-
facturer. had boar ded with them in this
city. On April "a last she left her bus.
band and went To Fargo, where she got
decree against her husband, who did not
appear, not being served with rapsrs in
that State. He contended the decree was
not binding upon him. McGown is
suing Bell to recover damages for the
alienation OF her affections.
After speaking of the claims of the de-
fendant that the courts here are bound to
recognize a divorce which is valid in an
other state, and To recognize her su 6se-
quent marriage to Bell in that state,
Judge Russell saws:
"These claims are mnnifestly unsound.
OF the husband. While there are cxcep-
tional circumstances which justify the
living apart from the husband against his
will, and while residence away from
him may be gained with his consent,
still for legal purposes, unless for
sufficient causes, the wife's place OF resi-
dence is at tho home of her husband and
child, and she cannot acquire a foreign
residence for the express purpose of free
ing herself from the charge OF violation
of duty and exempting herself from It's
obligations. Nor, il she had gained
residence in the State of North Dakota,
would her suit there have been effective.
To sever the marriage tie by judicial
force the courts must gain jurisdiction by
personal service of process upon the de-
fendant, or by mis- voluntary appearance.
While an erroneous Judgment, which Is
erroneous only because of dopsrture from
just and regulsr procedure, can bs reviewed
only by motion in the court which pre-
nounced il or by appeal from the ju1g-
the cause from the beginning can always
be demonstrated collateraliy TO show that
that Judgment was not based upon any
initiarory proceedings to which the
defendant was party other than by
name. This must be especially the prin.
ciple to be adhered to IL the sacredness
OF the marriage relation is TO be preserved
,;o ,t IN, hn
cast Of at the pleasure OF either party.
s"When the defendant went through the
form of marriage On September 20, 1855,
to Mr.. Bell she was still the lawful wife
OF the plaintiff in this action. Her own
wrong doings, therefore, cannot render
valid tie judgment of North Dakota
court, winch but tor that act woulu nave
been wholly invalid. Nur can / agree
with the counsel for the defence that she
should nave the custody of the child upon
the plea that the only cause OF complaint
with reference to that child has been her
absence from it for few months. The
separation between the mother ana child
was not Of the husbands doing. 1t was
her owu voluntary act, which cannot now
be remedied, because OF the persistence
with which steps were followed which
consummatod that separation. No cir
cumstances appear which would justify
any court. .compelledsto decide by neces-
sity created by the act of the defendant,
in tasing the child from the custody OF
the innocent parent and giving 1t to the
one whose wilful act OF wrong doing pre-
vented the joint custody OF both
parents"
Tue Judge saws that McGown at bis dis
cretion may let the mother see the child
| at certain times, and IL he does not ac-
cord her such permission ct suita BILE
times the court may hereafter grant her
permission TO see the boy.
1t is because tho judge had practically
decided from the bench thar McGown
was entitled TO q decree OF divorce that
| the present opinion deals so largely with
the custody Of the child, for which the
mother fought as last stand.
Before Justice 1ruax of the Supreme
| Court yesterday, whore the weekly list Of
undefended divorce cases was being dis
posed OF, the mon and women were scpa-
rated by order of the Judge in the inter
est OF quietude in the court room. In
some Of the cases the parties bring so
many friends. and some OF them very
tslkative men as well rs women, that
there has teen constant buzz in the
room ;of subdueu talk, The change seemed
to work, rs the women did not seem so
intent on oonversing with the women
beside them, nor did the men talk 40
much.