352
THE GREEN BAG
to the relation to have a jurisdiction suffi cient to enable it to effectually terminate this relation whether it is considered from the point of view of the person in the state or the person outside the state. Finally one may say, as does the court in the Haddock case, that an application of this doctrine to divorce cases would pro duce the result that " the states whose laws were the most lax as to length of residence required for domicile, as to causes for divorce and speed of procedure concerning divorce, would in effect dominate all the other states." This objection, however, would seem to be sufficiently met by the salutary doctrine of the Andrews' case (ante). It would seem, therefore, that both as a matter of analogy and public policy the reasoning of the dissenting minority in the Haddock case has more to commend it. There are many other interesting ques tions that the decision suggests that can only be alluded to briefly. Suppose the wife justifiably leaves the husband in New York, their matrimonial domicile, and goes to Connecticut, there acquires a bona fide domicile and brings divorce proceedings. Connecticut, according to the Haddock case, has no jurisdiction to grant an effective decree because it is neither the state of the domicile of the husband nor of the matri monial domicile. Suppose the husband, keeping his New York domicile, appears in the divorce proceedings. Has Connecticut jurisdiction? Before the Haddock case this would not have been open to doubt but the reason that would have been given would be that Connecticut had jurisdiction be cause of the domicile of one of the spouses. The court in the Haddock case says that Connecticut would have jurisdiction because the husband appeared, and cites therefore Cheever v. Wilson (ante). The facts in that case were just these but the court laid no weight on the fact that the husband ap peared, but on the contrary used the fol lowing language (9 Wall, at 124) : "The pro ceeding for a divorce may be instituted
where the wife has her domicile. The place of the marriage, of the offense, and the domicile of the husband are of no conse quence." But this is not the theory of the Haddock case. That goes on the reasoning that the foundation of the jurisdiction in divorce is domicile over both parties, that to allow a state because one of the spouses is there domiciled to project its decree even incidently in another state and affect the other spouse there domiciled would be to permit it to affect a matter that relates to the status of a member of another com munity and so give its decree extra terri torial force. Now it is clear from the An drews case (ante) that divorce proceedings involve more than the parties alone; and it may be fairly asked how, if both parties cannot by consent give a state not their domicile power to affect their status, which is the holding in the Andrews case, and if the domicile of one party is not in itself enough to give a state jurisdiction to affect the other party, how the mere consent of that other party can add anything to the jurisdiction of a state in which he is not domiciled. Again, suppose a state of facts like O'Dea v. O'Dea, 101, N. Y., 23 (1885). Husband and wife were married and domiciled in New York. The wife deserted the husband and resumed so far as she could her former domicile in Canada. The husband removed to Ohio and there acquired a bona fide domi cile and then obtained a divorce from his wife because of her desertion, she having notice of the proceedings but taking no part therein. The wife then married O, where it does not appear, but they apparently afterward became domiciled in New York where 0 brought proceedings against his wife to have his marriage annulled on the ground that at the time thereof his wife was a married woman. The court granted the decree. There was a dissent pointing out that at the time of the divorce the wife was domiciled either in Ohio or in Canada, certainly not in New York, and
