author: Per Curiam.

text:
    ANNIE LOUISE CAMPBELL, Appellant, v. WILLIAM CAMPBELL, Respondent.

      Husband and wife—Georgia judgment in action by wife for provision for herself and minor children, defense to an action on in this state.-—• Construction of Georgia statute by a superior court judge of that state, effect of on trial.-—-Construction of § 1747 of Georgia Code, irrespective of a decision thereon by the courts of that state.—Mala-fide action by a plaintiff may become a bona-fide one on behalf of the defendant.

    The pendency in this state of an action of divorce brought bona fide by either husband or wife after judgment in favor of the wife in a proceeding brought in a Georgia court for a provision by her husband for her support and that of her minor children, and the making in the action in this state, on the application of the wife, of an order for temporary alimony, constitute a good defense to an action brought in this state on such Georgia judgment.
    The judge of the superior court of Georgia, on the trial of the action brought in that court under § 1747 of the Code of that state, by the plaintiff here against the defendant here, for a provision for the support of herself and her minor children, held and decided in construing that section, that an action for divorce brought and pending in the state of New York came within the provision of the phrase “ action for divorce pending ” as used in that section. There being no other construction as to the meaning of that phrase by any other courts of that state, the construction thus placed on it is conclusive on the courts of this state.
    Irrespective of the conclusions of the Georgia decisions on the construction of § 1747, that construction commends itself to this court, and is correct. In case of proceedings commenced under that section, but not ripened into judgment, the essential fact to abate them is the pendency bona fide of an action for divorce in which alimony may be allowed ; the essential thing for the suspension of the judgment is the granting an allowance in such an action for divorce. In either case, the locality of the court is unimportant.
    The defendant in this action commenced an action against the plaintiff herein for a divorce a vinculo matrimonii. That actipn was commenced malafide ; the defendant therein (the plaintiff here) came in and answered therein. By her answer she denied the allegations made against her, and alleged acts of adultery committed by the plaintiff therein, and prayed for a judgment in her favor of divorce a vinculo matrimonii. On the coming in of that answer she became in effect a plaintiff in that action, and since then its pendency has been in good faith.
    Before Sedgwick, Oh. J., Freedman and Ingraham, JJ.

      Decided May 6, 1886.
    Appeal by plaintiff from a judgment dismissing the complaint entered on the report of a referee.
    The facts sufficiently appear in the following opinion of the referee
    Hamilton Odell, Beferee.—“This action is brought upon a judgment rendered in favor of the plaintiff and against the defendant in the superior court of Chatham county, in the state of Georgia.
    1 ‘ In the year of 1815 the plaintiff and the defendant were married at the city of New York, and thereafter resided in that city as husband and ivife, down to a day in December, 1881. The issue of the marriage was one child, a daughter, who, at the date last mentioned, was about five years of age. On or about December 10, 1881, the parties left New York by steamer for the south, the plaintiff intending to spend some weeks in Florida, and the defendant intending to return after a brief absence. For a long time their married life had been turbulent and unhappy. While on board the steamer serious disagreements took place between them, and upon their arrival at Savannah, on December 13, the defendant quit the ship early in the morning, and secretly, and without any notice to, or any communication with the plaintiff. Mrs. Campbell, with her little daughter, went to a hotel, and not hearing from her husband during the day, made complaint against him before a magistrate, charging him with having willfully abandoned his child, and left her in a dependent or destitute condition—an offense which is declared to be a misdemeanor by section 4373 of the Georgia Code. Upon this complaint a warrant was issued for the defendant’s arrest, and he was taken into custody at a railroad station a few miles out of Savannah as he was about to take passage for New York. On the same day, the proceeding was instituted in the superior court of Chatham county, which, in July following, after a stubborn and miscellaneous resistance on the part of Mr. Campbell, resulted in the judgment which is the basis of this action.
    <c By the Georgia Code, permanent alimony is granted ‘ where the wife, "against her will, is abandoned by her husband ’ (§ 1744). The husband, in such case, ‘ may voluntarily, by deed, make an adequate "provision for the support and maintenance of his wife consistent with his means and her former circumstances, which shall be a bar to her right to permanent alimony ’ (§ 1745). In the absence of such provision, on the application of the wife, a court of equity may, by decree, compel the husband to such provision for the support of the wife and such minor children as may be in her custody, as indicated in the foregoing paragraph (§ 1746). And section 1747 provides as follows: ‘When husband and wife are living separately, or are bona fide in a state of separation, and there is no action for divorce pending, the wife may, in behalf of herself and her minor children, if any or either, institute a proceeding by bill or petition on the equity side of the court, setting forth fully her side of the case, and, upon three days’ notice to the husband, the judge may hear the same in term or vacation, and grant such order as he might grant were it based on a pending libel for divorce, to be enforced in the same manner, together with any other remedy applicable in a court of equity, . . and should such a proceeding proceed to a hearing before a jury, they shall decree as provided by section 1/746 of this Code for such cases.’
    “On December 13, 1881, the very day of her arrival in Savannah, Mrs. Campbell filed her petition in the superior court of Chatham county, in which she alleged that the defendant, her husband, had deserted and abandoned her, that they were living separately, that they were bona fide in a state of separation, that no action for a divorce was pending, that she instituted her proceeding for alimony in behalf of herself and her minor child, and praying, among other things, that the defendant might be decreed £ to pay such a sum of money by way of alimony for the support of herself and child, including counsel fees and the expense of litigation, as the condition of her husband and the facts of the case justify.’ On the same day, personal service of the petition was made on the defendant. On December 16 he appeared by his attorneys and filed a plea to the jurisdiction of the court, which was overruled. He then demurred to the petition, and his demurrer was also overruled. He appealed to. the supreme court from an order of the superior court judge allowing temporary alimony, and the order was affirmed. He filed his petition, affidavit and bond for the removal of the cause to the United States circuit court, and his petition was denied. He filed a special plea, alleging that an action for a total divorce was, in good faith, pending between the parties in the supreme court of the state of New York, and claimed, that by force of a Georgia statute (to which reference will be made hereafter), the £ equity cause ’ in the Georgia court for ,alimony was in abeyance, but this plea in abatement was overruled, and it was ordered that £ the cause stand for trial.’
    ££ On July 17, 1882, the issues in the case were brought to trial, and a general verdict was rendered in favor of the plaintiff. In answer to specific questions submitted to the jury by the court, the jury answered that the complainant was £ entitled to alimony, in behalf of herself and minor child, against the defendant,’ and that the ‘first payment shall be $15,000, to be paid August 1,1882; subsequent payments shall be $10,000, payable August 1, thereafter annually.* On July 19 it was, by the said superior court, 1 ordered, adjudged and decreed that the said verdict be, and the same is hereby, made the decree of this court,’ and that, ‘the complainant, Annie Louise Campbell, do recover from the defendant, William Campbell, the said sums of money so allowed as alimony for the support of herself and child, .... and that the defendant do pay to the complainant the said sums of money at the times specified in said verdict, that is to say, $15,000 on the first day of August, 1882, and $10,000 on the first day of each succeeding August, annually thereafter.’ It is upon this judgment that this action is brought—-for $25,000, falling due on the first days of August, 1882 and 1883.
    “It is now insisted in behalf of the defendant, that the judgment of the Georgia court is absolutely void, having been rendered after the jurisdiction of that court had been taken away by the removal of the cause to the circuit court of the United States. The chief contention before me has been over this question of loss of jurisdiction, and a discussion of it necessarily involves a further reference to facts and incidents, which appear by the record of this odd, and, in some respects, extraordinary proceeding in the Georgia court.
    “As before mentioned, the petition for the allowance of permanent alimony was filed on the very day of Mrs. Campbell’s arrival in Savannah. Her husband had left her stealthily in the morning, had avoided her during the day, and in the afternoon had attempted to quit Savannah for home, without notice to the complainant and without having made any provision for her necessities or support. These facts constituted the ‘desertion and abandonment ’ alleged in her petition, and they are the only facts therein set forth which furnish any explanation of the further allegations, which were necessary to authorize the court to entertain the proceeding, that the petioner and her husband were ‘ living separately ’ and were ‘ bona fide in a state of separation.’ On December 17, in an affidavit sworn to in Savannah and designed for use upon a motion made in her behalf for temporary alimony and counsel fees, she deposed as follows : ‘And deponent says further, that her husband, having abandoned her in.Savannah, and having thus deprived her of a home, and as her delicate health requires her to live a large part of the year in a southern latitude, she elects to make this county her place of residence and alleges this county to be the place of her domicil, and she deposes that she is a resident and citizen of this county, and was at the filing of this bill.’ A few days later, and prior to December 21, she testified, while being orally examined for some undiscovered purpose, that she became a citizen of Georgia on December 13, that it was her intention to stay in Savannah during the balance of her life, that she never intended to go away again, except in extremely hot weather, and that she had adopted Savannah as her permanent residence.
    “ Before the said suit for alimony was called for trial, and in the latter part of June, 1882, the defendant petitioned the superior court for the. removal of said suit to the circuit court of the United States under the act of Congress approved March 2, 1867. In his petition he alleged that at the time of presenting it, and also at the time of the bringing of said suit, the defendant was a citizen and resident of the state of New York, and the plaintiff was a citizen and resident of the state of Georgia ; and along with his petition he filed the affidavit and the ‘ good and sufficient security ’ which the statute requires. I do not understand plaintiff’s counsel to deny that the defendant’s papers and proceedings on this application to remove were correct in form, and in strict compliance with the statute.
    “The application was resisted by the plaintiff. In a lengthy affidavit, sworn to on June 29, she set forth various reasons why it should be denied, but was silent on the subject of her citizenship and residence, it the foot of her affidavit was an unverified statement over the names of her solicitors, as follows: ‘And complainant says that this is not a controversy between citizens of different states ; that both parties are citizens of the state of New York, and were citizens of New York when this suit was begun.’ It- may be remarked here, that this affidavit and statement formed no part of the record which was afterwards filed in the office of the clerk of the United States circuit court, and on which the circuit judge made his order to remand.
    “The application to remove was promptly overruled by the judge presiding in the superior court, and the cause was ordered to stand for trial on July 1. On that day, three days after the petition to remove the cause was filed, the defendant filed in the superior court his plea in abatement before referred to, setting forth the action for an absolute divorce then pending between these parties in the supreme court of the state of New York. On July 17, the cause was brought to trial, and on July 19, final judgment was ordered upon the verdict of the jury, as already stated. Six weeks later, and about the first day of September, the defendant filed in the office of the circuit court of the United States for the southern district of Georgia a certified copy of the process, pleadings, &c., in said cause. Thereafter a formal motion was made by the plaintiff to remand the cause to the state court. This motion was not decided until about January 22, 1884, and the cause was then remanded—‘it not appearing to the satisfaction of the court that the parties were citizens of different states at the time when the action was brought.’ What reasons, if any, the circuit judge assigned for his conclusion do not appear, but he probably set over against the positive statements of the petition that the plaintiff was a citizen of Georgia, the equally positive statements of the defendant’s verified plea to the jurisdiction of the superior court, that the plaintiff was a citizen of New York.

      “ The contention of the learned counsel for the defendant—urged with much force and much apparent confidence—is that upon the filing in the superior court of the petition for removal, and the affidavit and bond prescribed by the act of Congress, the power of that court to proceed further in the case was terminated, and its subsequent' action was without jurisdiction and utterly void. The proposition is that, although a case may not be, in fact, removable into the federal court, yet it may be in fact, removed by a compliance with the provisions of the act of Congress. I have been referred to a stately fist of authorities as sustaining this proposition. In many of the opinions I find language used which, taken literally, and not interpreted in the light of the facts with which the learned judges were dealing, would seem to warrant the argument which has been pressed so vigorously by the defendant’s counsel. In Kern v. Huidekoper, 103 U. S. 485, the court said : ‘ The petition for its removal contained every averment required by law. It was filed at the proper time, and it was accompanied by a bond with good" and sufficient surety conditioned according to the statute. According to the terms of the act of Congress it was the duty of the state court to accept said petition and bond and proceed no further in such suit.’ So in Insurance Co. v. Dunn, 19 Wall. 214 : 1 The conditions prescribed having been complied with, the act of Congress expressly required the state court, where it was originally pending, to proceed no further in the suit. ’ And in Railroad Co. v. Koontz, 104 U. S. 5 : ‘ It is also a well settled rule of decision in this court that, when a sufficient case for removal is made in the state court, the rightful jurisdiction of that court comes to an end, and no further proceedings can properly be had there, unless in some form its jurisdiction is restored.....The provision of the act of 1875 is, in this respect, substantially the same as that of the twelfth section of the judiciary act of 1789, and requires the state court, when the petition and a sufficient bond are presented, to proceed no further in the suit. .... The jurisdiction is changed when the removal is demanded in proper form and a case for removal made. . . . The state court must stop when the petition and security are presented.’

      “ Of these cases it may be said that they were cases where diversity of citizenship was not disputed, and so were directly within the intent and operation of the act of Congress. But the several acts of Congress relating to the removal of causes into federal courts, all apply to, and deal with causes belonging to some special class, and to none other. As to all other causes they are wholly inoperative and without force. Chapter 196 of the Acts of 1867 (U. S. R. S. § 639, subd. 3), relates only to cases where a diversity of citizenship actually exists, not at all to those where such diversity does not exist, but is made to appear to exist by the mistaken or willfully false averments of a petition to remove. Circuit courts of the United States cannot take jurisdiction of this latter class of cases. Such cases could not be brought originally in the circuit courts, for these courts are of limited jurisdiction, and can only act within the lines prescribed by Congress (Grace v. Ins. Co., 199 U. S. 283 ; U. S. v. Hudson, 7 Cranch, 32 ; U. S. v. Bevans, 3 Wheat. 336 ; McIntyre v. Wood, 7 Cranch, 504). Nor can they be transferred from a state court to the circuit courts, because Congress has expressly limited the right to transfer cases where the contending parties are, in fact, citizens of different states. The federal court cannot take jurisdiction by consent (Mansfield Co. v. Swan, 111 U. S. 379), nor can jurisdiction be thrust upon it by a proceeding, regular in form, but based upon a suppression or misrepresentation of the truth.

      “ In Kern v. Huidekoper, cited above, the court say: ‘ If the cause is removable, and the statute for its removal has been complied with, no order of the state court for its removal is necessary to confer a jurisdiction on the court of the United States, and no refusal of such an order can prevent that jurisdiction from attaching.’ .... ‘No provision of the state law, no peculiarity in the nature of the litigation which would forbid the United States court from entertaining original jurisdiction, could prevent the removal, provided the case fell within the terms of the statute for the removal of causes.’ In Railroad Co. v. Mississippi, 102 U. S. 136 : ‘If the suit was one winch the company was entitled, under the statute, to have removed into the circuit court, then all that occurred in the state court, after filing the petition and bond, was in the face of the act of Congress. Its duty, by the express command of the statute, was, the suit being removable, to accept the petition and bond and proceed no further.’ And in Steamship Co. v. Tugman, 106 U. S. 118 : ‘ Upon the filing, therefore, of the petition and bond, the suit being removable under the statute, the jurisdiction of the state court absolutely ceased.’
    “It is settled law that a state court is not required to let go its jurisdiction until a case is made which, upon its face shows that the petitioner can remove the causeas matter of right (Removal Cases, 100 U. S. 471; Gold Washing Co. v. Keyes, 96 U. S. 201 ; Amory v. Amory, 95 U. S. 187; Yulee v. Vose, 99 U. S. 545 ; Ayers v. Watson, 113 U. S. 594). The right to remove depends upon the. existence of a particular fact, to wit; diversity of citizenship at the time of the bringing of the suit (Mansfield Co. v. Swan, 111 U. S. 379 ; Roberts v. Nelson, 8 Blatchf. 74; Miller v. Chicago Co., 17 Fed. Rep. 97; Brinckerhoff v. Morris Canal Co., 18 Fed. Rep. 97). Whether or not a case is made for removal is held to be a federal question (R. R. Co. v. Koontz, 104 U. S. 5); but it is also held that though removal, when authorized, is matter of right and not of favor, yet the state court must have the right to see whether the application comes within the meaning of the law (Wells, ex parte, 3 Woods, 131). And unless the petition, with the record, presents facts entitling the petitioner to a transfer, ‘ he has not, in law, shown to the court that it cannot proceed further in the cause ’ (Ins. Co. v. Peachner, 95 U. S. 185).
    “ This was just what the superior court of Chatham county decided upon an inspection of the petition and record in the case before it: that the defendant had not, e in law, shown to the court that it could not proceed further in the cause,’ and therefore it refused to let go its jurisdiction. It must be admitted that this decision did not operate to prevent the removal of the cause, or to retain it in the state court, if it was in fact removable, and the procéedings to remove were regular. In a proper case the removal is effected whether the state court grants or denies the petition (Bell v. Dix, 49 N. Y. 232). The decision was nothing more than an assertion by the superior court that it would continue to deal with the cause as a cause within its rightful jurisdiction and as if no attempt to remove it had been made. But, as before remarked, the question whether it had been removed was ‘a federal question,’ and the validity of all proceedings thereafter taken in the superior court would depend upon the action of the federal court in accepting or refusing jurisdiction of the cause. When that court decided that the record did not show ‘that the parties were citizens of different states at the time when the action was brought ’ it decided that this cause was outside of the act of Congress, and was not removable, and was one of which the federal court could not take jurisdiction, and that, therefore, the petition and affidavit and bond filed in the superior court were wholly ineffectual for any purpose whatever. This decision was made by the only tribunal competent to pass, in the first instance, upon the question involved, and it was not appealed from by the defendant.
    “It has been argued that the cause was for a time in the federal court, and that that court dealt with it as a cause temporarily, at least, within its "jurisdiction, by entertaining and deciding the motion to remand; and that being there, it could not also, at the same time, be in the superior court of Chatham county. To my mind this argument has neither force nor substance. If the federal court had no jurisdiction to retain the case and try the issues it had no jurisdiction for any purpose. Nor did it assume to exercise any. The defendant had filed the record in the office of the clerk of the circuit court, and the cause had been entered as a cause pending in that court. The motion to remand brought these facts to the attention of the circuit judge, and he decided that the cause was not one of federal jurisdiction, and that therefore the circuit court could not accept or entertain it. The fact that he made an order to c remand ’ does not show that he took jurisdiction over it. He did not send it out of the court; he said, in substance, that the law prohibited it from coming into the court. In Fiske v. Union Pacific Co., 6 Blatchf. 380, the learned judge said : ‘The first question that arises upon the motion (to remand) is whether this case is in this court—whether this court has jurisdiction of the case. This question necessarily arises and must be decided at the outset, because, if this court has no jurisdiction of the case it has no power to entertain the motion that is made—no power to make any order granting or denying the motion, and no power to make any order whatever in the case except to dismiss it for want of jurisdiction.’ Citing Mayor v. Cooper, 6 Wallace, 251.
    “ Without further discussing this branch of the case, my conclusion is that the decision of the United States circuit court upon the question of the removability of the case is final and controlling; that not being removable, the proceedings to remove it were without authority of law and wholly ineffectual to divest the superior court of jurisdiction, and that, therefore, the proceedings in the latter court, down to and including the final judgment, were regular and valid.
    “ The point was made upon the argument that, if Mrs. Campbell was not a domiciled citizen of Georgia at the time of filing her petition for alimony, then the judgment sued upon is void by reason of the fraud practiced by her upon the court in swearing that she was such domiciled citizen, and so inducing the court to take jurisdiction of the case. It is a complete answer to this objection that the jurisdiction of the superior court did not at all depend upon the question of the complainant’s domicile. It was held by the supreme court on appeal, that the superior court had jurisdiction of the subject matter of the suit under the constitution and laws of Georgia, and of the person of the defendant by force of the personal service of process upon him within the limits of Chatham county, and that it was immaterial where the complainant resided or of what state she was a citizen (Campbell v. Campbell, 67 Ga. 426).
    “The defense set forth in the seventh division of the answer in this action, presents a question which is not free from serious difficulty. The provisions of § 1747 of the Georgia Code, which authorize the filing of a petition for permanent alimony, &c., in case of a bona fide separation between husband and wife, have been already quoted. That section further provided as follows : ‘ such proceeding shall be in abeyance when a libel for divorce shall be filed, bona fide, by either party, and the judge presiding shall have made his order on the motion for alimony; and when so made such order shall be a substitute for the aforesaid decree in equity as long as said libel shall be pending and not finally disposed of on the merits.’
    . “ On May 16, 1882, this defendant brought an action in the supreme court of New York against this plaintutt, charging her with various acts of adultery, and praying for an absolute divorce. The usual order was made for the publication of the summons, and on May 20, personal service of the summons was made upon Mrs. Campbell at the city of Savannah. On May 31, she appeared in the action by attorney. These facts were presented to the Georgia court by a supplemental plea, this defendant claiming, that by force of the statute above set forth, the equity suit for alimony was in abeyance, and he prayed judgment to that effect. The order of the court was ‘ that the motion to put the case in abeyance by reason of the plea in abatement this day filed, be, and the same is hereby overruled, and that the said plea be filed as part of the record, and that the cause stand for trial.’

      “ Upon the trial, the charge of the judge was given in writing at the request of the defendant’s counsel. That portion of it which related to the New York suit, and its effect upon the suit for alimony, is as follows: ‘ The fact of the pendency of this last divorce suit, now pending in New York, is made known by a plea of the defendant, William Campbell, filed in this alimony suit and which is a part of the record. That plea contains a certified copy of the libel or petition for divorce as filed by the defendant in the New York court. It is contended by counsel for the defendant that the pendency of this divorce suit in New York should result in the abatement, or holding in abeyance, of the suit now on trial. I construe the law to be that such is the result of the suit in New York—that is—to abate this alimony suit here, provided, in the language of § 1747 of the Code, such divorce shall be bona fide. It is contended by counsel for complainant here, Mrs. Campbell, that the defendant, Mr. Campbell, has not filed and is not proceeding with the divorce suit in New York in good faith, while the contrary is contended for by the defendant. Therefore, the first question which the court leaves to your decision is this one of the bona fides of Campbell in the filing of the said divorce suit in New York. If you should find that Mr. Campbell has filed the divorce suit in New York in good faith, then that will end your labors in this case so far as the allowance of alimony is concerned, and you need investigate it no further. But if you should find that Mr. Campbell did not file the said divorce suit in good faith, then you are to proceed to find upon the further issues which involve the amount of permanent alimony, and what should be allowed to complainant and her child.’
    “And the following question was submitted in writing to the jury; £ Was or was not the divorce case of the defendant, William Campbell, against the complainant, Annie L. Campbell, now pending in the court of New York, filed in good faith by William Campbell ?’ The jury answered: £ No, it was not.’
    “It isa settled and accepted rule that the construction put by the courts of a state upon a statute of that state will be adopted and followed by the courts of other states (Hoyt v. Thompson, 3 Sand. 416 ; Hoyt v. Shelden, 3 Bosw. 267; Elmendorf v. Taylor, 19 Wheat. 152 ; Jessup v. Carnegie, 80 N. Y. 441; Leonard v. Columbia Navigation Co., 84 Ib. 48, and many cases). In 3 Bosw. 302, Woodruff, J., referring to the construction given to a New Jersey statute by the chancellor of that state, says: £1 need hardly say that the exposition of her courts is to be taken by us as conclusive. It is the voice of the state herself, speaking by the authorized expounders of her own laws, and their interpretation is, we apprehend, to be received with the same force as if that interpretation was incorporated in the statute in terms.’
    “ By the first paragraph of § 4 of the constitution of the state of Georgia it is declared that—£the superior court shall have exclusive jurisdiction in cases of divorce . . . . and in equity cases.’ And by § 3080 of the Georgia Code, all equity jurisdiction is vested in the superior courts of the several counties. We have, then,' in this case, the deliberate construction of § 1747 by a constitutional tribunal, to which its construction was expressly committed by the constitution and the statute law of the state of Georgia. That construction is that the suit for divorce in which an order for alimony shall supersede and be a substitute for a decree for permanent alimony obtained pursuant to R 1747, need not necessarily be brought in a Georgia court, but may be brought in another state or country, in any court having jurisdiction to entertain and decide it. The one condition of the statute'is that it shall be brought- bona fide. The construction seems to be a very proper one. A husband is bound in law to provide suitably for his wife. If he abandons her or drives her from him, she may use his credit to supply herself with necessaries. If, for his offenses and at her demand, the marriage relation is dissolved, his liability for her support still continues, and permanent alimony is awarded to her. In some of the states, courts of equity decree alimony in cases of abandonment though no divorce is sought, and in the absence of any statute authorizing it (Kinzey v. Kinzey, 37 Ala. 393 ; Graves v. Graves, 35 Iowa, 310; Taylor v. Taylor, 4 Desau. 165). In this state it can only be allowed in an action brought for divorce or separation (Ramsden v. Ramsden, 91 N. Y. 281). The statutes of Georgia relating to divorce make provision for the allowance to the wife of both temporary and permanent alimony (§ 1763). The plain intent of § 1747 is to compel the husband to provide for his wife from whom he has separated, so long as the state of separation continues and no attempt is made by either party to obtain a dissolution of the marriage bond. Whenever a suit for the latter purpose is instituted in good faith, and the wife has applied for and been granted alimony by the court in which that action is pending, the reason for the provision of § 1747 no longer exists. Any proceedings taken by her thereafter, if still pending, at once abate ; if they have culminated in final judgment, the judgment is at once suspended. The allowance of alimony is the essential thing ; the locality of the court which awards it in the suit for divorce is not important. The case of Hawkins v. Ragsdale (80 Ky. 353), is not an inapt citation. One Hawkins, a resident of Kentucky, was abandoned by his wife. He went to Indiana and procured a divorce, valid by the laws of that state, and died. His wife claimed dower in his Kentucky lands. The Kentucky statute declared that ‘ a divorce bars all claims to curtesy or dower.’ The wife contended that the statute applied only to divorces granted by Kentucky courts. But the court said : ‘We are of the opinion that this statute was intended to apply to all valid divorces, no matter by what sovereignty granted. In its terms it is general, referring to the fact of the severance of the bonds of matrimony and not to the tribunal by which the dissolution was declared.’
    £< At the time of the trial of the suit in Georgia, no order for alimony had been made in the action brought by Mr. Campbell in New York. No application for alimony had been made by Mrs. Campbell in that action. She had not then answered the complaint therein. That condition of things existed when the Georgia jury found that the New York action had not been brought by Mr. Campbell in good faith. But the condition of things was changed soon after the recovery of the Georgia judgment. On August 11, Mrs. Campbell answered her husband’s complaint and denied his allegations of adultery. On August 28, she served an amended answer, setting forth numerous acts of adultery by the plaintiff therein, and demanding judgment of divorce in her favor. On February 2,1883, on motion of Mrs. Campbell, an order of court was made allowing her at the rate of $50 a week for temporary alimony; and it is an admitted fact that such temporary alimony, dating from the commencement of said action for divorce, has been regularly paid by this defendant. On the day last mentioned (February 2), the1 issues in said action were referred to a referee for trial, and were pending before him and undetermined when the present action was commenced. Afterwards, but prior to the service of the defendant’s amended answer herein, the said referee decided the said issues in favor of Mrs. Campbell, and on January 10, 1885, his report thereon Was confirmed by the supreme court, and an interlocutory judgment was granted dissolving the marriage between the parties, and directing the said referee to ascertain and report what sum should be allowed to Mrs. Campbell for permanent alimony by the final judgment in the cause.

      “ The question is, was the judgment sued upon in force and enforceable against the defendant when this action was brought, or did the order made by Justice Lawrence on February 2, 1883, on the plaintiff’s motion for alimony, become 1 a substitute ’ for said judgment by force of the provision of the said § 1747 of the Georgia Code ? It is my opinion that it did. The verdict of the jury in Georgia settled it for all the purposes of that case, and of this case also, that the action in the supreme court of New York for divorce was not brought by Mr. Campbell in good faith. But when Mrs. Campbell interposed her amended answer, charging her husband with acts of adultery, and demanding judgment of absolute divorce in her favor, the case took on a different character. It was no longer under his control. He might abandon his complaint against her, but he could not prevent her from pressing her complaint against him to hearing and final judgment. He could not discontinue his action without her consent (Campbell v. Campbell, 12 Hun, 636). Certainly, since the time when Mrs. Campbell became, in effect, a plaintiff in that suit, it has been pending in good faith. She is not at liberty to deny that fact. She has accepted the alimony allowed her by the court on her application ; she has succeeded in vindicating her own character from the gross charges of infidelity made against her by her husband, and in establishing his infidelity and her right to be released from her marital obligations. She is now an applicant in the supreme court for final judgment in her favor, with provision for permanent alimony, and all this in the action brought by her husband in 1882, and which the Georgia jury chivalrously, and, I am inclined to think, correctly, believed was not instituted in good faith. Under the construction given to § 1747 by the superior court of Chatham county, it is clear, it seems to me, that if, on May 4, 1884, when this action was commenced, an attempt had been made in the state of Georgia to enforce the judgment sued upon, it would have been defeated by a presentation to the Georgia court of the facts which were given in evidence by the defendant upon the trial of this case. Any doubt about the bona fides of the Mew York action would have been removed by proof of Mrs. Campbell’s amended answer setting up her counter-claims and demanding affirmative relief. The order allowing temporary alimony would have satisfied the other condition of the statute, and the court would have recognized it as the statutory c substitute ’ for its decree. Under such circumstances, to allow the judgment to be enforced against the defendant here would be to give it here greater force and effect than it could have at home in the state where it was rendered, and in the court where it was pronounced. Any plea that would be good to a suit upon this judgment brought in Georgia is equally good here (Ferguson v. Crawford, 70 N. Y. 253).
    “I think the complaint should be dismissed.”

      Fullerton & Rushmore, attorneys, and Frank J. Dupignac and Samuel B. Adams, of counsel, for appellant,
    on the questions on the decision of which, by the referee, judgment of dismissal was entered, argued :—I. (1.) The rule invoked by the referee applies, necessarily, only to those courts whose exposition of the law are made determinative in their respective states. Four of the five cases cited by the referee show this. We have not been able to examine one of them, because it is not accessible to us. In Hoyt v. Thompson (3 Sanford), the rule is applied to those courts, the construction of which “becomes the law of the state.” This states at once the rule and its reason. In Elmendorf v. Taylor (10 Wheat.), Jesup v. Carnegie (80 N. Y.) and Leonard v. Columbia Navigation Co. (84 N. Y.) the reference is to decisions of the highest tribunals, to those only whose expositions have the force of law in their own states and come within the principle stare decisis. Hoyt v. Sheldon (3 Bosw.) is not accessible to us while preparing this brief. In Jesup v. Carnegie, the court confines the rule, in terms, to the interpretations of the “ highest tribunals.” It quotes with approval the rule adopted by the supreme court of the United States in Fairfield v. County of Gallatin (92 U. S.), and thus stated : “It is the peculiar province of the supreme court of a state to interpret its organic law, as well as its statutes, and that it is the duty as well as the pleasure of this court to follow and adopt that court’s interpretation.” In Leffingwell v. Warren (2 Black's Rep. 603) the rule is thus laid down : “The construction given to a statute of a state by the highest judicial tribunal of such state is regarded as a part of the statute, and is as binding upon the courts of the United States as the text.” There is a superior court in Georgia for each county in the state, and these courts constitute twenty-one judicial circuits (Code Georgia, § 42). While they are courts of the highest original jurisdiction, and have exclusive original cognizance of equity causes, yet the supreme court (the highest tribunal in Georgia) exercises appellate jurisdiction over these courts with reference to all questions tried by them. There is one presiding judge in each superior court. There are three judges, or justices, of the supreme court (Art. 6 Const. Georgia). Paragraph 4 of section 2 of this article (Code Georgia, § 5133) provides as follows,: “ The supreme court shall have no original jurisdiction, but shall be a court alone for the trial and correction of errors from the superior courts and from the city courts of Atlanta and Savannah, and such other like courts as may be hereafter established in other cities.” Perhaps every volume of the supreme court reports, from the first volume (1 Kelly) to the last (71 Ga.), has in it the determination of equity suits carried from the superior courts by writ of error. In 67 Ga. 423, there is the case between these very parties, which went up on a bill of exceptions to the award of temporary alimony, and involved mainly the question of the jurisdiction of Chatham superior court. There have never been but four small volumes of the decisions of the superior court judges published, namely, the reports of the two Charletons, Dudleys, and the “ Decisions,” and all of these were published before the organization of the supreme court, by an act approved December 10, 1845. (See Act in beginning 1 Kelly). Before the organization of the supreme court, the decision of one superior court judge did not bind another. The decisions of the supreme court alone bind in Georgia (Code Georgia, §§ 217 et seq.; Russell v. Potter, 59 Ga. 54; Shaw v. State, 60 Ga. 253-4; see p. 5 preface to R. M. Charlton's Reports). It would be anomalous if a decision of a Georgia court, not binding upon other Georgia courts, should be binding upon a New York court. A number of decisions of the supreme court of the United States may be found (see, for example, Lamar v. Micon, 112 U. S. 469), which follow the interpretations of the supreme court of Georgia, but none attaching this weight to the decision of a judge of a superior court. 2. This view of Judge Tompkins (the superior court judge) is opposed, in principle, to two decisions of the Georgia supreme court. In the case of Tarver v. Rankin (3 Kelly [or 3 Ga. ] 215), the court says: “It is well settled principle that the pendency of a suit in another state, or a foreign court, by the same plaintiff against the same defendant, for the same cause of action, is no stay or bar, to a new suit brought elsewhere.” The citations made by the Georgia court are all New York cases, namely, 12 Johns. 99 ; 3 Wend. 262; 1 Johns. Cases, 345. They will all be found in point. Indeed, we do not suppose this principle can be doubted. It is applied to the United States and state courts, they being treated as foreign courts with reference to each other (see 93 U. S. 548). The same principle is followed in Lightfoot v. Planter’s Bank (58 Ga. 167). Any other view than this is unsound in principle. It cannot be supposed that the legislature of Georgia, when it passed the act of 1870 (a part of which is embodied in § 1747), meant to legislate touching suits in other states and in foreign countries, and to abate Georgia suits (practically oust their own courts of jurisdiction) because of a foreign suit, when this construction was opposed to a well settled principle fully recognized by its highest tribunal. Should there be a conflict in the decisions of the highest court of the state, the United States court, or the courts of another state, would probably determine the interpretations independently of these decisions, but where this conflict exists between a lower and a higher court (the latter authorized to correct the errors of the former), the decision of the appellate court would necessarily control. While admitting that it is “a question which is not free from serious difficulty,” the referee thinks the interpretation of Judge Tompkins a proper one, and that “the case of Hawkins v. Ragsdale (80 Ky. 353) is not an inapt citation.” With deference to the referee, we submit that the citation is inapt. A Kentucky statute provided that a divorce barred all claims to dower, and the court held that this would result from a valid Indiana divorce. The reason for this Kentucky decision is to be found in the fact that the Indiana divorce was granted by a valid judgment of the Indiana court, and that this judgment, like other judgments of sister states, came within the protection of the provisions in the constitution of the United States, and the act' of Congress passed in pursuance thereof, . requiring that “ full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.” This is so even in cases of divorce where there may not have been personal service (see Hunt v. Hunt, 72 N. Y. 217 ; Kinnier v. Kinnier, 45 Ib. 535). The difference between a plea of lis pendens and one of exceptio rei judicata is substantial and obvious (Williams v. Ayrault, 31 Barb. 367). It will be perceived, too, that the money received by Mrs. Campbell was under an order of Judge Lawrence’s for temporary alimony. Under a very recent decision of the supreme court of Georgia, the payment of a judgment for either temporary or permanent alimony, obtained in Georgia, would not affect an unsettled order or judgment for the other provision. See the case of Gibson v. Patterson, decided during the present month (December, 1885), and not yet reported. The court there holds as follows: “ Temporary alimony is fixed by the judge in his discretion, find upon the passage of the order allowing it, the right to the amount allowed becomes fixed and absolute until revoked or modified by the judge, and may be enforced by a wri t of fieri facias, or by attachment for contempt ; and the failing to apply for the remedy to enforce it during the pendency of the suit cannot operate to deprive the plaintiff of the right to sue for it after the final verdict disallowing permanent alimony. The granting of temporary alimony is a question for the court; the finding or refusal of permanent alimony is for the jury.” A fortiori, we say, is it that the payment of an order for temporary, allowed by a court of another state, would not affect a final decree for permanent alimony obtained in Georgia. Outside of payment, nothing can discharge this final decree except C1 the subsequent voluntary cohabitation of the husband and wife. ” And then it is expressly provided that “ the rights of children shall not be affected thereby ” (Code Georgia, § 1751). In the suit at bar, Mrs. Campbell obtained this decree for the benefit of herself and child. Her interest is not any larger than that of the child in this decree. While an order for temporary alimony is subject to revision by the judge granting it (Code, § 1739), the final decree, based upon the verdict of a jury, is not so subject. Except that it may be set aside, so far as the wife is concerned, by subsequent voluntary cohabitation, it is like any other money judgment. Until set aside, is in full force, and it is enforceable only by execution against the property of the defendant (Code Georgia, §§ 1750, 4215, 4216 and 3099). We submit that, even if this divorce suit had been pending in Georgia, this order for temporary alimony would not have been a substitute for the final decree. The language of the statute requires that it be filed in good faith, and here the finding was that it had not been filed or brought in good faith. After this finding, Campbell could have defeated a subsequent application for alimony in a Georgia divorce suit by a defense based on this finding. We do not see how, in the event he failed to make a defense, the award of temporary alimony could be a substitute for a final decree when this award was made in a suit not filed in good faith, as the statute requires. We present this view dubitante; we confidently submit the other views—those based upon the fact that the divorce suit was in New York and the alimony paid was on account only of temporary alimony—and are clear as to their correctness. 3. The only question that remains, under this branch of the brief, is, is Mrs. Campbell concluded by this interpretation, because expressed and acted upon in a case to which she was a party ? We answer, no ; because it was not a part of the judgment, and it was not necessary (as we have already submitted) for this view to have been taken in order that the judgment be rendered, either the main judgment (or final alimony decree), or the judgment overruling the plea in abatement. The judge ought to have overruled the plea in abatement, as was insisted by Mrs. Campbell’s counsel, upon the ground that it was based upon a suit in another state. He held that he could not overrule the plea, i. e., permit the alimony cause to proceed, until the jury first found that it was not brought in good faith. The judgment, however, was in our favor, and we could not except to it, no matter how erroneously arrived at. This reason for the judgment overruling the plea forms no part of the judgment (Freeman on Judgments, § 3). An incidental decision of this sort does not enter, as an essential ingredient, into the judgment so as to work an estoppel (1 Greenleaf Ev. § 528).

      James E. Chandler, attorney, and William R. Darling, of counsel for respondent,
    on the questions on the decision of which,by the referee, judgment of dismissal was entered, argued :—I. To be made the foundation of a judgment in New York, the Georgia judgment must be still “ of efficacy ” in Georgia (Hunt v. Hunt, 72 N. Y. 234). It can have no greater force or effect in New York than it has in Georgia ; it is only entitled to “the same faith and credit ” (Suydam v. Barber, 18 N. Y. 472 ; Hampton v. M’Connell, 3 Wheat. 234 ; Kinnier v. Kinnier, 45 N. Y. 541). Any state of facts which would entitle a judgment debtor to maintain an action to set aside the original judgment, or which would be good against the enforcement of the judgment where it was rendered, or which clearly proves it to be against conscience to execute the judgment, and of which the party could not have availed himself, or which could not have been pleaded in the original action in which the judgment sued on was obtained, or which would entitle him to an injunction against its enforcement, may be set up in answer to an action on the judgment, as payment, or reversal, or any reason which would deprive the judgment “of efficacy ” in the state where it was originally rendered (2 Story’s Eq. Jur. § 887 ; Dobson v. Pierce, 12 N. Y. 165, 168 ; Ferguson v. Crawford, 70 Ib. 261; Freeman on Judgments [3 ed.] § 576). The original judgment now sued on in this action is not “of efficacy” in Georgia, for, by force of the last clause of the statute of Georgia (Code, § 1747), which alone authorizes and regulates the action, and also the effect and limitations of any decree in it, the alimony “ order ” of Judge Lawrence in the New York divorce suit subsequently granted, is expressly made a “ substitute” for it, and the life and force of the “decree” there is so taken away from it. An injunction would lie in Georgia to prevent the execution of the judgment there on proof of Judge Lawrence’s order in the New York divorce suit (Georgia Code, § 3210). The Georgia judgment would be given “greater force and effect in New York than it has in Georgia,” if, by being credited as the foundation of a judgment in New York, it is made operative, living and valid here, when by the force of the Georgia statute, which gave life to the action there, it is killed, superseded and nullified there by the very “ substitute ” provided and directed to produce that effect by , that statute. If dead there, why should it be allowed to be enforced here ? The whole action in Georgia is the creature of §§ 1744-1747 of the Georgia Code. Neither the action nor the decree in it can co-exist with an action for divorce begun bona ficle in any court having jurisdiction by “either party,” and this statute, which gives alimony without a divorce suit, when at common law it was an incident of a divorce suit only (Bishop on Marriage and Divorce, [4 ed.) §§ 352, &c., 374, &c.), is in derogation of the common law, and so to be strictly construed. Tlie Georgia statute is to be 'considered and construed in this action “in accordance with the intent and purpose it was designed to accomplish in its own state ” (Moore v. Hegeman, 92 N. Y. 527). The whole Georgia statute on the subject of alimony being considered together (§§ 1736-1752), discloses two separate and independent schemes which cannot co-exist, and are not intended to do so ; one scheme (connected with the divorce action) in which alimony is an incident, and in which temporary alimony is obtained by “ order ” or “ motion or petition ” (§ 1737), and which is comprised between § 1736 and sub. 1 of § 1744; the other is alimony without a divorce; comprised between sub. 2 of § 1744 and § 1747 (which was this Georgia action). This last scheme is clearly subsidiary in importance, intent and purpose to the other ; and the intent of § 1747 is very clearly expressed from first to last that any decree under this section (1747) shall be overcome by any alimony “order” or provision in a divorce suit. The clear principle of the latter scheme and its intent by that provision, was to protect a husband from the very results sought in this action,—i. e., the payment of double alimony under the same marriage contract after divorce proceedings had been begun in a competent court, with the usual incident of a temporary alimony order. That statute is mandatory in its terms, and expressly provides that when a bona fide divorce suit is begun by “either party,” and the judge shall have made his “ order on the motion” for alimony (meaning, of course, temporary alimony, which alone is given on “motion” by an “order”), such order “ shall be a substitute” for the aforesaid “decree” (meaning, of course, the final decree after verdict of the jury fixing the amount previously spoken of by the same section). Before this statutory suit is ended, a bona fide divorce suit by either party puts it in abeyance ; after this statutory suit has passed to final decree the “order” for temporary alimony in a divorce suit is “substituted” for the “decree” in the statutory suit; and when the divorce suit itself ripens into a final decree, which provides permanent alimony, such decree supersedes both the “order” and this peculiar statutory decree under § 1747. This section (1747) does not limit the forum of the divorce suit mentioned in it, whose “order ” is to stand as a “ substitute;” it does not say a divorce suit begun only in Georgia ; it clearly means any divorce suit begun anywhere, in any court of Georgia, or of any other state competent to entertain the action and make a binding decree in it. So Judge Tompkins held in his charge to the jury in the Georgia suit, and his judicial construction of a domestic statute prevails for us (Johnson v. Columbia Steam Nav. Co., 84 N. Y. 48 ; Jessup v. Carnegie, 80 Ib. 441; Hunt v. Hunt, 72 Ib. 218, 236). The constitutional obligations of “full faith and credit to judicial acts and proceedings of every state in every other” are reciprocal. The New York divorce suit, and orders and proceedings in it, are entitled to the same faith, effect and credit in Georgia as here, and no one doubts that the New York court had full jurisdiction of the divorce suit, for Mr. Campbell brought it, and he lived here, and Mrs. Campbell not only appeared in it, but herself sought in it an affirmative judgment of divorce in her favor, with alimony from the beginning of the divorce suit in New York (Kinnier v. Kinnier, 45 N. Y. 541 Peters v. Peters, 41 Ga. Rep. 250). It follows, then, of necessity, that if by force of the Georgia statute (§ 1747) the “ order ” of a competent court of that state for temporary alimony in a bona fide divorce suit begun there, would be a “substitute” for the Georgia “decree” in the action under that statute, then the “order” of Judge Lawrence, for temporary alimony in the New York divorce suit (that court being competent to entertain it), must be entitled to equal force and effect in Georgia, and upon the Georgia final decree under § 1747, sued on in, this action, and that this judgment which is so dead and superseded by its statutory “substitute” is without “ efficacy ” there, and cannot be made a living force here. It may be said that the statute requires an “order” in a bona fide divorce suit, and that the Georgia jury found against Mr. Campbell’s good faith, and that he is bound by the finding. The clear and complete reply is, that the order of Judge Lawrence in the New York suit was not made till long after the Georgia trial and judgment. That trial was July 17, 1882 ; the decree was July 19, 1882. It was not-until August 28, 1882, that Mrs. Campbell put in her amended and recriminatory answer, and herself sought divorce in the New York suit; and it,was not till February 2, 1883, that she sought and obtained Judge Lawrence’s temporary alimony order in it. From August 28, 1882, therefore, the New York divorce suit was hers ; she had become an actor in it. Mr. Campbell could not have discontinued it (Campbell v. Campbell, 12 Hun, 636); the alimony order was made in it on her motion, and her own good faith in bring her own counter-claim for divorce in the suit is not open to question by her. It is presumed against her, as being her own suit, brought in good faith ; and as long as that suit is pending (and it is still pending, not having reached final judgment), this alimony order in it stands as a substitute for that whole Georgia decree, unperformed as it is. Nor can it be said that the question was or might have been litigated in the Georgia action ; for, this Georgia final decree was entered July 19, 1882, and the temporary alimony order of Judge Lawrence in the New York divorce suit was not obtained till February 2, 1883—after the Georgia suit was finished by this judgment. The New York divorce suit was still pending when this action began, and it is now pending before the referee, not having passed to final decree. This reasoning, and this alone, fulfills the Georgia statute (§ 1747), in its terms and intent, and harmonizes it with the general body of the law, and with common right, and avoids the shocking result of making a husband pay double alimony under the same marriage contract. It is confidently submitted that its necessary result is fatal to the plaintiff in this action, in this state, on the Georgia judgment.
   Per Curiam.

Judgment affirmed on the opinion of the referee, with the costs.
      Note.—Various propositions other than the decisive one which is head-noted were discussed in the opinion of the referee, and by him decided in plaintiff’s favor; but the final decision being in favor of defendant for a dismissal of the complaint, and the appeal being by plaintiff from the judgment of dismissal, and the judgment having been affirmed on the referee’s opinion, only those propositions on which the referee based his opinion for such dismissal are sanctioned and concurred in by the affirmance of the judgment. Inasmuch, however, as these other propositions, being as to effect of the filing in the state court a petition for a removal to the United States circuit court, as to the affidavit and bond prescribed by the acts of Congress, and as to the effect, in a proceeding by a wife against her husband for provision for herself and her minor children, under the Georgia Code, of the plaintiff swearing she was a domiciled citizen in that state when in fact she was not, are important and interesting, have been exhaustively argued, and the points of counsel (which can be found in the library of the court), discussed at length in the well considered opinion of the referee, and as the case is unique in its character, the reporters have deemed it advisable to report the opinion at large, with references in the index to the points decided by the referee.


source: Caselaw Access Project

license: Public Domain

text:
    ELIZA A. THOMAS, as Executrix, &c., v. MORRIS WOODRUFF, as Executor, &c.

      Value, when testimony as to incompetent—Memoranda inadmissible.

    Testimony as to value of articles given by a witness whose knowledge is derived solely from the bills therefor, made out by the vendors of the articles receipted, is incompetent. A fortiori, a list of such articles, with values attached, made out by such witness from recollection of the contents of such receipted bills (the articles having been purchased about eleven years before), the bills having been destroyed and two years having elapsed since the witness saw them, is inadmissible either as an extension of the oral testimony of the witness or otherwise.
    Before Sedgwick, Oh. J., and Freedman, J.

      Decided, May 6, 1886.
    Exceptions ordered to be heard at general term in the first instance.

      The facts sufficiently appear in the opinion.

      Cochran & Clark, attorneys, and W. Bourke Cochran, of counsel for plaintiff,
    on the questions considered in the opinion, argued :—There was sufficient proof of the value to justify the verdict. The value of an article which has no market value may be ascertained by reference to the probabilities of the case, founded on proof of the facts which, in ordinary transactions of business, would affect the mind of a dealer in similar articles in determining the price to be asked or given, and the cost of the article to the party claiming its value, bears upon this question (Strum v. Williams, 38 Super. Ct. 325). In an action for trover and conversion, it is proper to allow evidence to go to the jury showing what the converted articles' cost (Wells v. Kelsey, 37 N. Y. 143 ; Campbell v. Woodworth, 20 Ib. 499 ; Beach v. Raritan & Delaware Bay R. R. Co., 37 Ib. 457 ; Gill v. McNamee, 42 Id. 44 ; Gunn v. Borghart, 47 Super. Ct. 371). The testimony given by the plaintiff was the best evidence that she could procure under the circumstances of the case, and such evidence has been upheld and approved in Jones v. Morgan (24 Hun, 373). The bills or other memoranda which passed between the parties to the purchase at the time of the sale are part of the res gestee of the purchase, and were, therefore, competent evidence to go to the jury (Driggs v. Bliss, 3 Week. Dig. 435 ; Crook v. Harper, 8 Daly, 53 ; Howe v. Brundage, 1 T. & C. 429).

      Anderson & Howland, attorneys, and Henry E. How-land, of counsel for defendant,
    on the questions considered in the opinion, argued: argued: I. Plaintiff had no personal knowledge of the value of the articles!
    II. The list was not made at or near the time of the transaction.
    III. The plaintiff’s list of furniture lacks the two conditions which are indispensable to make it admissible as a memorandum ; that it should have been made at or near the time of the transaction, and by a person having knowledge of the facts noted in it. In all cases of the admission of such memoranda it will be found, that the existence of these essential conditions has been shown or assumed (Howard v. McDonough, 77 N. Y. 592; Eberhard v. Schuster, 10 Abb. N. C. 374; 1 Greenleaf Ev. § 438; Maxwell v. Wilkinson, 113 U. S. 658; Chaffee v. U. S., 18 Wall. 541; Stuart v. Binnes, 7 Bosw. 195).
   Per Curiam.

This action was brought by the plaintiff as executrix of the last will and testament of Griffith Thomas, her deceased husband, for an alleged conversion by the sheriff of personal property belonging to her husband’s estate. The present defendant is the executor of a deceased indemnitor of the sheriff. The property in question which consisted of household furniture, &c., was seized by the sheriff and sold on executions to satisfy individual judgments against the plaintiff. The jury having found for the plaintiff, the exceptions taken by the defendant were ordered to be heard at general term in the first instance.

If it were necessary to determine whether under the allegations of the answer proof of a devastavit was admissible at the trial against plaintiffs’ objection, the determination of the question would be attended by difficulties. But we do not feel called upon to make the determination at the present time, because there are some exceptions upon another point which are fatal to the verdict under all circumstances.

The plaintiff was allowed to testify from a long list of articles, with values set opposite, which she alleged to be a statement of the articles sold by the sheriff. It appeared from her own testimony that this list was made up by her more than two years after the articles were sold by the sheriff, and more than eleven years after they had been bought; that she herself had not assisted in the purchase ; that the purchasing had been done by her husband ; that, while he lived, he kept all the bills and receipts for said articles at his office ; that after his death the bills and receipts were brought to her; that at that time nine years had elapsed since the purchase of the goods ; that immediately after the sheriff’s sale the bills and receipts were sent to Morrell’s warehouse, where they were subsequently burned up ; that she did not see them from the time they were so sent to the time they were burned ; that about two years after they had been so sent, and two years after the sheriff’s sale, she made up the list at her present residence for the purposes of this suit; and that, in making it up, she depended upon her memory.

It thus affirmatively appeared from her own testimony that she never had any knowledge whatever of the value of these articles, and that her entire testimony as to such value was hearsay. It therefore was clearly incompetent. But the learned judge who presided at the trial, admitted her testimony as to such value, admitted the list itself as an extension of her testimony, and denied defendant’s motion to strike it out, to all of which rulings proper exceptions were taken.

As it is apparent from the whole case that these erroneous rulings must have greatly prejudiced defendant’s position, the exceptions taken by the defendant should be sustained, the verdict set aside, and anew trial ordered with costs to the defendant to abide the event.