GREY, V. C.

Bill by Alice Emma Huettinger against John William Huettinger. Preliminary injunction issued.

Gilbert & Atkinson, for complainant.

W. E. Dobbins, for defendant.

GREY, V. C. This bill is filed by a wife, seeking to restrain her husband from prosecuting a suit for divorce, which, she alleges, he has fraudulently begun in McCook county, S. D., in the circuit court of the Second judicial district of that state. The panties were married and resided in Beverly, N. J. The complainant had been ill in bed at the house of her parents in Chambersburg, Pa., for some eight months preceding June, 1898, and in that month wrote to her husband that she expected to come back to Beverly in the fall. He replied: "Do not return on my account, because I will never live with you again. I have endured the nunnery course long enough, and I want an absolute divorce, and nothing else,"—and asked the wife to consent to a divorce. In August, 1898, he told his son that he intended to go to South Dakota, and stay there until spring, and was then going down to Mexico. In October, 1898, the wife had regained her health, and returned to Beverly; but her husband had left. In February, 1899, the husband wrote the wife from Sioux Falls, S. D., "Recall the letter that I wrote you when you were In Chambersburg, wherein I said that I would end the nunnery business for good, i. e. by an absolute divorce," and also stating, "I am a citizen of South Dakota, and I propose to apply to the court here for a divorce." On March 13, 1899, the husband began in South Dakota the proceedings for divorce by a summons and complaint, requiring an answer from the wife within 30 days from the service of summons. The complaint is dated March 13, 1899, and alleges that for more than six months immediately preceding the commencement of the action the husband was, and now is, a resident of the state of South Dakota, in good faith; that, for more than a year preceding the commencement of the action, the wife willfully, and without justifiable cause or provocation, deserted and abandoned the husband, and still deserts and abandons him, and during all that time had continued to live separate and apart from him, against his will and without his consent; that, for more than 12 years last past, the wife willfully, and without cause, had refused him reasonable matrimonial intercourse. The husband verified this complaint by his oath dated March 13, 1899. On the same day he made oath to an affidavit of publication, stating that his wife was a resident of Beverly, N. J., praying an order for service of summons by publication. On March 18, 1899, an order was made directing that service of summons be made by publication in a South Dakota newspaper, and by mailing of a copy of the summons and complaint affidavit and of the order to his wife at Beverly.

The wife alleges that the sole object of the husband's going to South Dakota was to obtain an apparent residence there, to enablehim to Institute divorce proceedings, and she insists that his representation of bona fide residence there is false, and a fraud upon the Dakota court and upon her, because he is, in fact, a resident of New Jersey. The proofs show that, preceding his departure for South Dakota, and as explanatory of his purpose in going there, the husband declared that he was going to Dakota to get a divorce. His denials are unsubstantial, and for the most part declarations of intention, presently made, while anxiety to escape his matrimonial bonds is hot upon him, and his fear of delay or restraint is extreme. They do not accord with his free statements of his purpose before he left this state, nor with the instant commencement and energetic prosecution of the Dakota suit in fulfillment of these previous statements. He does not appear to have had any business call to that state, nor to have arranged or sought to make any permanent business relations there. He swears that he sought for and obtained a teacher's certificate in South Dakota, which is valid for two years; but the evidence that he ever actually engaged in that, or any other business there, or that he intended to do so, is so meager and unsatisfactory, in view of his explicit declarations in his letters and statements indicating a purely temporary stay, for the sole purpose of divorce, that it carries little conviction.

The court of errors in Magowan v. Magowan, 42 Atl. 331, declared that a bona fide residence in a state is a jurisdictional fact, which must necessarily exist and precede a consideration of the merits of a divorce case; that, while the determination of that question by the court assuming jurisdiction is final, not only in that state, but everywhere else, yet, when that determination had been obtained by fraud and false statements, it is without extraterritorial effect, and may be treated as void in the courts of other states. It is to prevent the success of an attempt to perpetrate such a fraud that the complainant now invokes the aid of this court. In Kempson v. Kempson (N. J. Ch.) 43 Atl. 97, Vice Chancellor Pitney granted a preliminary injunction restraining the further prosecution of a divorce suit in North Dakota, where it was shown, as in this case, that the assertion of residence there was a mere pretense to give color to and support the suit for divorce. A preliminary injunction should issue.