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69 id. 655; 2 Bishop on Marriage, Div. and Sep. secs. 188, 1591, 565; Bank of North America v. Wheeler, 73 Am. Dec. 688, note; 1 Ency. of Pl. and Pr. 764.

The result would therefore appear to be, that as a matter of strict legal right, no deception being practiced upon the court and jurisdiction assumed, appellant would have had the right to proceed with her suit in South Dakota and to make her defense in this case at the same time. She did not commence the suit in Illinois, nor did she ask for an affirmative decree of divorce by way of cross-bill. She surely had the right to defend against this suit and to defend her character against the severe charges made against her. She had also the clear right to defend her property rights attacked by the bill. It was, however, the jurisdiction in which she had passed her married life with appellee, and where the alleged misconduct of appellee, set up in her answer by way of recrimination and in her complaint as grounds for divorce, took place. Still, it cannot be said that the South Dakota decree could be denied validity on this ground. At the same time and by the same legal principles appellee could not have appeared and successfully pleaded in the South Dakota court the pendency of the prior suit in this jurisdiction in bar or in abatement of her suit there, and it could not well be contended that any duty was imposed on him to enter his appearance in a foreign court to either contest the same issue which was already pending in the court of his own State, in which both parties had appeared, or to endeavor to obtain a stay of proceedings in such foreign suit until the prior suit was determined. He had not been served in South Dakota, and he was not bound to appear there at the risk of suffering a decree good not only as a dissolution of the marriage, but in personam also. It has, however, been held that in such a case the court in the State where the second suit is brought may, in its discretion, stay the proceedings there pending until the prior suit is determined.

(1 Ency. of Pl. and Pr. 770, and cases cited in note. See, also, 23 Am. & Eng. Ency. of Law, 523.) It is also true that in actions strictly in rem, where one court has obtained possession of the res sought to be reached, the process of other courts must pause until that possession be terminated. (Allen v. Supervisors, 11 Wall. 136.) While this rule is not strictly applicable to divorce cases, yet, such cases being regarded as to some extent in rem, an additional reason appears why, in such cases, the court in which the second suit is brought would stay the proceedings unless the rights of citizens of its own jurisdiction would be thereby prejudiced. And this would seem to be the only way to avoid a serious conflict of jurisdiction in such a case, and would evince such a spirit of forbearance and respect for the authority of the courts of a sister State whose jurisdiction had first attached, as might well be expected would be shown by the courts of the several States in the administration of justice under circumstances of so complicated a character. But the circuit court of South Dakota was not afforded any opportunity for the exercise of this discretion. By the concealment of appellant that court had no knowledge that. the very questions it was called upon to try in an ex parte proceeding were then at issue and pending in a prior suit in the State where both parties had been domiciled and where both had appeared. More than this, it was denied the knowledge that the very facts upon which its jurisdiction depended were then at issue in such prior suit.

While the question is one not free from difficulty, we are of the opinion that appellant failed to act in good faith to the court in which her suit was brought in South Dakota, that she was guilty of fraud upon the court and upon the public in obtaining her decree, and that it is therefore void. It would certainly be an anomaly in legal procedure if a party to a divorce suit pending here, and in view of all the facts disclosed by this record, could, in an ex parte proceeding commenced later in time, obtain

a decree in another State and make use of it to oust the jurisdiction of the courts of this State, or, rather, to bar their further proceedings in the cause. We do not say that such a result might in no case be reached, for it must be admitted that if, after such disclosure to the court of South Dakota as we hold it was the duty of appellant to have made, that court had nevertheless proceeded with the cause to final decree, as it had the power to do if she had been a bona fide resident there, it might well be that such final decree could have been pleaded as a bar to the further maintenance of this suit. But that point has not been reached in this case, and in no other of a like character to which our attention has been called. As said by Mr. Justice DICKEY in Mail v. Maxwell, 107 Ill. 554 (at p. 561): "The exercise of sound discretion by the respective courts in our complicated system of government, and the observance by them of a few simple and just rules, has been such that no serious difficulty has been encountered from such a cause,"—that is, from a conflict of jurisdiction.

Counsel cite and press upon our attention the case of Jones v. Jones, 108 N. Y. 415, as a controlling one in support of the alleged bar of the foreign decree. But in that case the husband appeared in the later suit commenced by the wife in Texas, and was defeated in that suit on the merits as well as on the question of jurisdiction, and the Court of Appeals of New York rightly held that the Texas decree was a bar to the further maintenance of the suit which the husband had previously brought in New York. We are unable to see how that case has any important bearing on the question here under consideration. The point here is the lack of good faith of appellant to the court in South Dakota, in which she was proceeding for a divorce against her non-resident husband upon constructive service and without his appearance, in concealing from that court the pendency in Illinois of this prior suit, in which she had appeared and in which the same facts

were at issue. In the New York case the husband, after he had brought his suit in New York, appeared in the Texas court in the suit there later brought by his wife, and litigated with her her right to a divorce, and was defeated. Had Dunham gone to South Dakota and there contested with his wife her. right to a divorce under the laws of that State, it is difficult to see how, in the absence of collusion, the question of her good faith to the court, in the form in which it is here presented, could have arisen at all.

Turner v. Turner, 44 Ala. 437, is a case having some similarity to the one at bar in respect to the fact that there were two suits pending in different States between the parties at the same time, and that the decree rendered in the one last commenced on substituted service was set up as a bar to the other, but the defense was overruled. The court among other things said: "The Indiana divorce in favor of the husband, Matthew Turner, against his wife, the complainant, may protect him on a charge of bigamy should he marry again in this State. (Thompson v. State, 28 Ala. 1.) But without stopping to inquire whether it was obtained by fraud, and therefore is vicious on that account, or not, it certainly cannot affect the rights of the complainant except her right in the husband as a husband. If it is valid it unmarries him and sets him free from his marital vows to her. He is no longer the complainant's husband." But the court held that it did not settle her right to alimony, nor to dower, nor to her statutory right of distribution should she survive him, nor to any other pecuniary claim against him; that it was the duty of the State to protect its own citizens within its own borders, and that no obligation of comity is paramount to this duty; and the decree of divorce and for alimony was affirmed. In this case, and in Stilphen v. Stilphen, 58 Me. 508, (4 Am. Rep. 305,) it seems that in order to preserve and enforce the wife's property rights under the local statutes it was considered that the

court had the power to grant the decree, and which in the latter case was regarded as ancillary.

But whether we are correct or not in holding the South Dakota decree void for fraud, we cannot hold that the decree of the court below should be reversed on account of the alleged erroneous ruling in sustaining the demurrer to the cross-bill, for the reason that, in view of the other issues which were tried and found in favor of appellee, such finding, if correct upon the evidence, rendered the error a harmless one. We have already shown that the facts and circumstances of appellant's alleged removal to South Dakota were put in issue by the bill, answer and replication. The admission of the truth of the allegations of the cross-bill did not admit them as incontrovertible facts in the case incapable of being contradicted on any other issue, but only for the purposes of the demurrer in obtaining an adjudication as to the legal sufficiency of the cross-bill; (Kankakee and Seneca Railroad Co. v. Horan, 131 Ill. 288; 1 Mod. Eq. Pr. sec. 228;) and had there been no other issue under which the same evidence might have been heard, of the matters set up in the crossbill, and the evidence had been excluded, then the erroneous ruling in sustaining the demurrer, if any, would have been material. But the court admitted in evidence the record of the Dakota suit and decree on the hearing, -for another purpose, it is true, but admitted it nevertheless, and it is before us in the certificate of evidence, and all the facts and circumstances attending the sup posed removal of appellant to and location, in the State of South Dakota, and her acts and doings before, at and after such alleged change of residence were before the court and are now before this court; and it is perfectly clear, from the evidence, that the sole purpose of appellant in going to South Dakota was to obtain a divorce from appellee in the shortest possible time and with the least possible trouble and publicity, and that she had no intention of permanently residing there. The question of

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