No appeal lies to this Court from a decree of the supreme court
of a territory granting or refusing a divorce.
From a decree of the supreme court of a territory dismissing the
suit of a husband for a divorce and awarding to the wife alimony
and counsel fees, amounting in all to more than the sum of $5,000,
an appeal lies to this Court so far as regards the sum of
money.
The disclaimer in
Barber v.
Barber, 21 How. 582,
62 U. S. 584,
of
"any jurisdiction in the courts of the United States upon the
subject of divorce, or for the allowance of alimony, either as an
original proceeding in chancery or as an incident to a divorce
a vinculo, or to one from bed and board,"
has no application to the jurisdiction of the courts of a
territory, or to the appellate jurisdiction of this Court over
those courts.
The statutes of the Territory of Arizona authorizing any party
in whose favor a judgment for a sum of money has been rendered in a
district court of the territory to file in that court or in the
supreme court of the territory on appeal a remittitur or release of
part of the judgment are applicable to a wife in whose favor a
decree for alimony and counsel fees has been made in a suit brought
against her by her husband for a divorce, and such a release by her
attorneys of record of part of the sum awarded by the district
court, if filed and recorded in the supreme court of the territory,
while the case is there pending on appeal, is such a substantial
and sufficient compliance with the statute (although the release
itself is not attested by the clerk and under his seal) as to make
it the duty of the court to give effect to the release.
When a party who has recovered judgment in a district court of a
territory for a sum of money sufficient to sustain the appellate
jurisdiction of this Court from the supreme court of the territory,
exercises a right given by the territorial statutes of remitting,
by a release filed and recorded in that court while the case is
there pending on appeal, so much of the judgment as will reduce it
below the jurisdictional amount, and that court ignores the release
and affirms the judgment of the district court, this Court, on
appeal by the other party, will modify the judgment of the supreme
court of the territory so as to stand as a judgment for the reduced
sum, and will affirm the judgment as so modified without
considering the merits of the case.
The suit was commenced by a complaint filed October 6, 1894, in
a district court of the Territory of Arizona by a husband
Page 175 U. S. 163
against his wife for a divorce from the bond of matrimony for
the cause of desertion on and ever since December 18, 1893. The
wife's answer denied the desertion alleged and set up desertion by
the husband on and ever since December 14, 1893, as well as cruelty
on his part.
The Revised Statutes of 1887 of the Territory of Arizona, tit.
34, c. 4, vest the jurisdiction of suits for divorce in the
district courts of the territory, and the only provisions thereof
touching alimony, counsel fees, or costs are copied in the margin.
[
Footnote 1]
Pending this suit, the wife, by her counsel, moved the court to
order the husband to pay her the sum of $5,000 as provisional
alimony to enable her to employ counsel and defend the suit. The
court made no order on the motion until its final decision of the
cause upon its merits, and then, on a review of the whole evidence
(which had been taken by a referee and made part of the record),
held that the suit could not be maintained, overruled a motion for
a new trial, allowed a bill of exceptions, and by a decree entered
June 13, 1896, adjudged that the complaint be dismissed and the
issues therein decided in favor of the defendant, and that she
recover $750 counsel fees, and $150 a month for her maintenance
from December 14, 1893, amounting in all to the sum of $5,250,
exclusive of costs. On June 30, 1896, the husband appealed to the
supreme court of the territory, and gave bond to prosecute his
appeal.
Page 175 U. S. 164
The record of the Supreme Court of Arizona (a copy of which,
duly certified by its clerk, was transmitted to this Court) stated
that, on the 11th and 13th days of January, 1897, respectively,
each described as "being one of the judicial days of the January
term, 1897, of the Supreme Court of Arizona," orders were made
fixing the times of filing briefs. The record then stated that,
"on the 26th day of January, 1897, a release of part of the
judgment of the lower court for alimony was filed in said court in
said cause by said appellee,"
and set forth a copy thereof, by which it appeared to have been
signed by her attorneys of record, with no other attestation than
this blank form: "Attest, _____ _____, Clerk of the Supreme Court
of Arizona." And the release was endorsed by the clerk as filed on
that day. By the release so filed and recorded, the wife
"remits, from the judgment for alimony and counsel fees
recovered by the said defendant and appellee against the plaintiff
and appellant herein in this cause in the district court, all of
the said judgment for alimony and counsel fees in excess of the sum
of $5,000, to-wit, the sum of $250."
The provisions of the Revised Statutes of Arizona of 1887 on the
subject of the right of a party to remit part of the sum awarded by
verdict or judgment are copied in the margin. [
Footnote 2]
Page 175 U. S. 165
On January 30, 1897, the case was submitted on briefs to the
supreme court of the territory, and on February 23, 1897, that
court affirmed the judgment of the district court for $5,250. The
husband took an appeal to this Court, which has been prosecuted by
his executors since his death, and the whole case was submitted to
this Court on briefs.
The appellee moved to dismiss the appeal for want of
jurisdiction
"because the judgment or decree, from which said appeal purports
to have been taken, is the judgment or decree of the supreme court
of one of the territories of the United States, to-wit, the Supreme
Court of the Territory of Arizona, affirming a judgment or decree
of a district court of said territory dismissing a bill for divorce
brought by said appellant against said appellee in said district
court and awarding appellee alimony and counsel fees
pendente
lite, and for the further reason that the matter in dispute
does not exceed the sum of $5,000 exclusive of costs."
MR. JUSTICE GRAY, after stating the case as above, delivered the
opinion of the Court.
The motion to dismiss this appeal for want of jurisdiction is
made upon two grounds: 1st, that the decree appealed from is a
decree dismissing a suit for divorce, and awarding to the appellee
alimony and counsel fees pending that suit; 2d, that the matter in
dispute does not exceed the sum of $5,000 exclusive of costs.
The revised Statutes of the United States conferred on this
Court jurisdiction, upon writ of error or appeal, to review and
Page 175 U. S. 166
reverse or affirm the final judgments and decrees of the Supreme
Court of any territory except Washington
"in cases where the value of the matter in dispute [or as
elsewhere described, 'where the value of the property or the amount
in controversy'], to be ascertained by the oath of either party, or
of other competent witnesses, exceeds one thousand dollars,"
and, in the Territory of Washington, two thousand dollars, and
also in all cases in any territory, arising under the Constitution
and laws of the United States, or in which the Constitution or a
statute or treaty of the United States is brought in question, and
in all cases upon writs of habeas corpus involving the question of
personal freedom. Rev.Stat. §§ 702, 1909-1911. By the Act
of March 3, 1885, c. 355, except in cases in which is involved the
validity of a patent or a copyright or in which is drawn in
question the validity of a treaty or statute of or an authority
exercised under the United States,
"no appeal or writ of error shall hereafter be allowed from any
judgment or decree in any suit at law or in equity in the Supreme
Court of the District of Columbia or in the Supreme Court of any of
the territories of the United States unless the matter in dispute,
exclusive of costs, shall exceed the sum of five thousand
dollars."
23 Stat. 443. This act has not repealed the provision of the
Revised Statutes giving an appeal from the supreme court of a
territory in cases of habeas corpus.
Gonzales v.
Cunningham, 164 U. S. 612. The
Act of March 3, 1891, c. 517, transferring to the circuit courts of
appeals the appellate jurisdiction from the supreme courts of the
territories in cases founded on diversity of citizenship or arising
under the patent, revenue, or criminal laws, or in admiralty has
not otherwise affected the appellate jurisdiction of this Court
from the territorial courts. 26 Stat. 828, 830;
Shute v.
Keyser, 149 U. S. 649;
Aztec Mining Co. v. Ripley, 151 U. S.
79.
Under the existing acts of Congress, therefore (except in the
cases so transferred to the circuit courts of appeals and in cases
of habeas corpus, cases involving the validity of a copyright, and
cases depending upon the Constitution or a statute or treaty of the
United States -- none of which classes
Page 175 U. S. 167
includes the case at bar), the appellate jurisdiction of this
Court to review and reverse or affirm the final judgments and
decrees of the supreme court of a territory includes those cases,
and those cases only at law or in equity, in which "the matter in
dispute, exclusive of costs, shall exceed the sum of five thousand
dollars."
In order to sustain the appellate jurisdiction of this Court
under such an enactment, the matter in dispute must have been money
or something the value of which can be estimated in money.
Kurtz v. Moffitt, 115 U. S. 487,
115 U. S.
495-496, and cases there cited;
Durham v.
Seymour, 161 U. S. 235;
Perrine v. Slack, 164 U. S. 452.
In support of the motion to dismiss this appeal because the
decree below concerned divorce and alimony only, the appellee
relied on
Barber v.
Barber, 21 How. 582. In that case, a majority of
this Court held that a wife who had obtained against her husband in
the courts of the state of their domicil a decree divorcing them
from bed and board and awarding alimony to her might sue the
husband for such alimony in a circuit court of the United States
held in a state in which he had since become domiciled. Mr. Justice
Wayne, in delivering judgment, said:
"We disclaim altogether any jurisdiction in the courts of the
United States upon the subject of divorce or for the allowance of
alimony, either as an original proceeding in chancery or as an
incident to divorce
a vinculo or to one from bed and
board."
21 How.
62 U. S. 584.
And from that proposition there was no dissent. It may therefore be
assumed as indubitable that the circuit courts of the United States
have no jurisdiction either of suits for divorce or of claims for
alimony, whether made in a suit for divorce or by an original
proceeding in equity, before a decree for such alimony in a state
court. Within the states of the Union, the whole subject of the
domestic relations of husband and wife, parent and child, belongs
to the laws of the state, and not to the laws of the United States.
In re Burrus, 136 U. S. 586,
136 U. S.
593-594.
But those considerations have no application to the jurisdiction
of the courts of a territory or to the appellate jurisdiction
Page 175 U. S. 168
of this Court over those courts. In the territories of the
United States, Congress has the entire dominion and sovereignty,
national and local, federal and state, and has full legislative
power over all subjects upon which the legislature of a state might
legislate within the state, and may, at its discretion, entrust
that power to the legislative assembly of a territory.
Shively
v. Bowlby, 152 U. S. 1,
152 U. S. 48, and
cases cited;
Utter v. Franklin, 172 U.
S. 416,
172 U. S. 423.
In the exercise of this power, Congress has enacted that (with
certain restrictions not affecting this case)
"the legislative power of every territory shall extend to all
rightful subjects of legislation not inconsistent with the
Constitution and laws of the United States."
Rev.Stat. § 1851; Act of July 30, 1886, c. 818, 24 Stat.
170. The power so conferred upon a territorial assembly covers the
domestic relations, the settlement of estates, and all other
matters which, within the limits of a state, are regulated by the
laws of the state only.
Cope v. Cope, 137 U.
S. 682,
137 U. S.
684.
By the territorial statutes of Arizona, the original
jurisdiction of suits for divorce is vested in the district courts
of the territory, and their final judgments in such suits, as in
other civil cases, may be reviewed by the supreme court of the
territory on writ of error or appeal. Ariz.Rev.Stat. of 1887, tit.
34, c. 4; tit. 15, c. 20.
As already observed, the motion to dismiss in the case at bar is
made upon the two-fold ground that the decree appealed from is one
concerning divorce and alimony only and that it is for no more than
$5,000.
The decree of the supreme court of the territory in favor of the
wife includes the dismissal of the husband's suit for a divorce
from the bond of matrimony, and the award to the wife, upon her
motion, of the sum of $5,250 for alimony and counsel fees.
So far as the question of divorce was concerned, the matter in
controversy was the continuance or the dissolution of the status or
relation of marriage between the parties, and the decree cannot be
reviewed on this appeal, both because that was a matter the value
of which could not be estimated in
Page 175 U. S. 169
money and because the refusal of the divorce involved no matter
of law, but mere questions of fact, depending on the evidence, and
which this Court is not authorized to reexamine.
Young v.
Amy, 171 U. S. 179.
The decree for alimony and counsel fees, although in one sense
an incident to the suit for divorce, is a distinct and severable
final judgment in favor of the defendant for a sum of money of a
sufficient jurisdictional amount, and is therefore good ground of
appeal, for the same reason that a judgment for or against the
defendant upon a counterclaim of like amount would support the
appellate jurisdiction.
Dushane v. Benedict, 120 U.
S. 630,
120 U. S. 636;
Stuart v. Boulware, 133 U. S. 78;
Block v. Darling, 140 U. S. 234.
It was argued for the appellee that the decree of the supreme
court of the territory in her favor for alimony and counsel fees
was not really for more than the sum of $5,000 because, before that
decree was rendered, or the case submitted to that court, she had
filed a remittitur of the excess above that sum, but its final
judgment, as actually entered, having been for the sum of $5,250,
the question whether the remittitur was erroneously disregarded
touched the question what that court should have done, and not what
it actually did -- in other words, a question of error, and not of
jurisdiction.
Had there been no local statute on the subject of remittitur, it
would have been within the discretion of the court, before
rendering judgment, to allow a remittitur reducing the sum
recovered below the amount required to sustain an appeal, and if
the court had done so and had rendered judgment for the reduced
sum, the appeal must have been dismissed.
Alabama Ins. Co. v.
Nichols, 109 U. S. 232;
Pacific Telegraph Co. v. O'Connor, 128 U.
S. 394;
Texas & Pacific Railway v. Horn,
151 U. S. 110.
The making of a remittitur in this case did not depend upon the
discretion of the court, but was authorized and regulated by the
statutes of the territory. While the right of appeal to this Court
from the courts of the territory is governed by the acts of
Congress, the proceedings in the territorial courts are regulated
by the territorial statutes.
Page 175 U. S. 170
The Revised Statutes of the Territory of Arizona contain full
and explicit provisions upon this subject, which have been set
forth in the statement prefixed to this opinion. They begin by
providing that "any party in whose favor a verdict or judgment has
been rendered" in the district court "may in open court remit any
part of such verdict or judgment, and such remitter shall be noted
on the docket and entered in the minutes." This provision clearly
includes any party, whether plaintiff or defendant, in whose favor
a judgment for a sum of money has been rendered, and is applicable
to the case of a wife who has recovered a judgment for alimony and
counsel fees. The provision of the next section is equally
comprehensive, by which
"any party may make such remitter in vacation by executing and
filing with the clerk a release in writing signed by him or his
attorney of record and attested by the clerk with the seal of his
office,"
and "such release shall constitute a part of the record of the
cause." In whichever of those two ways the remittitur is made, it
is provided that "any execution thereafter issued shall be for the
balance only of the judgment after deducting the amount remitted,"
and that "a remitter . . . shall, from the making thereof, cure any
error in the verdict or judgment by reason of such excess."
Those statutes, in a subsequent section, provide that
"if in any judgment rendered in the district court there shall
be an excess of damages rendered, and, before the plaintiff has
entered a release of the same in such court in the manner provided
by law, such judgment shall be removed to the supreme court, it
shall be lawful for the party in whose favor such excess of damages
has been rendered to make such release in the supreme court in the
same manner as such release is required to be made in the district
court."
This section again, construed together with the earlier
sections, clearly authorizes either party, whether plaintiff or
defendant, in whose favor a judgment for a sum of money has been
rendered in the district court, and who has made no remittitur or
release of part thereof in that court, to make the same in the
supreme court of the territory.
The section concludes by enacting that,
"upon such release's
Page 175 U. S. 171
being filed in said supreme court, the said court, after
revising said judgment, shall proceed to give such judgment as the
court below ought to have given if the release had been made and
filed therein."
The only departure from the provisions of these statutes in the
case at bar, as appearing by the record transmitted to this Court,
is that the clerk's attestation upon the defendant's release or
remittitur was a blank form without the clerk's signature or the
seal of his office. But the appellant, in his brief, while
contending in general terms that the course prescribed by the
statute had not been pursued, made no specific objection to the
proceedings except that the right to remit was given to the
plaintiff only. And in the material parts of the record, as set
forth in the brief of the appellee, the attestation to the release
appears to have been signed by the clerk and under seal. It is
possible that the signature and seal may have been inadvertently
omitted in the record transmitted to this Court. But, however that
may have been, the attestation of a release filed in vacation, like
the noting on the docket and entry in the minutes of a remittitur
made in open court, was an act to be done by the clerk, and not by
the party; its sole object in either case was to verify the act of
the party, and when, as in this case, the release was executed by
the party's attorneys of record, and was both filed and recorded in
the supreme court of the territory while the case was pending in
that court, we are of opinion that the statute was so substantially
and sufficiently complied with as to render the release of part of
the judgment below valid and to make it the duty of that court to
give effect to the release and, according to the express terms of
the statute, "after revising said judgment," to "proceed to give
such judgment as the court below ought to have given if the release
had been made and filed therein."
If that court had duly given effect to the release and had
rendered in other respects the same decree that it has rendered,
the case would not have been appealable. This case is appealable
because, and solely because, the decree rendered by that court is
for a sum of more than $5,000. If this Court
Page 175 U. S. 172
were to dismiss the appeal, it could not modify the decree
appealed from, and the appellee would retain a decree, not only for
$5,000, but also for $250 more, which she had legally remitted and
released before that decree was rendered. If this Court were to
reexamine the merits of the case, the appellant would have the full
benefit of an appeal which he could not have taken at all, had that
court acted rightly in a matter wholly independent of those
merits.
The just and appropriate way of disposing of the case appears to
this Court to be to affirm the validity of the release or
remittitur which the supreme court of the territory erroneously
ignored, to leave the case as if that court had performed its duty
in this regard, and, without considering whether there was any
other error in the decree for alimony and counsel fees, to order
that the
Decree of the Supreme Court of the Territory of Arizona for
$5,250 be modified so as to stand as a decree for $5,000, and, as
so modified, affirmed with costs.
MR. JUSTICE WHITE and MR. JUSTICE PECKHAM dissented.
[
Footnote 1]
"2114. The court pronouncing a decree of divorce from the bonds
of matrimony shall also decree and order a division of the estate
of the parties in such a way as to the court shall seem just and
right, having due regard to the rights of each party and their
children, if any, provided, however, that nothing herein contained
shall be construed to compel either party to divest him or herself
of the title to separate property."
"2120. If the wife, whether complainant or defendant, has not a
sufficient income for her maintenance during the pendency of the
suit for a divorce, the judge may, either in term time or in
vacation, after due notice, allow her a sum for her support in
proportion to the means of the husband until a final decree shall
be made in the case."
"2122. The court may award costs to the party in whose behalf
the sentence or decree shall pass, or that each party shall pay his
or her own costs, as to the court shall appear reasonable."
[
Footnote 2]
"817. Any party in whose favor a verdict or judgment has been
rendered [in the district court] may in open court remit any part
of such verdict or judgment, and such remitter shall be noted on
the docket and entered in the minutes, and execution shall
thereafter issue for the balance only of such judgment after
deducting the amount remitted."
"818. Any party may make such remitter in vacation by executing
and filing with the clerk a release in writing signed by him or his
attorney of record and attested by the clerk with the seal of his
office; such release shall constitute a part op the record of the
cause, and any execution thereafter issued shall be for the balance
only of the judgment after deducting the amount remitted."
"822. A remitter made as provided in any of the preceding
sections shall, from the making thereof, cure any error in the
verdict or judgment by reason of such excess."
"945. If in any judgment rendered in the district court there
shall be an excess of the damages rendered, and before the
plaintiff has entered a release of the same in such court in the
manner provided by law, such judgment shall be removed to the
supreme court, it shall be lawful for the party in whose favor such
excess of damages has been rendered to make such release in the
supreme court in the same manner as such release is required to be
made in the district court, and upon such release being filed in
said supreme court, the said court, after revising said judgment,
shall proceed to give such judgment as the court below ought to
have given if the release had been made and filed therein."
