Argument for Plaintiff in Error. From the evidence above stated the ultimate facts were found to be that Andrews had always retained his domicil in Massachusetts, had gone to Dakota for the purpose of obtaining a divorce, in fraud of the laws of Massachusetts, and with the intention of returning to that State when the divorce was procured, and hence that he had never acquired a bona fide domicil in South Dakota. Applying a statute of the State of Massachusetts forbidding. the enforcement in that State of a divorce obtained under the circumstances stated, it was decided that the decree rendered in South Dakota was void in the State of Massachusetts, and hence that Kate H. Andrews was the widow of Charles S. Andrews and entitled to administer his estate. 176 Massachusetts, 92. Mr. Elbridge R. Anderson for plaintiff in error. I. In support of the jurisdictional question cited Home Insurance Co. v. City Council of Augusta, 93 U. S. 116; Powell v. New Brunswick County, 150 U. S. 433. It is not necessary that the Federal question appear affirmatively upon the record or in the opinion if the adjudication of such a question is involved in the disposition of the case by the state court. Kaukauna County v. Green Bay &c., 142 U. S. 254; Willson v. Blackbird Creek Marsh Co., 2 Peters, 245; Armstrong v. Athens Co., 16 Peters, 281; Chicago Life Ins. Co. v. Needles, 113 U. S. 574; Eureka Lock Co. v. Yuba Co., 116 U. S. 410; Chapman v. Goodnow's Adm., 123 U. S. 540. II. Both parties submitted to the jurisdiction of the South Dakota court. No fraud was practised upon the court. Under the Constitution of the United States the judgment of divorce is conclusive. It appears that the state court felt constrained to sustain the appeal because of Pub. Stats. of Massachusetts, chap. 146, sec. 41, which provides that "when an inhabitant of this Commonwealth goes into another State or country to obtain a divorce for a cause which occurred here while the parties resided here, a divorce so obtained shall be of no force or effect in this Commonwealth.' It is Argument for Plaintiff in Error. important, therefore, to consider the validity and scope of this statute. Const. art. 4, sec. 1; Rev. Stat. sec. 905. Such judgments as are protected by this constitutional provision cannot be nullified by any state law, and on the question what judgments are so protected, the decisions of this court are controlling. Christmas v. Russell, 5 Wall. 290; Laing v. Rigney, 160 U. S. 531. On the one hand there is a plain intimation that an ex parte judgment of divorce is not conclusive beyond the State in which it is rendered, and that every other State is at liberty to give it such effect as may seem proper as a matter of comity or public policy. Pennoyer v. Neff, 95 U. S. 714, 731, 734. "On the other hand it is settled that where the appellant has resided in the State for the period required by the local laws and the defendant is before the court, a judgment of divorce is conclusive everywhere." Cheever v. Wilson, 9 Wall. 108. Under this decision, if Andrews was in fact a resident of South Dakota when he applied for his divorce, then the judgment is conclusive. If he was not a resident, then the question as to whether the judgment is open to attack upon that ground is left undecided. Andrews was a resident of South Dakota at the time he applied for his divorce, Thayer v. Boston, 124 Massachusetts, 132, 148, notwithstanding that he intended to return to this State when the business was finished. Methodist clergymen are required by the rules of their denomination to change from place to place every two or three years, but these rules do not prevent the clergyman from obtaining a residence and a right to vote in every place in which he resides. Holmes v. Green, 7 Gray, 299; Carnoe v. Inhabitants of Freetown, 9 Gray, 357; Sleeper v. Page, 15 Gray, 349, 350. The finding of the South Dakota court that Andrews was a resident of that State is conclusive in the absence of fraud. The defendant was before the court; it was open to her to try that question there; she cannot try it in Massachusetts or here. Noble v. Union River Logging Railroad, 147 U. S. 165. Within the distinction here indicated the fact of the residence Argument for Plaintiff in Error. of the libellant in a divorce suit in which a defendant appears is quasi jurisdictional. By the great preponderance of authority, the findings of the court upon this question are held to conclude the parties to the proceeding in the absence of fraud. Ellis's Estate, 55 Minnesota, 401; Kinnier v. Kinnier, 45 N. Y. 535; Jones v. Jones, 108 N. Y. 415; Kirrigan v. Kirrigan, 15 N. J. Eq. 147; Fairchild v. Fairchild, 53 N. J. Eq. 678 (1895); Waldo v. Waldo, 52 Michigan, 94 (1883); Van Fleet Collateral Attack, sec. 648 (1892). The conclusive effect given by the New York courts to judgments of divorce rendered in the presence of both parties is the more noteworthy from the fact that it is still held in New York that ex parte judgments of divorce obtained in other States are of no validity in New York whether the libellant was or was not a resident of the State where the divorce was obtained. People v. Baker, 76 N Y. 78; O'Dea v. O'Dea, 101 N. Y. 23. Waldo v. Waldo, 52 Michigan, 94, sustains contention of plaintiff in error fully and controls everything to the contrary in People v. Dawell, 25 Michigan, 247. There are only two cases in which a judgment of divorce obtained in another State, the defendant appearing, has been held void in Massachusetts. Chase v. Chase, 6 Gray, 157; Hardy v. Smith, 136 Massachusetts, 328, in which the wife obtained a decree of divorce from a Utah court pursuant to an agreement with her husband under which he fabricated the evidence by which she sustained her libel. After her death he was permitted to maintain his right as husband in her property notwithstanding the divorce. This decision is not inconsistent with any position we have taken or need to take in the present case, since it cannot be contended, in the face of Mr. Justice Hammond's findings, that Andrews perpetrated any fraud upon the South Dakota court. "His intention was to become a resident of that State for the purpose of getting his divorce, and to that end to do all that was needful to make him such a resident, and I find he became a resident if, as a matter of law, such finding is warranted on the facts above stated " Page 32, Record. Argument for Plaintiff in Error. It is to be noticed that while fraud is suggested in the New Jersey cases as a ground for collateral attack, the fraud referred to means fraud upon one of the parties to the suit. Collusion, unless it involves an agreement to commit perjury or some other illegal act, is not treated either there or in any other jurisdiction as a ground for attack, but rather a ground for estoppel. III. It is a universal proposition that the judgment of a court which has the power to enter judgment upon the facts alleged is binding upon the parties before it, and that this proposition is true of divorce judgments as of other judgments. "If both parties colluded in a cheat upon the court it was never known that either of them could vacate the judgment." Prudam v. Phillips, Hargraves' Law Tracts, 456; Adams v. Adams, 154 Massachusetts, 290, 297; Edson v. Edson, 108 Massachusetts, 590, 598. In some States it was held on an indictment for adul tery that a divorce obtained in the State in which neither party resided, although the parties had submitted to the jurisdiction, was no defence. People v. Dawell, 25 Michigan, 247; State v. Armington, 25 Minnesota, 29. But in later cases these courts have held that a divorce obtained under the same circumstances was not open to attack by either party. Waldo v. Waldo, 52 Michigan, 94; Ellis's Estate, 55 Minnesota, 401. A party who assents to a divorce judgment is bound by it. In some cases the judgment has been attacked on want of jurisdiction, collusion and fraud upon the court. In some cases the party making the attack was the original libellant, and in others the libellee, who either agreed to the divorce judgment at the time, or subsequently acquiesced in it by marrying or by permitting the libellant to marry without objection. Cases in which a woman has renounced her status as wife, and has later tried to assert her status as widow, are not infrequent, but the unanimity with which the court has discouraged this form of enterprise is impressive. Nichols v. Nichols, 25 N. J. Eq. 60; Zoellner v. Zoellner, 46 Michigan, 511; Richardson's Estate, 132 Pa. St. 292; Arthur v. Israel, 15 Colorado, 147; Mohler v. Shank, 93 Iowa, 273; Marvin v. Foster, 61 Minnesota, 154; Stephens v. Stephens, 51 Indiana, 542; Nichol Argument for Defendant in Error. son v. Nicholson, 113 Indiana, 131; Davis v. Davis, 61 Maine, 395; Miltimore v. Miltimore, 40 Pa. St. 151; In the Matter of Morrison, 52 Hun, 102; affirmed 117 N. Y. 638; Ellis v. White, 61 Iowa, 644; Elliott v. Wohlfrom, 55 California, 384. In the foregoing cases the original divorce judgment was attacked in some instances on jurisdictional grounds and in others on non-jurisdictional grounds of fraud and collusion, and where the parties have submitted to the jurisdiction of the court there is no valid ground of distinction between the two cases. If there is any ground for holding that the parties to a divorce judgment are not bound by it, that must be because the State is interested to uphold the marriage relation even against the will of both parties. But if that is the true ground, then it is clear that it can make no difference whether the fraud practised upon the court is a jurisdictional fraud or some other kind of fraud. No state court would allow a divorce decree of its own tribunals, rendered in the presence of both parties, to be attacked upon the jurisdictional question or upon any other. If this be true we submit that the Constitution of the United States protects under the same circumstances the decrees of other States. IV. The recent cases decided by this court in no way change the law as it heretofore existed, but are declaratory of the principles contended for in this brief. Bell v. Bell, 181 U. S. 175; Streitwolf v. Streitwolf, 181 U. S. 179. In both these cases the decree of divorce sought to be set up was obtained in cases where there was no appearance by the respondent, and the proceedings were ex parte. The case of Atherton v. Atherton, 181 U. S. 155, in no way applies to a case like the case at bar and in no way affects the principles contended for in this brief. Mr. Wayne Mac Veagh and Mr. Frank Dewey Allen for defendant in error. Mr. Frederic D. McKenney was with them. on the brief. I. No Federal question is presented by this record for the consideration of the court. Possibly a Federal question might |