TWO RECENT CASES ON INTERSTATE MARITAL RELATIONS is ineffective. Andrews v. Andrews, 188 U.S., 14 (1902). The court then goes on to give the reasons upon which it reaches its ultimate conclu sion. These reasons may be briefly stated as follows : That divorce is necessarily a pro ceeding that involves the status of two dif ferent persons. That while it is admit tedly competent for a state as being the jurisdiction primarily interested, to deter mine for itself the status of that one of the spouses who by being there domiciled has become a part of that state, it is for pre cisely this same reason that it cannot speak as to the status of the other spouse not thus domiciled; that whether divorce pro ceedings be regarded as being in personam or in rem with the matrimonial relation as res, a decree cannot affect that person in the one case or that part of the res in the other case which- is out of the jurisdiction. Corning as it does within a few years after the important case of Atherton v. Atherton (ante) the present decision while it must be accepted as the latest word of the Supreme Court naturally suggests a comparison with its predecessor. While it cannot be said to be necessarily in conflict with the Atherton case it is difficult to avoid the conclusion either that if the Atherton case is to be accepted at its face value the distinction between it and the present case is technical and based on not very sound principle, or else that the court is attempting to limit tendencies that as manifesting themselves in the Ath erton case, it regards as going too far. The facts in the Atherton case are as follows : The husband and wife were married in New York and at once took up their domicile in Kentucky, the husband's former domicile. The wife thereafter left the hus band under such circumstances (as she alleged) that he could no longer compel her to live with him because of his cruelty. She returned to New York and so far as possible acquired a bona fide domicile in that state. Her husband thereafter brought divorce pro ceedings in Kentucky, of which she had actual
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notice and notice by publication in ac cordance with the Kentucky statutes and obtained a divorce decree from the Ken tucky court based upon her desertion, later the wife instituted divorce proceed ings in New York. The husband appeared and pleaded the Kentucky decree. The New York court refused to recognize that decree and this refusal the Supreme Court of the United States held to be error. This conclusion the court says in the Haddock •case is to be explained on the ground that Kentucky was the state of the matrimonial domicile. The New York court, however, in the Atherton case had found that Ken tucky was no longer such because the wife had rightly left the husband and taken up her domicile in New York; but the Su preme Court in that case declared the find ing of the Kentucky court that she had deserted her husband was conclusive as against the wife. In the Haddock case New York had been the matrimonial domi cile; but if the finding of the court of Con necticut was to be taken as, conclusive the latter state had become the matrimonial domicile as the husband had gone there under circumstances that rendered it the duty of the wife to follow; but in this case the Supreme Court declared the finding of the Connecticut court not conclusive. If the Kentucky court could conclusively declare that the wife had wrongfully deserted the husband- and therefore her domicile was in legal theory still with him, it is hard to see why the Connecticut court could not con clusively decree that the wife had wrong fully deserted the husband in New York and that, therefore, in legal theory her domi cile followed his admittedly bona fide Con necticut domicile. In both cases there was a decree pronounced by a court of the state where the husband alone was in fact domiciled. In both cases it was sought to have the decree affect indirectly the status of the wife who in both cases throughout the entire proceedings had been in fact permanently located in another state. In
