may be assumed that, by reason of the relation between the state and the citizen, which affords protection to him and his property and imposes upon him duties as such, he may be charged by judgment in personam binding on him everywhere as the result of legal proceedings instituted and carried on in conformity to the statute of the state, prescribing a method of service which is not personal, and which in fact may not become actual notice to him. And this may be accomplished in his lawful absence from the state." The court then states that it is not necessary to consider the distinction between domicile and residence; but that such question was "one of fact dependent upon all the circumstances appearing by and inferable from the testimony, to which it is unnecessary here to refer in detail," which justified the referee to conclude that the domicile or residence of the defendant had not been changed. And the evidence in that case was vastly stronger in favor of a permanent change of residence and domicile than in the case at bar. There are many other authorities to the same point, but we will only refer, in addition to those above cited, to Black on Judgments, section 907, and the numerous cases cited and quoted from in the notes to Flint River Steamboat Co. v. Foster, 48 Am. Dec. 273, 274.

In nearly all the cases on the subject the words "resident," "domicile," "citizen," and "inhabitant" are used indiscriminately to signify an actual permanent residence which has not been actually and in good faith changed; and "nonresident" is applied to one who is not such a citizen, inhabitant, or resident of, and has not such domicile within, the state in which the judgment is rendered. We are not concerned here with the question how far full faith and credit should be given to the judgment in another state, but only with the question: Is it void in this state? As the appellant was not a nonresident, the case does not fall within the decision in Pennoyer v. Neff, supra, and, under the general authorities, the judgment is valid in the state in which it was rendered. All that is necessary to be de

termined in this case is that a citizen and resident of California cannot escape the performance of his duties, and baffle our courts in their attempts to enforce the rights of others against him, by sudden flight and temporary absence expressly intended for that purpose. Every rule of law and every sentiment of justice is an obstruction to the success of such strategy. Nor will the affirmance of the order appealed from be violative of either the general international law or the American interstate law. A sovereign state might be justified in refusing to enforce within its own territory, and against one of its own citizens, a judgment rendered in another state upon substituted service; but neither its interest nor its dignity would be touched by the enforcement of such a judgment by another state within its territory and against its own citizens.

We cannot see merit in the point made by appellant that the substituted service was not sufficiently in compliance with the statute of this state which provides for it. The main contention is that the statement in the affidavit for publication that the defendant "has departed from the state of California, and is now absent therefrom," is of a mere conclusion, and not of a fact; but it would be difficult to suggest any other language that would express the facts of departure and absence with more clearness and certainty. The fact that a few of those words are used in the statute does not prevent their use in an affidavit if they are apt words to express the meaning of the affiant.

Respondent contends, also, that the order appealed from should be affirmed upon the further grounds that those parts of the judgment which relate to the custody. of the children and alimony are mere incidents to the divorce, and that the jurisdiction to grant the divorce, which is admitted on all hands, carries with it the jurisdiction of the incidents; and, furthermore, that the relation of children to parents is a status like that of marriage, and that, therefore, an action to determine the custody of children, like a suit for divorce, is in the

nature of a proceeding in rem. But it is unnecessary to discuss these points at length, because the views heretofore expressed would be determinative of the case in favor of respondent upon another ground. We may

say, however, that so far as the custody of the children. is concerned, this second contention of respondent seems to be correct. The judgment merely determines generally the custody of the children, and whether it could. be enforced in another state or country is not here involved. It is settled law that a decree of divorce operates upon the relation, the status, and that, therefore, such a decree, founded upon constructive service by publication is valid, even as against one resident, and domiciled beyond the state. (See cases cited in notes to Flint River Steamboat Co. v. Foster, supra.) “A judgment for divorce is quasi, at least, in rem. Judgments in rem, it is well known, are not, as the name implies, confined to adjudications against things. They are rendered, in many instances, where the prior proceedings are entirely in personam, as in cases establishing or dissolving marriages." (Freeman on Judgments, sec. 606.) In Pennoyer v. Neff, supra, it is said: "The jurisdiction which every state possesses to determine the civil status and capacities of all its inhabitants, involves authority to prescribe the conditions on which proceedings affecting them may be commenced and carried on within its territory." Now, is f not the relation between parent and child a "civil status?" It is so assumed to be in Cooley's Constitutional Limitations, sixth edition, page 499. In Bishop on Marriage, Divorce, and Separation, section 1189, it is said that "the relation of parent and child is a status

. . . like marriage." And in the Estate of Newman, 75 Cal. 213, 7 Am. St. Rep. 146, the court said: "So far as the action of Maldonado v. Maldonado affected the status of the parties and the custody of the child, it was a proceeding in rem, and service by publication in such case is good." (See, also, Wakefield v. Ives, 35 Iowa, 238, and People v. Allen, 40 Hun, 611.) In Brenot v. Brenot, 102

CXII. CAL.-9

Cal. 294, it was held that, in an action for divorce, the custody of the children was an incident in the main relief sought-the divorce. (See, also, Younger v. Younger, 106 Cal. 377.) Upon these authorities, and upon principle, we think that, in an action brought for both divorce and the custody of the children, the latter is an incident of the former, and that the court has jurisdiction over the status founded on the relation of parent and child as well as of the status founded on the relation of husband and wife, even as against a bona fide nonresident domiciled elsewhere. And, in such a case, the actual physical presence of the children is no more necessary for jurisdiction over the status in the one instance, than is the presence of the husband necessary in the other. It is not necessary to determine whether or not jurisdiction to decree alimony would follow as an incident to the divorce. It is doubtful if the judgment in this case really awards any alimony; but, if it does, its validity in that respect has sufficient basis in the proposition first discussed in this opinion.

With respect to the statement of facts herein before made, it is proper to observe that where, as in this case, the appeal is from a mere order of the court below granting or denying a motion, and where findings are not necessary, this court will assume the existence of such facts necessary to support the ruling of the lower court as fairly appear from the evidence. Here the preponderance of the evidence is largely in support of the facts above stated. Indeed, the fact that appellant fled the state, and clandestinely carried away the children to avoid the action, is too apparent to be even debatable.

The order appealed from should be affirmed.

BEATTY, C. J., and VAN FLEET, J., concurred in the dissenting opinion.

Rehearing denied.

[No. 15997. In Bank.-March 24, 1896.]

LORRAINE W. DE LA MONTANYA, RESPONDENT, v. JAMES DE LA MONTANYA, JR., APPELLANT. LORRAINE S. DE LA MONTANYA ET AL., DE

FENDANTS.

APPOINTMENT OF GUARDIAN-JURISDICTION

LOCAL-ABSENCE OF CHIL

DREN FROM STATE-DOMICILE IMMATERIAL.-The jurisdiction to ap. point a guardian for infants, under the American system, is entirely local, and the superior court has no jurisdiction to appoint a guardian for infants who are absent from the state, and the fact that their domicile is in the state is immaterial, and is no test of jurisdiction to appoint a guardian for them.

ID.-AWARD OF CHILDREN TO MOTHER-PUBLICATION OF SUMMONS-VACATION OF DECREE. -A decree rendered upon publication of summons, in an action brought by a mother to secure the custody of the children who have been removed from the state by the father, awarding to the plaintiff the exclusive custody of the children, is without jurisdiction, and should be vacated upon motion of the defendant.

APPEAL from an order of the Superior Court of the City and County of San Francisco refusing to vacate a judgment. CHARLES W. SLACK, Judge

The facts are stated in the opinion of the court.

Dorn & Dorn, for Appellant.

The judgment was, and is, void, because the appellant,. as well as the children, was absent from the state, was not served within the state, and did not appear in the action. (Pennoyer v. Neff, 95 U. S. 714; 5 Am. & Eng. Ency. of Law, 752, 753, 762; Gould v. Crow, 57 Mo. 200; Garner v. Garner, 56 Md. 127; Cooley's Constitutional Limitations, *405; Freeman on Judgments, secs. 584, 585; Kline v. Kline, 57 Iowa, 386; 42 Am. Rep. 47; Woodworth v. Spring, 4 Allen, 321; Brown on Jurisdiction, secs. 78, 79.) With respect to guardianship, the actual residence of the infant determines what court has jurisdiction to make the appointment. (10 Am. & Eng. Ency. of Law, 94; Ware v. Coleman, 6 J. J. Marsh. 198; Montgomery v. Smith, 3 Dana, 599; Dorman v. Ogbourne, 16 Ala. 759; Munson v. Newson, 9 Tex. 109; Lacy v. Will