Howard v. Strode. To the introduction in evidence of this decree plaintiff objected "on the ground that the court rendering the decree never acquired jurisdiction over the person of the plaintiff herein; that it is not shown that the parties were married in Washington, or that the plaintiff in this suit ever had a residence in the State of Washington, and because it shows that the service upon which the decree was rendered was constructive service, and because the evidence already before the court shows that the parties in this case, whether it be Miller or Howard, were married in the State of Illinois, and because plaintiff here was not a party to this action, the court never having acquired legal jurisdiction over the person of plaintiff; and because to introduce this record now would be in violation of her constitutional rights under that provision of the Constitution, section 1 of the 14th Amendment to the Constitution of the United States, which forbids the taking from her without due process of law her property rights, and in violation of section 1 of article 14 of the Constitution of the United States, and in violation of the written opinion of the Supreme Court of the United States rendered in the case of Haddock v. Haddock, reported in volume 201 U. S., page 562; and in violation of section 30 of article 2 of the Constitution of Missouri." Later, before the decree was admitted, plaintiff interposed this additional objection: "In addition to the objections made heretofore to the admission of the decree, it is further objected to on the ground that the decree is incomplete, in that the record of said cause is not present, and that from the face of said decree it does not appear that the Superior Court of Thurston county, State of Washington, is a court of general jurisdiction, or that its jurisdiction extends beyond the limits of said county, or that it acquired any jurisdiction over the person of plaintiff." Howard v. Strode. The objection to the jurisdiction of the Washington court over the subject-matter was fully met by the introduction in evidence of a statute of that State defining the jurisdiction of the Superior Court. The objection based on the non-residence of plaintiff in Washington is founded upon the decision of the U. S. Supreme Court in Haddock v. Haddock, 201 U. S. 562, which holds that the full-faith-and-credit clause in the Federal Constitution cannot be invoked to compel a State to recognize as valid a divorce granted by a sister State upon constructive service by publication, where the defendant in the suit had never had a matrimonial domicile in the State granting the divorce. That case does not hold that such decree cannot be recognized as valid in another State. On the contrary, the opinion says (1. c. 605): "Without intimating a doubt as to the power of the State of New York to give to a decree of that character rendered in Connecticut, within the borders of the State of New York and as to its own citizens, such efficiency as it may be entitled to in view of the public policy of that State, we hold that the decree of the court of Connecticut rendered under the circumstances stated was not entitled to obligatory enforcement in the State of New York by virtue of the full-faith-and-credit clause." In the course of the opinion the court cites Missouri as holding to the policy of recognizing the validity within its borders of such decrees, and cites as authority Gould v. Crow, 57 Mo. 200, and Anthony v. Rice, 110 Mo. 223. The ruling of the two cases just cited has never been questioned in this State. It is our policy to recognize the validity in this State of such foreign divorces. There is nothing in the Haddock case which in the slightest degree seeks to control our policy in this regard. This policy violates no rights under either the State or Federal Constitution. 242 Sup.-15 Howard v. Strode. Concerning the objections that the decree fails to show due service, and is also incomplete, absent the entire record, the decree states in effect that legal service was had by publication. This makes a prima-facie case of due and legal service. It must also be presumed that the court proceeded in due course, and by right, upon a sufficient record. In the recent case of Lieber v. Lieber, 239 Mo. 1, we approve this from 13 Am. & Eng. Ency. Law (2 Ed.), p. 995: "Where reliance is placed on a foreign judgment rendered by a court of record and of general jurisdiction the presumption is that such court had authority to render the judgment in question, and that the necessary jurisdiction was acquired properly." In the light of such presumption, the point made by plaintiff that it does not appear that the statutes of Washington authorized constructive service by publication, is not well taken. Moreover, this exact question is decided adversely to plaintiff's claim in Williams v. Williams, 53 Mo. App. 1. c. 620 upon grounds which we fully approve. For the purpose for which this decree was offered in evidence, namely, to establish the status of Miller as a witness, we think the record was prima-facie sufficient and valid. IV. Did the trial court err in holding that the divorce removed the alleged matrimonial disability of Miller to testify at the time his deposition was taken? In other words, if the witness when he gave his deposition was incompetent to testify because he was at the time the husband of plaintiff, does the subsequent removal of the disability by a decree of divorce, granted before the deposition is offered to be read in evidence, make the deposition competent? Our statute, section 6411, Revised Statutes 1909, provides that depositions "may be read and used as evidence in the cause in which they shall have been Howard v. Strode. taken, as if the witnesses were present and examined in open court on the trial thereof." That is to say, the deposition becomes, as it were, the witness. The competency of a witness, in regard to the objection. made here, is to be determined by his status when put upon the stand. If he is the husband of plaintiff he cannot testify. He is not disqualified because of the fact that he has been plaintiff's husband, except as to confidential communications. In 13 Cyc. 994, the rule is thus stated: "As a general rule, the status of the witness at the time of the trial governs the question of his competency; for, in contemplation of law, the deposition itself is the witness, and the witness is presumed to testify when the deposition is used." In Messimer v. McCray, 113 Mo. 382, we said: "The competency of a witness to testify can only be determined when his deposition is offered upon the trial, at which the deposition stands for the witness. If he is not competent under the law as it then exists his deposition cannot be read, although he may have been competent under the law as it existed when it was taken. The parties have no vested right in the evidence of a witness. [O'Bryan v. Allen, 108 Mo. 227.]" In St. L., I. M. & S. Railway Co. v. Harper, 50 Ark. 159, a deposition was taken when the witness was competent. Before it was offered in evidence the witness became incompetent by reason of his conviction. of an infamous crime. The deposition was rejected. The court says: "The status at the trial governs the question of competency (Weeks on Depositions, sec. 515; Fielden v. Lahens, 14 Abb. Pr. 48; Oliver v. Moore, 12 Heisk. 482; Webster v. Mann, 56 Tex. 119), for, in contemplation of law, the deposition is the witness (Jones v. Scott, 2 Ala. 58), and the witness is presumed to testify when the deposition is used (Park Howard v. Strode. v. Lock, 48 Ark. 133; Quick v. Brooks, 29 Ia. 485; Fagin v. Cooley, 17 Ohio Rep. 51).” In the cases of Long v. Martin, 152 Mo. 668, and McCloskey v. Publishing Co., 163 Mo. 22, we held that a divorce removed the disability of a wife as a witness. To the same effect is Toovey v. Baxter, 59 Mo. App. 470. That the competency of a husband or wife as a witness depends upon whether the relation exists at the time of the trial (except as to confidential communications), is evident when we consider the ground upon which the rule rests. Mr. Greenleaf says it rests upon the notion of the untrustworthiness of a spouse testifying; that each will be likely to favor the other; also to protect the sanctity of the marriage relation on grounds of public policy. [1 Greenleaf on Ev., sec. 333.] He also says that divorce destroys the incompetency. [Ibid., 337.] In view of the foregoing, it is obvious that the court did not err in its ruling on this proposition. V. Plaintiff was married on the 15th day of January, 1883, at Decatur, Illinois, to a man whose name appears in the marriage license as "Henry Howard," and who wrote his name as Henry Howard in the return of marriage to the county clerk, which was signed by both bride and groom on said 15th day of January. Plaintiff claims that this man whom she married on that day was Laclede J. Howard. The defense not only denies this claim, but introduced evidence tending to prove that the man whom plaintiff married that day, under the name of Henry Howard, was in fact one Thomas J. Miller. In support of this defense the defendant introduced, over plaintiff's objection, several pages of a book of entry of the Evans-Howard Fire Brick Company, of which company Laclede J. Howard was president in 1883, and particularly an order for goods which purported to have been entered |