| N.Y. App. Div. | May 6, 1921
So much of this decree as directs payment of alimony is in question. Could it bind an absentee? Can a money judgment thus taken by default stand because it is a part of divorce proceedings, or must jurisdiction be acquired by personal service, as in ordinary money judgments? Such a default judgment has two aspects. If in the proper form it can effectively dissolve the matrimonial status.- But so far as it purports to make one not served within the State pay money the court has exceeded its powers. The absent defendant may, therefore, accept the status decreed, even by his remarriage, without binding himself to pay the money so adjudged. (Rigney v. Rigney, 127 N.Y. 408" court="NY" date_filed="1891-10-06" href="https://app.midpage.ai/document/rigney-v--rigney-3582609?utm_source=webapp" opinion_id="3582609">127 N. Y. 408; Rundle v. Van Inwegan, 9 Civ. Proc. Rep. 328.) Without an appearance, the jurisdiction stops, when it dissolves the marriage, and incidentally disposes of the custody of those children who are within the jurisdiction, without power to decree alimony or even costs. (Cooley Const. Lim. [7th ed.] 584, 585; Black Judg. [2d ed.] § 933; Lynde v. Lynde, 162 N.Y. 405" court="NY" date_filed="1900-04-06" href="https://app.midpage.ai/document/lynde-v--lynde-3589602?utm_source=webapp" opinion_id="3589602">162 N. Y. 405; Burch v. Burch, 116 A.D. 865" court="N.Y. App. Div." date_filed="1907-01-25" href="https://app.midpage.ai/document/burch-v-burch-5201279?utm_source=webapp" opinion_id="5201279">116 App. Div. 865; Bunnell v. Bunnell, 25 Fed. Rep. 214, 216.) The case of Rigney v. Rigney (supra) controls the ruling in Scragg v. Scragg (63 Hun, 633" court="N.Y. Sup. Ct." date_filed="1892-03-31" href="https://app.midpage.ai/document/fox-v-mccomb-5502621?utm_source=webapp" opinion_id="5502621">63 Hun, 633; 18 N.Y.S. 487" court="N.Y. Sup. Ct." date_filed="1892-03-31" href="https://app.midpage.ai/document/scragg-v-scragg-5502546?utm_source=webapp" opinion_id="5502546">18 N. Y. Supp. 487.)
Service within the State or a voluntary appearance constitutes the essentials of due process of law for a money judgment. (Freem. Judg. [4,th ed.] § 567.) Hence, even for its own courts, no State can pass a law dispensing with these requisites. Such attempted exercise of State power would violate section 1 of the Fourteenth Amendment of the Federal Constitution. (McGuinness v. McGuinness, 72 N. J. Eq. 381.)
Blackmar, P. J., Mills and Jaycox, JJ., concur; Kelly, J., dissents upon the ground that the defendant by his acceptance of the decree and his acts thereunder for the past thirty years is estopped from- now questioning its validity.
Order reversed and motion granted.