Burch v. Burch, 102 N.Y.S. 305

Burch v. Burch

102 N.Y.S. 305 | N.Y. App. Div. | 1907

Rich, J.:

This is an appeal from an order denying defendant’s motion to vacate and set aside an execution made upon the grounds, among-others: “ That there is no authority in law authorizing the issuance of said execution and the same is irregular in form and substance;' that there is no valid judgment upon which said execution can be issued.’»

We think the court had power, assuming the judgment to have been valid, to make the order from which- this appeal is: taken, and *866this brings us to a. determination of the question as' to whether the judgment rendered was Valid and whether its validity is open to a collateral attack. The action may be regarded as one in rem. The summons and complaint were served" as required by the- Code of Civil Procedure and the decision of -the court, in so far as it relates to the purpose" .for which the action was brought, is binding' and conclusive between the parties and is not attacked in this .proceed?' ing. We are finable, however, to find any authority in this State for: rendering a judgment for a sum of money against a nonresident defendant upon whom personal service has not been made, without his appearance, unless jurisdiction has been obtained by attachment. Before a judgment can be rendered it must be made to appear that this formality has been' complied with: (Code Civ. Proc. §§' 1216, 1217.) The service of .the summons and complaint upon defendant in Chicago by mail was riot sufficient .to acquire jurisdiction to-render a judgment in the State of 2sTew York for a sum of money. (Pennoyer v. Neff, 95 U. S. 714; Rigney v. Rigney, 127 N. Y. 408.) It was said in Rigney v. Rigney {supra) that. “ A judgment for alimony and costs cannot be supported on the ground that they are" mere incidents of and .subordinate to'the right to a divorce, and the jurisdiction which is sufficient to support a decree changing the marital status of the plaintiff, will'not necessarily-sustain .a judgment for alimony and costs.” This case was. subsequently reversed by the' Supreme Court of-the United States - upon another ground. (Laing v. Rigney, 160 U. S. 531.) It is .still an authority, however, upon the question involved here. The judgment for. costs was rendered without aiithority and is void as to the defendant. Ho-valid force or effect can be given to any proceeding under a'void judgment,,and while better practice might have been a motion to set aside the judgment, still the execution is open to attack and ought to have been vacated and set aside. (Rowe v. Peckham, 30 App. Div. 173, 176; Johnson v. Manning, No. 1, 75 id. 285.) The order, therefore, must be reversed. '.

'Bjrsohberg, P. J,, Woodward, Jebes and Milder,. JJ., concurred.

'■ Order reversed, with ten ‘dollars 'césts and disbursements, and "motion granted,- with'.costs. ':