Plаintiff sued for divorce and alimony. The trial court granted the divorce, but refused the alimony. She appealed to the St. Louis Court of Appeals, where, in an opinion by Allen, J., the judgment was reversed and the cause remanded. Beynolds, P. J., filed a dissenting opinion, and deemed the majority opinion in conflict with Moss v. Fitch,
The suit was begun September 1, 1914. Successive writs of summons were returned “not'found.”
On August 5, 1915, she filed an amended petition in which Walter Chapman, a brother of the originаl defendant, was made a party defendant. It alleged the necessary residence of the plaintiff in the city of St. Louis, and also alleged indignities, vagrancy, desertion and failure to support as the grounds for divorce. It also alleged that she was without means of support; that defendant purchased and paid for two pieces of real estate therein described, one in the city and the other in the county of St. Louis, and had the title thereto put in the defendant Walter Chapman, who paid nothing therefor, and who was holding the title in trust for Fred-E. Chapman; that said Fred E. Chapman had absconded
“Plaintiff therefore prays for an order of publication against both defendants and that plaintiff be divorced from the bonds of matrimony contracted as aforesaid with the defendаnt, Fred E. Chapman, and that the •court will adjudge to her permanent alimony in gross for her support and maintenance and alimony pendente lite and her attorney’s fees and suit money and costs and enforce and establish the same as a lawful right, claim and demand to and against said real estate within the jurisdiction of this court, and enforce the performance of the judgment by sequestration of said property and such other lawful ways and means as is according to the practice of the court; that a receiver be appointed to take charge of said property, that the defendants be enjоined from selling or in any wise disposing of or encumbering or injuring said property, and that plaintiff be restored to her former name, Fannie P. Price, and make such further orders and judgments touching the premises as may be proper.”
There was an order of publication, which was duly published, and which recited all the facts stated in the petition including the description of the real estate and the prayer for relief as made in the petition.
Both defendants made default. The evidence in every respect supported the allegations of the petition. The plaintiff’s evidence was a pitiful narration оf the brutal treatment, neglect and desertion of plaintiff by her husband. The evidence showed each of the properties to be worth something over $4000, with an encumbrance of $2000 on each, and that the title was 'put in Walter Chapman prior to the marriage of plaintiff with
The fact that the able jurists, including the trial judge, who have passed on this case are equally and radically ’ divided prompts us to proceed with extreme caution.
In Stokes v. Stokes,
In Twyman v. Twyman,
In State ex rel. v. St. Louis Court of Appeals,
This court in In re Gladys Morgan,
Mangels v. Mangels,
In Keller v. St. Louis,
“The statute provides that ‘When a divorce shall he adjudged, the court shall make such ordеr touching*670 the alimony and maintenance of the wife, and the care, custody and maintenance of the children, or any of them, as from the circumstances of the parties and the nature of the case, shall he reasonable.’ [R. S. 1889, sec. 4505.] Divorce as known to our law is the creature of statute, and the power the court has over the rights and liabilities of the husband and wife is to be measured by the terms of the statute. In the decree in this instance, no order was made ‘touching the maintenance of the children.’ The order made was limited to the ‘care and custody’ .of the children, which were awarded to the plaintiff. So far as this decree is concerned, the duty of maintenance and the correlative right to the service of the children were left just where they were before the decree was entered, unless the order transferring the right of the husbands to the care and custody of the children, to the wife, had the effect, ex vi termini, of transferring, to her, his duty of maintenance, with its reciprocal right to the services of the children.”
With all due respect, we suggest that though the statute was well applied to the facts in that case, yet, in so far as the language there used was broader than the facts callеd for, it was obiter dictum, and not in accordance with the well recognized law in this State. The same may be said of Creasey v. Creasey, 175 Mo. App. l. c. 241, where it was said: “Divorce, with its incidents, is, in our State, entirely a statutory proceeding.” No authorities are cited in either of those cases.
The first legislation in Missouri concerning divorce and alimony was the Act of May 13, 1807 (1 Ter. Laws, page 90). It allowed a jury trial at the requеst of either party. The Revised Statutes of 1825, p. 330, sec. 3, provided :
“Be it further enacted, That the circuit court sitting as a court of chancery, shall have jurisdiction in*671 all causes of divorce and alimony, or maintenance, by this act allowed; and the like process, practice and proceedings shall be had and pursued in all causes as are usually had and pursued in other causes on the equity side of said court, except that the answer of the defendant shall not be under oath. ’ ’
Section 6 of that revisory act provided for the rendition of the judgment for divorce and alimony, for the requirement of security for the payment of the alimony, for an execution to collect the same and for the enforcement of the judgment by the sequestration of property. That section was in all essentials the same as our present section 2375.
In the revision of 185-5 (R. S. 1855, p. 663, sec. 4), the provision that the suit should be an equitable one and that the court should sit therein as a court of chancery was left out. By some oversight perhaps, the words in regard to the sequestration of property (an equitable process), were kept in the Statute.
35 Cyc. 1386, sec. A, says:
“Formerly sequestration had its chief importance as a chаncery remedy, a ‘species of “grand distress,” ’ whereby the property of a party, or of a corporation, was seized by officers of the court of chancery to punish contempts or to compel obedience to the order or decree of the court, final or interlocutory. Thus it issued to compel an appearance or an answer, especially against corporations, after fruitless resorts to writs of distringas. Before the use of the writ was authorized it had to be shown that imprisonment had failed to break the spirit of the party in contempt or, by a return of non est inventus, upon an attachment, that he could not be found. The court commonly named the persons, usually four, to take possession of and retain the personal property, of the party in contempt and the revenues of his lands, until such time as the contempt should be purged. The modern abolition of imprisonment for debt has been construed to abolish sequestrations as processes to compel obedience to decrees for the payment of money; and in the case of decrees for the performance of acts*672 other than the payment of money the statutes providing fоr decrees by default upon failure of deféndant to appear or answer and for the issuance of execution, as in the ease of judgments at law, upon decrees in equity; have deprived the writ of sequestration of practically all of its former importance in this phase. Indeed the authorities upon this branch of the law of sequestration are confined chiefly to the decisions of the English courts before the declaration of American independence, the subject having never assumed much practical importance in the United States generally in this aspect.”
In Coughlin v. Ehlert,
The fact that the trial in a divorce case is without a jury, and that the provision as to the sequestration of property is still printed in the statutes, may cause the casual observer to say that the proceeding is in equity. In Rosenfeld v. Stix, 67 Mo. App. l. c. 586, it was said: “A divorce suit is substantially one in equity.” The contrary was held in the Mangels case, supra.
While it may be true that in a divorce case the court may be called on, incidentally, to decide collateral questions of equity jurisprudence, yet, in the light of the facts as they are, we must hold that, in this‘State, the suit for divorce and alimony is one at law and not in equity.
The appellant’s brief says:
“If a defendant is not personally served and does .not enter a voluntary appearance, a personal judgment cannot be rendered. Nevertheless, as the State has control over the marriage status of its inhabitants and also over property within its boundaries, in a suit for divorce and alimony, based on service by publication, the court may acquire jurisdiction to render a judgment in ran not only as to the marriage status, dissolving it, but also as to the property within the State, subjecting it .to alimony award of the court, if the proper foundation is laid by the pleadings and the process.”
There is just one mistake in that statement, and it is a vital one. The foundation must be laid deeper than the pleadings and process; it must be in the lato. That brief cites Pennover v. Neff,
“So the State, through its tribunals, may subject property situated within its limits owned by non-residents to the payment- of the demand of its own citizens against them; and the exercise of this jurisdiction in no respect infringes upon the sovereignty of the State where the owners are domiciled. Every State owes protection to its own citizens; and, when non-residents deal with them, it is a legitimate and just exercise of authority to hold and appropriate any property owned by such non-residents to satisfy the claims of its citizens. It is in virtue of the State’s jurisdiction over the property*674 of the non-resident situated within its limits that its tribunals can inquire into that non-resident’s obligations to its own citizens, and -the inquiry can then be carried only to thе extent necessary to control the disposition of the property. If the non-resident have no property in the State, there is nothing upon which the tribunals can adjudicate.”
We concede that to be true; and we will assume that the State can do as much in a suit brought against one of its own citizens who has absconded or who has absented or concealed himself so that the ordinary process of the law cannot be' served upon him-. But there is not in this State any law authorizing a proceeding' against defendant’s property for alimony on constructive service of process. The Statе has never exercised the power which it possesses in that respect. The courts cannot get such power until the State gives it to them by law.
The petition seems to regard the statutory provision for sequestration of defendant’s property as authority for a proceeding in rem against such property. There are two reasons why that part of the statute cuts no figure in this case. We have seen that it is unconstitutional and void. Even if the statute in that respect is. not void, the writ of sequestration cannot issue until after the judgment for. alimony is rendered. Prior to such judgment the plaintiff is not entitled to any lien, nor to £ £ any lawful right, claim or demand to or against ’ ’ the property described in the petition, as required by section 1770 of the Revised Statutes authorizing orders of publication. The court is not authorized by. the statute to make any order or decree with reference to any specific property. It can only render judgment for money as alimony.
Pennoyer v. Neff, supra, so much relied upon by the appellant, says (l. c. 727):
“The want of authority of the tribunals of a State to adjudicate upon the obligations of non-residents, where they have no property within its limits, is not denied by the court below; but the position is assumed, that, where*675 they have property within the State, it is immaterial whether the property is in the first instance brought under the control of the court by attachment or some other equivalent act, and afterwards applied by its judgment to the satisfaction of demands against its owner; or such demands be first established in a personal action, and the property of the non-resident be afterwards seized and sold on execution. But the answer to this position has already been given in the statement, that the jurisdiction 'of the court to inquire into and determine his obligations at all is only incidental to its jurisdiction over the property. Its jurisdiction in that respect cannot be made to depend upon facts to be ascertained after it has tried the cause and rendered the judgment. If the judgment be previously void, it will.not become valid by the subsequent discovery of property of the defendant, or by his subsequent acquisition of it. The judgment, if void when rendered, will always remain void; it cannot occupy the doubtful position of being valid if property be found, and void if there be.none.”
Bunnell v. Bunnell,
The Pennoyer case is there cited in support of that proposition.
We will now consider other cases which have been cited.
In Benner v. Benner,
Wesner v. O’Brien,
Harshberger v. Harshberger,
In all those cases cited from other states the statutes were so different from ours that the opinions of the courts thereon have no application here.
Hanscom v. Hanscom,
The court in the Hanscom case then proceeded to dispose of the question whether property could be reached in such suit for maintenance. It said:
“It is true, generally, that the holder of a legal demand must reduce his claim to judgment against the debtor, and in some way make it a lien upon the property sought to be reached, before he can institute proceedings to annul a conveyance made in fraud of his rights; but where the debtor has absconded, and cannot be reached by the process of the court, leaving behind him property, which, by reason of its situation or character, cannot be subjected to the payment of his liabilities in any proceeding at law, the creditor may resort to equity in the first instance, and in the same proceeding have his claim established, charged against the debtor’s property, and all obstructions in the way of its enforcement removed. It is peculiarly the рrovince of a court of equity to afford a remedy where the law affords none, and so, where the law is powerless to aid the creditor, by reason of the debtor’s absence, and the situation of his property, equity will assume jurisdiction, adjudicate the claim, and, by acting upon the property itself, adjust the rights of all parties to the proceeding, and afford the appropriate relief. .[Scott v. McMillen, 1 Lift. 302; Kipper v. Glancey,2 Blackf. 356 ; Peay v. Morrison, 10 Graft. 149; Pendleton v. Perkins,49 Mo. 565 ; Farrar v. Haselden, 9 Rich. Eq. (S. C.) 331; Greenway v. Thomas,*678 14 Ill. 271 ; Kamp v. Kamp,46 How. Pr. 143 .] In such a case the foundation of equitable jurisdiction is the inability of the law to enforce a legal demand; but where the dеbt or claim is not legal, but equitable, the jurisdiction does not depend upon adventitious facts, and is not affected -by- the presence or absence of the defendant. ’ ’
Pendleton v. Perkins,
Wherever the law gives a certain remedy as аgainst legal assets, i. e. assets which can be reached by the ordinary processes of the courts of law, then equity gives similar relief against equitable assets, which are beyond the reach of legal processes. In that matter it is said “equity follows the law.” But it is a perversion of that rule to hold that equity gives a remedy for anything as against equitable assets when the law gives none for the same thing as against legal assets.
The Colorado court did not determine the question whether the judgment for maintenance of the wife was such.as could be made a charge against the legal assets of the husband. It took thаt for granted without deciding it. How came, that court to make such an oversight ? That opinion itself explains it thus:
“It may therefore be considered as established in this .State that upon a proper cáse made, equity will award alimony, or separate maintenance,' to a wife, in a proceeding where no divorce is sought. This seems to be conceded, but the contention, as we understand it, is that a claim for alimony apart from divorce involves only a personal liability against the husband, and cannot be made a charge upon his property in the first instance; so that, for the purpose of subjecting his prop*679 erty to its payment, a prior personal judgment must be obtained against him. Upon our first examination of the case our views coincided with those of counsel. Our impression was that the court was without power, in this proceeding, to adjudge the amount which might be awarded to the plaintiff to be a charge /upon specific property, and that as the principal defendant had not been personally' served with summons, so that no judgment could be rendered against him, the suit must fail; but a more comprehensive and critical investigation has led us to a different conclusion; and in view of the heartless conduct charged against him, and the serious', hardship of the case if the plaintiff must be denied a remedy, we have not formed the opinion which we now-entertain reluctantly.” The italics are ours.
Murray v. Murray,
Blackinton v. Blackinton,
“The whole proceeding is for the regulation of a status. The incidents of that status аre various, some concerning the person, some concerning the support, of the petitioner or her child. The order to pay money is not founded on an isolated obligation, as in a case of contract or tort, but upon a duty which is one of those incidents. The status, considered as a whole, is subject to regulation here, although it involves relations with another not here, because such regulation is necessary rightly to order the daily life, and to secure the comfort and support, of the party rightfully living within the jurisdiction. It is quite true that these considerations may not suffice to give the decreе extraterritorial force, and that, in general, courts do not willingly pass decrees, unless they think that other courts at least ought to respect them. But that is not the final test. We think that*680 the statute was intended to authorize such decrees as that appealed from, and tacitly to adopt the rules as to service expressly laid down for divorce. We do not see any sufficient ground for denying the power of the Legislature to pass the act. We are therefore of opinion that the decree was within the power of the court, and can be carried out against the defendant’s property within the jurisdiction, and against his person if he be found here..”
We fail to see' how that case can be regarded as authority on the point under discussion here. There was no property described in the pleadings in that case. The judgment for alimony was upheld on thé ground that such alimony was a part of the res, i. e., the status of the marriage relation, a proposition directly opposed to the doctrine of our Missouri cases, and of the almost unanimous rule of the courts of other States. [See, Ellison v. Martin,
In Elvins v. Elvins,
There is nothing in that section, nor in section 2375, in regard to the judgment for alimony, nor in both of those sections construed together, which authorizes a proceeding in rem against the property of the defendant. And that is true whether the provision as to sequestration of property be considered valid or void.
The fact that in the above cаses of Ellison v. Martin, Moss v. Fitch and Elvins v. Elvins, the courts took a passing glance at this question without deciding it should not affect its present consideration.
We call attention to the fact that no relief was prayed against Walter-Chapman; but, if there had been, the case would not be different for the reasons above given.
We do not want to be understood as holding that Walter Chapman has any place in this proceeding under any theory of pleading.
-The judgment of the St. Louis Court of Appeals herein is reversed and that of the trial court is affirmed.
The foregoing opinion of Rot, C., is adopted as the opinion of the court.