44 Neb. 881 | Neb. | 1895
The record in this case discloses that the parties were married in Missouri in 1875. In 1879 they took up.their residence in Kansas. Some time thereafter the defendant in error came to the home of her mother in Nemaha county, in this state, and, after residing with her mother for some
Some of the assignments of error are directed against the admission of evidence. These assignments will not be noticed, for the reason that the case was tried to the court, and the admission of improper evidence was, therefore, not in itself reversible error. The assignment that the finding and judgment are not supported by sufficient evidence presents the questions which have been argued by-counsel.
Our statute (ch. 25, sec. 10, Compiled Statutes) provides that in all eases of divorce, alimony, and maintenance, when personal service cannot be had, service by-publication may be made as provided by law in other civil' eases under the Code of Civil Procedure. This statute is wholly ineffectual to sustain a judgment for alimony or maintenance based upon service by publication against a-, non-resident who does not appear in the action. It has-been many times decided in this state and elsewhere that a-judgment for alimony is a judgment in personam. It is perfectly clear upon principle, and thoroughly settled by the authorities, that while a state may provide for construe-tive service in a divorce case, so that the decree rendered will be valid as affecting the status of the parties, it is beyond the power of the legislature to confer jurisdiction to render a personal judgment against a non-resident in this-manner, and that a judgment for alimony based on such service is void. (Bunnell v. Bunnell, 25 Fed. Rep., 214 ; Rigney v. Rigney, 127 N. Y., 408; Beard v. Beard, 21 Ind., 321; Lytle v. Lytle, 48 Ind., 200; 1 Am. & Eng.
Reversed and remanded.