58 N.J. Eq. 113 | New York Court of Chancery | 1899
Complainant aud defendant were married in New Jersey in 1879, and resided in this state as man and wife until 1881, when defendant left New Jersey and has never since resided here. In
The motion to discharge the writ is based upon two grounds —-first, that the arrest was an imprisonment for debt and prohibited by the constitution; second, that the decree for alimony and costs was void because defendant, not having been brought within the jurisdiction of the court, an execution or process upon the decree against defendant personally is a deprivation of his liberty within the provisions of the fourteenth amendment, to the federal constitution, that no state shall deprive any person of life, liberty or property without due process of law. Judgments of a state court may now be directly attacked as violating this amendment and be held void if rendered without due process of law. In Pennoyer v. Neff, 95 U. S. 714, 733 (1887), a judgment in personam against a non-resident was held void under this amendment when attacked collaterally, and inasmuch as the decisions of the United States supreme court control state courts as to its construction and application, a judgment within the terms of the amendment as so construed is no longer valid within the state, and its validity under this amendment may be impeached collaterally in an action in the state court upon the judgment. Eliot v. McCormick, 144 Mass. 10; Needham v. Thayer, 147 Mass. 536. If a bill in equity shows no right to relief a ne exeat issued thereon will be discharged on motion (Anschutz v. Anschutz, 1 C. E. Gr. 166), and if the decree for alimony in this' case is void under the fourteenth amendment the ne exeat should be discharged. In Hervey v. Hervey, 11 Pick. Ch. Pep. 166, I had occasion to examine the •question of the jurisdiction of this court to render a decree for .alimony against the husband where the wife was domiciled in this state, and the husband, although also domiciled here, could not be served with process within the state. I concluded that
This conclusion, which reaches to. the foundation of the decree for alimony, renders it unnecessary to examine the other question raised or the additional question suggested by an examination of the record, viz., whether the decree for alimony should regularly have been entered, when the notice served on defendant, under the statute and rules, failed to state that alimony was prayed,.and if not, whether the decree for alimony, having been made without notice or hearing, should be enforced by a ne exeat.
The ne exeat and the order therefor fixing bail at $1,000 being based on the decree for alimony and intended to secure the future performance of this decree, is therefore invalid and must be discharged. No costs will be allowed against the complainant.