Lead Opinion
It is a settled principle that the courts of this State have the authority to seize the property of a non-resident defendant, located within the State, and apply it to the payment of his debts by a judgment or decree in rem. Dearing v. Bank of Charleston, 5 Ga. 497, 513 (48 Am. D. 300); Adams v. Lamar, 8 Ga. 83; Molyneaux v. Seymour, 30 Ga. 440 (76 Am. D. 662); Forrester v. Forrester, 155 Ga. 722 (118 S. E. 373); Jackson v. Jackson, 164 Ga. 115 (137 S. E. 827); Edwards Mfg. Co. v. Hood, 167 Ga. 144 (145 S. E. 87); Pendley y. Tumlin, 181 Ga. 808 (184 S. E. 283) ; Pennoyer v. Neff, 95 U. S. 714 (24 L. ed. 565). While ordinarily this jurisdiction must be brought into play by the statutory process of attachment, it has been held that where, as in the present case, the claim asserted against the non-resident is for alimony, a court of equity may be resorted to for this purpose. Forrester v. Forrester, supra; Grimmett v. Barnwell, 184 Ga. 461 (192 S. E. 191, 116 A. L. R. 257). In such case the jurisdiction of the court is confined to the rendition of a judgment on the cause of action asserted against the property found within its jurisdiction. The courts of this State have no extraterritorial jurisdiction and accordingly can not render a personal judgment against a nonresident defendant, unless he is found and personally served within
While in some cases a court of equity having jurisdiction of the person of a defendant may exercise jurisdiction as to property, though situated without the State (Mitchell v. Bunch, 2 Paige Ch. 606, 22 Am. D. 669; Carroll v. Lee, 3 Gill & J. 504, 22 Am. D. 350; Burnley v. Stevenson, 24 Ohio St. 474, 15 Am. R. 621), this principle would not authorize the courts of this State to affect or
Lead Opinion
A petition by a wife for alimony, in a superior court of this State, against her non-resident husband, which does not disclose that the defendant has any property situated in this State, subject to the jurisdiction of the court, to be applied to such claim, states no cause of action. The fact that the petition also proceeds against a person resident of the county of the suit, who, under the terms of a will executed in another State and in respect to property situated in such other State, sustains the relation of trustee to the non-resident husband, does not give the court jurisdiction of the defendant or his property, it not being alleged that such trustee has in her possession in this State any property belonging to such defendant.
It was further alleged, that $1200 per year would be a reasonable *Page 774
amount of alimony, with $1000 as attorney's fees; that "it is necessary, in order to properly protect the rights of petitioner, on account of the peculiar circumstances of the case, for the court to appoint a receiver to receive, marshal, and impound the assets of said estate of George W. Hefley and the share of the rents, issues, profits, and/or proceeds of said estate going to George Andrew Nix;" that "such receiver be authorized and required by appropriate order of this court to marshal and impound such interest of defendant George Andrew Nix in said estate, and that such receiver shall be required to collect and hold all such rents, issues, profits, and/or proceeds which now may be in the hands of such trustee or which may hereafter come into her hands as such trustee, subject to the order of the court;" that "petitioner is advised and believes that the trustee may, unless prevented from so doing by order of this court, make such disposition of the corpus of said estate going to petitioner's husband as will cut off and preclude payment of the claim of petitioner, by putting her brother in possession of an interest in said estate; that such an act is within the power of the trustee ordinarily, but that such act, in the light of petitioner's claim for permanent alimony, would be illegal, unfair, and unjust, and such an act of said trustee in putting her brother into possession of an interest in said estate would only be the result and consummation of a scheme of collusion between said trustee and her brother to avoid payment of petitioner's claim for permanent alimony;" that the trustee is vested with full legal title to all of the property of the estate and to the income thereof, and "the situs of the place where all funds from said Hefley estate going to George Andrew Nix are payable is governed by the law as to situs where funds are payable in attachment and garnishment in Georgia." The prayers of the petition were, (a) for process requiring the defendants to appear at the next term of the superior court, to answer the petition; (b) for judgment quasi in rem against George Andrew Nix for permanent alimony of $1200 per year and $1,000 attorney's fees; (c) that said sum be rendered as a judgment quasi in rem against the interest of George Andrew Nix, cestui que trust "in estate of George W. Hefley, as described in the within petition; and that petitioner have and recover of defendants a special lien upon one-fourth interest in said estate of George W. Hefley, together with a special lien upon one-fourth interest *Page 775
in the rents, issues, profits, and/or income of said estate of George W. Hefley, in the hands of Mrs. Elizabeth Nix Fain as trustee of said estate, her successors or assigns, to be administered;" (d) that the trustee be enjoined from putting George Andrew Nix into possession of any "interest in the corpus of the estate of George W. Hefley, deceased, and that she be . . enjoined from changing in any manner the status of the title to said interest of George Andrew Nix in said estate;" (e) that a receiver be appointed "to seize, collect, hold, and impound one-fourth interest of the net rents, issues, profits, and/or proceeds from the estate of George W. Hefley, . . and hold the same subject to the further order of this court;" (f) that service be perfected upon defendant Nix by publication; and (g) for general relief. At interlocutory hearing the judge overruled a demurrer to the petition, and after hearing evidence granted an injunction. The defendant excepted to these rulings.
It is a settled principle that the courts of this State have the authority to seize the property of a non-resident defendant, located within the State, and apply it to the payment of his debts by a judgment or decree in rem.Dearing v. Bank of Charleston,
While in some cases a court of equity having jurisdiction of the person of a defendant may exercise jurisdiction as to property, though situated without the State (Mitchell v. Bunch, 2 Paige Ch. 606, 22 Am. D. 669; Carroll v. Lee, 3 Gill J. 504, 22 Am. D. 350; Burnley v. Stevenson,
Judgment reversed. All the Justices concur, except
ATKINSON, Presiding Justice, who dissents on the theory that a proper construction of the petition shows that the trustee resident in Georgia has possession of intangible property which follows the person of the trustee, and this would confer jurisdiction on the court to render a judgment in rem as against the non-resident beneficiary. *Page 778
Dissenting Opinion
who dissents on the theory that a proper construction of the petition shows that the trustee resident in Georgia has possession of intangible property which follows the person of the trustee, and this would confer jurisdiction on the court to render a judgment in rem as against the non-resident beneficiary.