This appeal involves a divorce action in which the summons was served upon defendant-husband, Raymond S. Gill, by publication. Plaintiff, Mary A. Gill, the appellant herein, obtained an order for publication based on her affidavit that defendant was secreting himself within the state to avoid personal service. Her affidavit stated:
“That although your affiant knows that defendant is living somewhere in the Minneapolis area, she has no knowledge as to his place of residence or the nature of his employment, if any. Defendant makes phone calls to your affiant on infrequent occasions but refuses to disclose same.
“That your affiant has informed defendant of the institution of this action and the necessity of serving papers for commencement thereof, but despite the fact that defendant expresses no desire to contest the suit, he is disinclined to reveal his whereabouts for fear of being ‘locked up’. Acting under the advice of counsel, your affiant has endeavored to explain the situation to defendant in the hopes of dispelling his apprehensions but such efforts have been to no avail.
“That both your affiant and her attorneys have spoken with defendant’s parents making similar explanations to them for the purpose of locating defendant but again without result, the reason being that ‘he is not a criminal’.
“That by reason of the foregoing, defendant is willfully concealing himself within the state for the purpose of evading service of process and your affiant knows of no way of effecting such service except by publication pursuant to statutory provision therefor.”
Defendant did not appear personally or through an attorney, the only service of process being substitute service by publication pursuant to Rule 4.04(3), Rules of Civil Procedure, which provides for such service “[w]hen the action is for divorce or separate maintenance and the court shall have ordered that service be made by published notice.”
After trial the district court found that the facts stated in the affidavit for publication were consistent with the testimony offered at the trial; that defendant was secreting himself within the state to avoid personal service; and that plaintiff was entitled to an absolute divorce and to the custody of the parties’ minor children. However, the court specifically reserved awarding support and alimony “until such
Plaintiff’s appeal is limited to one question: Whether the trial court has jurisdiction to award alimony and support where service of process is made by publication pursuant to a court order based upon an affidavit of the plaintiff stating that defendant is a resident but is secreting himself within the state to avoid personal service.
The question whether such a service confers jurisdiction to render a personal judgment for alimony was directly decided in this state in Roberts v. Roberts,
Mr. Justice Bunn, in Roberts v. Roberts,
“* * * There is nothing in any case in this state that denies that such a service [by publication when a resident defendant conceals himself within the state to avoid personal service] is due process of law and confers jurisdiction in an action
in personam,
or to render a personal judgment in an action
in rem.
It seems to us that statutes authorizing service by publication in such cases, are well within the power of the state to legislate as to its own citizens, and that, on principle and the weight of authority, a duly-authorized service by publication on a defendant in a divorce action who is a resident of and within the state, but cannot be found therein because he conceals himself to avoid the service of process, confers jurisdiction to render a personal judgment for alimony. The exact question is discussed at length in the note to Raher v. Raher, [
Thus, in substance, the Roberts case holds (
“A personal judgment or decree for alimony rendered in a divorce case against a nonresident of the state where the only service is by publication of the summons, is void, as is such a judgment rendered where the defendant is a resident of this state and can be found therein and the only service is by publication. But where the defendant is a resident of this state, but cannot be found therein, because he secretes himself within the state so service cannot well be made,
In order for the Roberts case to be presently binding in this court, the Minnesota statutes under which the Roberts case was decided must be similar in content to Rule 4.04, Rules of Civil Procedure, and the holding must not transgress present-day concepts of due process.
The first Minnesota publication statute, G. S. 1866, c. 66, § 49, provided in part:
“When the defendant cannot be found within the state [as evidenced by a sheriff’s return and the affidavit of plaintiff] * * * such court, or judge, may grant an order that the service be made by the publication of the summons in either of the following cases:—
‡ * 4: if: %
“Second. When the defendant being a resident of this state has departed therefrom with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with like intent;
“Third. When the defendant is not a resident of the state, but has property therein * * *.
“Fourth. When the action is for divorce in the cases prescribed by law.”
L. 1869, c. 73, § 1, amended and modified the 1866 statute by eliminating the requirement that the court make a finding as to the sufficiency of the complaint before ordering service by publication. L. 1903, c. 341, amended the 1869 statute to provide for quasi-in-rem jurisdiction over resident individuals who have departed from the state or cannot be found.
The law of Minnesota continued in similar form in Minn. St. 543.11 and 543.12 until 1952 when Minnesota adopted Rule 4.04, Rules of Civil Procedure, which provides in part:
“Such service [by publication] shall be sufficient to confer jurisdiction:
“ (1) When the defendant is a resident individual having departed from the state with intent to defraud his creditors, or to avoid service, or keeps himself concealed therein with like intent;
“(3) When the action is for divorce or separate maintenance and the court shall have ordered that service be made by published notice.”
It is clear that in content Rule 4.04 is substantially the same as the statute in effect when Roberts was decided and thus empowers Minnesota courts to exercise personal jurisdiction by means of service through publication over a resident defendant who conceals himself within the state for the purpose of avoiding personal service unless the holding in Roberts contravenes the due process clause of the Federal Constitution.
Four frequently cited United States Supreme Court cases establish the permissible limits under the due process clause. In the first, Pennoyer v. Neff,
The second case, Pennington v. Fourth Nat. Bank,
The third case, Milliken v. Meyer,
“* * * is alone sufficient to bring an absent defendant within the reach of
The last of the four cases wherein the Supreme Court considered whether service by publication met the requirement of due process is Mullane v. Central Hanover Bank & Trust Co.
Further, while the court agreed that publication is not a reliable means of acquainting interested parties with the fact that their rights are before the court, it observed that it has not hesitated “to approve of resort to publication as a customary substitute in another class of cases where it is not reasonably possible or practicable to give more adequate warning.”
Following these authorities, does the Minnesota rule violate the due process clause? We think not. The assertion of such jurisdiction by publication in a divorce suit over a resident who hides himself is justified by the state’s power over its residents. 1 Such service, being the only service possible in this case, is in fact dictated by necessity.
Therefore, following the Roberts case and the guideline of due process, we hold that Rule 4.04(3), Rules of Civil Procedure, empowers Minnesota courts in an action for divorce to exercise personal jurisdiction over a resident defendant served by publication subsequent to the filing of an affidavit stating that the defendant is a resident secreting himself within the state to avoid personal service and the issuance of an order granting publication. When these are the facts, there is no reason why personal jurisdiction should not attach in divorce cases.
The Roberts case has been well received. It is cited in support of the following statement in 24 Am. Jur. (2d) Divorce and Separation, § 543:
“Generally, most courts support the view that a personal judgment may be rendered against a resident defendant who has been served constructively by publication in accordance with the local statute governing such service. Accordingly, if the defendant husband in a divorce action is a resident of, or domiciled in, the state in which the action is brought, a court may, pursuant to statutory authorization, render a personal judgment against him for alimony upon constructive service even where he has
The Roberts case is also cited for the statement in 27B C. J. S., Divorce, § 247:
“* * * An attempted service by publication on a resident defendant who is personally present within the state and can be found therein confers no jurisdiction to render a personal judgment for alimony, except where he cannot be found therein because he conceals himself to avoid the service of process.” (Italics supplied.)
In Dirksen v. Dirksen, 72 N. Y. S. (2d) 865, defendant had been served by means of publication and the referee held that no grant of alimony could be made in the absence of personal service of process upon the defendant. In so holding, the referee relied on an earlier case, May v. May,
“* * * This latter decision [Milliken v. Meyer,
The attitude of the Minnesota court regarding service by publication is exemplified in Wiik v. Russell,
“* * .1= That service of summons by publication upon a resident of the state, who is present therein, may be made when such person either conceals himself for the purpose of avoiding service or when, after the exercise of due diligence in searching for him, neither he nor any place of his residence can be found in the state at which service can be made, appears to be settled by the cases of Van Rhee v. Dysert,
It is unnecessary to further extend this opinion except to state that the order, decree, and judgment of the court below are affirmed, except in so far as they provide that the court is reserving the ordering of support and alimony until such time as it shall have obtained personal jurisdiction over the defendant through personal service, which holding is reversed. The case is remanded to the trial court to order support and alimony pursuant to the jurisdiction acquired on the service of publication in the instant case and to render a personal judgment therefor.
Affirmed in part and reversed in part.
Notes
The general rule is that a court has no jurisdiction to award a personal judgment for alimony in a divorce action against a
nonresident
if there is no personal service of process in the action within the state and defendant does not appear, it being insufficient that there has been service by publication or by personal service in another state. 2 Nelson, Divorce and Annulment (2 ed.) § 14.12, and cases cited; Allegrezza v. Allegrezza,