Harshberger v. Harshberger, 26 Iowa 503

Harshberger v. Harshberger

26 Iowa 503 | Iowa | 1868

Cole, J.

1.Alimony: Jurisdiction or district court, I. Under our statute, the District Court in the county where the plaintiff resides has jurisdiction of a^ cases divorce and alimony, and of guardianship connected therewith. Rev. § *5052532. It is also provided, that, when a divorce is decreed, the court may make such order in relation to the children and property of the parties, and the maintenance of the wife, as shall be right and proper. Sec. 2537. The action for divorce and alimony then was properly brought in Mahaska county, where the plaintiff resided. The District Court of that county having jurisdiction of the cause of action, it might rightfully enforce any lien con nected with the subject matter of the action, although the real property, upon which such lien was claimed and enforced, was situated in another county. The principle of this decision has been several times applied by this court. Carnes v. Crandall, 4 Iowa, 151; Breckinridge v. Brown, 9 id. 396; Cole v. Connor, 10 id. 299; Finnagan v. Manchester, 12 id. 521. But, further than this, even if the suit was brought in the wrong county for the enforcement of the lien, it might, nevertheless, be there prosecuted to a termination, unless the defendant before answer demanded a change to the proper county. Bev. § 2802. No independent action for alimony can be brought; it must be connected with and follow a divorce. Bish. on Mar. and Div. § 562, and authorities cited. The District Court of Mahaska county having had jurisdiction of the cause, both as to divorce and alimony, its judgment therein is binding upon the parties. It will be borne in mind, as shown by the statement preceding this opinion, that the plaintiff, in the action for divorce and alimony, specially described the land as the property of the defendant, and asked a specific lien thereon for the satisfaction of her claim for alimony. This was allowed and adjudged by the court. That judgment fixed the rights of the parties to the land, as between themselves, and gave to the plaintiff in that action a lien upon it for the payment of her alimony.

Service of notice by publication may be made in actions *506for divorce. Rev. § 2831, subdiv. 8. Alimony is an incident to divorce, and can only follow it, and the statute authorizing service of notice by publication in an action for divorce, cannot fairly be construed to limit the power of the court, where service is thus made, to simply granting a divorce. It has jurisdiction of the cause, and may make all proper orders as to alimony, the custody of children, etc., which are incident to the divorce. Of course, its orders as to alimony, when the service is by publication, would be binding only so far as the subject matter out of which the alimony thus allowed was within its jurisdiction. If the court, upon such service, should render a judgment for so many dollars as alimony, such judgment would not be held conclusive, and, perhaps, not even valid in a foreign jurisdiction. Darrance v. Preston, 18 Iowa, 396. The filing of a petition affecting real estate creates a lis pendens under our statute. Rev. §§ 2842, 2843.

2 - attaching creditor. II. As we have already seen, the judgment allowing to Mary E. Harsliberger a lien upon the land for her alimony was v£|Rd and binding, as between herself and per ]lus]3ari(j) the defendant in that action. All the interest he had in the land, then, was the ownership of it, subject to such lien. And we have frequently held that an attaching creditor acquired no better right to the property attached, than the defendant had when the attachment took place. Norton, etc., v. Williams, 9 Iowa, 528; Bell v. Evans, 10 id. 353; Thomas v. Hill-house, 11 id. 61; see also, Drake on Attachment, § 223. The attaching creditor, therefore, only acquired a lien upon the title held by C. M. Harsliberger; and that title was subject to the lien of the judgment for alimony.

It is objected further, that the evidence contained in the transcript does not show that C. M. Harshberger, the defendant in this action, is the same person as Christopher *507Harshberger, tbe defendant in tbe action for divorce. The District Court found that it was the same person, and as there is no showing in the transcript that we have all the evidence, such finding is conclusive upon us.

Affirmed.