130 Ga. 610 | Ga. | 1908
(After stating the facts.)
The question as to the validity of a judgment in personam rendered by a court of this State against a resident of another State, without personal service upon, or appearance bjr, the defendant, came up for consideration and decision at an early date in the history of this court, in the case of Dearing v. Bank of Charleston, 5 Ga. 497 (48 Am. D. 300), in which there is a luminous and. able discussion of the subject by Nisbet, J., who delivered the opinion of the court. It was there held: “The courts of this State have no extra-territorial jurisdiction, and can not make the citizens of foreign States amenable to their process, or conclude them by a judgment in personam, without their consent.” “A judgment in personam, rendered against an inhabitant of a foreign State, in a cause wherein he did not appear, although notice was served upon him by publication, under the 2nd rule in equity,” was “held to be a nullity as to him.” The question was again before the court, in Adams v. Lamar, 8 Ga. 83, wherein the same learned judge delivered the opinion, and in which the principles announced in the Bearing case were restated and followed. There are subsequent decisions of this court to the same effect, among them being King v. Sullivan, 93 Ga. 621 (20 S. E. 76), wherein the case of Pennoyer v. Neff, 95 U. S. 714 (24 L. ed. 565), which is perhaps the leading case upon the subject in this country, was cited and followed, “in which it was held that a personal judgment, rendered by a State court against a non-resident of the State, in an action upon a money demand,'was without validity, where the defendant was served by publication, but upon whom no personal service of process within that State was made, and who did not appear.” See also Reynolds & Hamby Co. v. Martin, 116 Ga. 495 (42 S. E. 796). Although this court has never positively decided that this principle is applicable to a judgment for alimony, rendered in a divorce suit against a non-resident defendant, in which
In Cooley’s Constitutional Limitations (7th ed.), 584-5, the learned author says: “But in divorce cases, no more than in any other, can the court make a decree for the pajunent of money by a defendant not served with process, and not appearing in the cause, which shall be binding upon him personally. It must follow, in such a case, that the wife, when, complainant, can not obtain a valid decree for alimony, nor a valid judgment'for costs. If the defendant had property within the State, it would be competent to provide by law for the seizure and appropriation of such property, under the decree of the court, to the use of the complainant ; but the legal tribunals elsewhere would not recognize a decree for alimony or costs not based on personal service or appearance. The remedy of the complainant must generally, in these cases, be confined to a dissolution of the marriage, with incidental benefits springing therefrom, and to an order for the custody of the children, if within the State.” It has been held, however, in some cases that a decree or judgment for alimony, based upon constructive service only, is valid as against property of the defendant husband which is within the territorial jurisdiction of the court, and is specifically proceeded against in the divorce proceeding and described in the petition for divorce and alimony, and from which the alimony is set apart, or upon which the judgment therefor is decreed to be a lien, it being held that as to such property such a proceeding is in rem. Harshberger v. Harshberger, 26 Iowa, 503 ; Twing v. O’Meara, 59 Iowa, 326 (13 N. W. 321) ; Wesner v. O’Brien, 56 Kan. 724 (44 Pac. 1090, 32 L. R. A. 289, 54 Am. St.
In the case with which we are dealing, however, it is perfectly clear that the judgment for temporary alimony and attorney’s fees is not, in any sense, a judgment in rem, but is purely a judgment in personam. The court did not have in its grasp any property belonging to the non-resident husband; and did not even attempt to render a judgment, in the nature of a judgment in rem, against any property of the defendant within its territorial jurisdiction. While the petition alleged that the defendant had an interest in the estate of his deceased father, which estate, according to the allegations of the petition, was in the county where the suit was brought, and prayed that the administratrix upon this estate should be made a party to the proceeding, and that permanent alimony should be awarded the plaintiff out of such interest, no effort was actually made to bring this interest of the defendant, in such estate before the court. The administratrix was not made a party to the case, and process was not even prayed against her. Whether she could, under the laws of this State, have been made a party to the proceeding, for the purpose indicated in the petition, and whether, if she had’been, the distributive share of the non-resident husband in the estate of his deceased father, in her hands as administratrix, could have been reached by a judgment for temporary alimony, it is useless to inquire. It appears from the opinion in Smith v. Smith, supra, that this could not have been done under the law in the State of Vermont, when that case was decided. What could have been done by the plaintiff in the divorce proceeding which is before us, or what might have been done therein by the court, under a different set
We have not overlooked the contention of counsel for the defendant in error, that the garnishee can not, in her bill of exceptions, attack the validity of the judgment for temporary alimony and attorney’s fees, for the reason that the record does not show that the question as to the validity of this judgment was raised in the court below. It is true that the record does not show that this question was raised upon the trial, by an objection to the admission of this judgment in evidence, or by a motion to rule out the record of the divorce proceeding, including this judgment, or •otherwise. Nor does it show what the contentions of counsel for the garnishee were, in the argument iipon the question of the sufficiency of the evidence to authorize a judgment, -against her. But if the evidence offered by the plaintiff for the purpose of proving she had obtained a judgment against the principal defendant clearly showed, as we have seen it did, that that which she relied upon as being such a judgment was a mere nullity, then the evidence before the court did not authorize a judgment against the garnishee, and counsel for the garnishee could so contend in the oral argument before the trial judge; and when the judgment against the garnishee had been rendered, she could present this contention in her bill of exceptions. It Was not incumbent upon the garnishee to object to the introduction of the record in the divorce proceeding, upon the ground that it appeared therefrom that no valid judgment for alimony and attorney’s fees could be rendered therein; and it was not to her interest to do so. It certainly was to her interest that the record of the divorce suit leading up to the alimony judgment should be introduced, if that judgment was to be offered in evidence, as it was this record which showed such judgment to be absolutely void.
In reaching our conclusion that the judgment of the lower court should be reversed, we have not dealt with one feature of the case, because it was not reached by any assignment of error in the bill of exceptions. It clearly appears from the record of the divorce case that the non-resident defendant therein was' never served, even constructively by publication, with the application for temporary alimony and attorney’s fees, as such application was not embraced in the original petition, and the judgment granting the application was rendered on the same day that the petition was so amended as to pray for such alimony and fees. It has been held that even where a resident defendant in a divorce suit has been regularly served, he is entitled to notice of a subsequent application for temporary alimony; and the same principle would seem to apply in a suit for divorce against a non-resident defendant. Judgment reversed.