128 Misc. 309 | N.Y. Sup. Ct. | 1926
The proceedings were initiated by a sequestration order upon the property of the defendant pursuant to section 1171-a of the Civil Practice Act, which order, among other things, provides for payment of alimony and counsel fees during the . pendency of the action. Thereafter the summons and complaint were served by publication. Upon appeal to the Appellate Division
This motion is now brought to vacate all the provisions of the judgment, except that which decrees separation, and also involves the propriety of that part of the judgment which directs sequestration and payments out of the proceeds. On the part of the defendant, it is urged first, that no money judgment against him is valid, in personam, because no personal service was ever effected, and secondly, that sequestration is improper because proceedings therefor were taken after final judgment, and section 1171-a, it is argued, only authorizes such a course as a provisional remedy in the nature of attachment. It is clear, of course, that no judgment in personam against a defendant only constructively served can be sustained. The judgment, in addition to decreeing separation, provides for alimony, counsel fees and costs, not in the nature of an adjudication in personam, but one to be satisfied out of property of the defendant within the State. No such assets having been levied upon by the plaintiff prior to the final judgment, the question is whether section 1171-a supports the right to sequester, subsequent, as well as prior to, the final judgment of separation, and whether in that event all the moneys payable under the decree may be applied out of the avails. We may approach the solution of this rather difficult problem by first considering the extent of the undisputed jurisdiction of the court in the action.
There is no doubt that the court acquired jurisdiction to grant a decree of separation by constructive service. (Civ. Prac. Act, § 1167.) The constitutionality of such a procedure has been
A judgment for alimony and counsel fees, in an action where the defendant has been personally served, may be provided for in the final decree without any further notice beyond the mere summons and complaint, which in itself is sufficient notice that such a demand might be made as part of the relief. (Hecht v. Hecht, 14 Misc. 597.) But where process has been served constructively, the courts of this State have regarded the incidental judgment for alimony and costs as unauthorized because in personam. Thus in Rigney v. Rigney (127 N. Y. 408, 414; revd., 160 U. S. 531 on other grounds) it was held that “ A judgment for alimony and costs cannot be supported on the ground that they are mere incidents of and subordinate to' the right to a divorce, and the jurisdiction which is sufficient to support a decree changing the marital status of the plaintiff will not necessarily sustain a judgment for alimony and costs.”
In Burch v. Burch (116 App. Div. 865) it was decided that execution on a judgment for costs obtained in an action for divorce upon constructive service was improper. And in Baylies v. Baylies (196 App. Div. 677) a judgment for alimony as part of a divorce decree obtained upon such service was likewise pronounced improper. While in this respect the judgment in the instant case in terms binds only the property to be sequestered and thus renders the defendant immune from proceedings for comtempt, it nevertheless attempts to enforce it against property by a process analogous to execution. Whether such a procedure is justified depends upon
In an action for separate maintenance, the court, in Blackinton v. Blackinton (141 Mass. 432), declared that the' jurisdiction of the State over the marital status of the parties, in case of a defendant served by publication, carried with it the power to enforce the award of alimony out of the property of the defendant located within its borders. Referring to this subject, Mr. Justice Holmes said (at p. 436): “ The whole proceeding is for the regulation of a status. The incidents of that status are various,— some concerning the person, some concerning the support, of the petitioner or her child. The order to pay money is not founded on an isolated obligation, as in a case of contract or tort, but upon a duty which is one of those incidents. The status, considered as a whole, is subject to regulation here, although it involves relations with another not here, because such regulation is necessary rightly to order the daily life, and to secure the comfort and support, of the party rightfully living within the jurisdiction. * * * We are therefore of opinion that the decree was within the power of the court, and can be carried out against the defendant’s property within the jurisdiction, and against his person if he be found here.”
This case was cited in Haddock v. Haddock (201 U. S. 562) and in Finlay v. Finlay (240 N. Y. 429) but not with reference to the right to enforce alimony by sequestration subsequent to judgment. It has, however, received full approval of the Court of Appeals of the District of Columbia in the recent case of Thompson v. Tanner (287 Fed. 980) in which the court (at p. 985) justified a decree for alimony based upon constructive service enforcible only against the property of the husband within the jurisdiction, as follows: “ The jurisdiction thus acquired over the property of the defendant arises from the peculiar status of the parties. It is the marriage status which constitutes the res, making a divorce proceeding one in rem, and not an action in personam. An order to sequestrate property of the absent defendant, within the immediate jurisdiction of the court, is quasi in rem, issued to satisfy a personal claim on specific property. Thus the court acquires jurisdiction to render a judgment essentially in rem affecting such property, notwithstanding the absence of the owner from the state, and the impropriety of rendering a personal judgment against him. The judgment is not effective against the world, but only the interest of the defendant in the property.” (Citing Benner v. Benner, 63 Ohio St. 220.)
The rule is different in suits for divorce, where “ the purpose of the actions is to dissolve the marital relationship, and not to protect or support the wife in her condition as such.” (Naumer v. Gray, supra, 533.) This distinction, indicated by mere dictum in the latter case, has been definitely established in Mayper v. Harlan (242 N. Y. 537). That case involved a claim of an attorney for a wife who had obtained an absolute divorce, for legal services rendered to the latter in that action. The Appellate Term (125 Misc. 123) endeavored to define the husband’s obligation in that regard to be the same as if the action had resulted not in a divorce, but in a separation. The Appellate Division reversed this determination (215 App. Div. 767) on the authority of the Lanyon case, and the effect of the affirmance in the Court of Appeals was definitely to establish the principle that the obligation of a husband for legal and other fees and expenses furnished to a wife in a successful
When the Court of Appeals, in passing generally upon the right of sequestration without notice, interpreted the statute, it likened the remedy to attachment proceedings. It does not follow that in adopting this analogy, it necessarily limited the scope of the section to the stages prior to final judgment, although a narrow construction might sustain such limitation. Considering the difficulties the statute was intended to obviate, effect should be given to the broad and beneficent purposes contemplated by the Legislature, if this can be done without encountering constitutional obstacles. Thus viewed, the law was seemingly intended to provide a remedy in cases where personal service could not be effected. Prior to its adoption, the remedy of sequestration was available to the plaintiff, under section 1171, but only if jurisdiction in personam had been acquired. Section 1171-a was intended to afford the remedy where personal service could not be effected by reason of the absence of the defendant from the State. Sequestration proceedings must be deemed mere steps in the principal action, not special proceedings supplementary thereto. In so construing them, I am following the analogy of proceedings in contempt, which must also be entitled as in the action. (Jewelers’ Mercantile Agency v. Rothschild, 155 N. Y. 255; Clark v. Clark, 195 id. 612.) It may, therefore, be held, in line with this broad construction of the statute, that the decree of separation as such does not necessarily terminate the action.
The judgment here provides for sequestration and payment of alimony, etc., out of the property obtained. Of the right to sequester after the decree, I am in little doubt. Whether it is competent to permit the payment of moneys out of such property without notice is another matter. In the case of Minor v. Marysville Land Co. (229 Mich. 72) the right to both sequestration and appropriation was sustained. That case was a sequel.to a matrimonial action, in which jurisdiction was acquired by substituted service, and in which, after judgment and without prior attachment, the
“ It is well understood, of course, that in cases of substituted service the court cannot render a personal judgment for alimony or for the costs of suit. But the statute in question authorizes and requires the court to make a provision in lieu of dower. There is no question as to what the legislature intended. It expressly authorizes the court to do what was done in this divorce suit. The only question is whether the statute is in violation of the due process clause of the Constitution.
“ In Pennington v. Fourth National Bank, 243 U. S. 269, the court said:
“ ‘ The Fourteenth Amendment did not, in guaranteeing due process of law, abridge the jurisdiction' which a State possessed over property within its borders, regardless of the residence or presence of the owner.’
“ And in Cooley on Constitutional Limitations (7th Ed.), p. 584, the author, referring to the power of courts in divorce cases to render a valid decree against property where the owner is not personally served with process and does not appear, says:
“ ‘ 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.’ ”
The Michigan case just cited thus authorizes not only seizure, but also appropriation after final judgment. I hesitate, however, to follow this conclusion in so far as to direct payment, without notice, out of property sequestered, in view of the utterance of Judge Crane in Matthews v. Matthews (supra, 34) in construing the language of section 1171-a: “ It must- be conceded that no judgment could be obtained for the disposition of the sequestered property without personal or constructive service upon the defendant. We have no such thing in our practice; in fact there is no such thing in existence in the law as a personal judgment without service or notice of some kind, and the only ldnd of notice that we recognize in this State for the obtaining of a judgment is personal service, substituted service or the service by publication of the summons in the action. It necessarily follows that when the word ‘ order ’ is thus linked up to the word ‘ judgment ’ so that the disposition of the sequestered property is to be ‘ by order or judgment,’ the
The motion will, therefore, be granted to the extent here indicated. Settle order.