Middleworth v. McDowell

49 Ind. 386 | Ind. | 1875

Worden, J.

Complaint by the appellants against the appellee. Demurrer to the complaint for want of sufficient facts sustained, and exception. Final judgment for the defendant.

The case made by the complaffit is this: The plaintiff, Mary E., was formerly the wife of the defendant, McDowell, but she obtained a divorce from him in the district court of Wapello county, Iowa, and has since intermarried with her co-plaintiff, Archibald Middleworth. In the proceedings for •divorce, the defendant was notified by publication and not by personal service, and he did not appear thereto, but made default. In that proceeding, the plaintiff, Mary E., recovered a judgment or decree for alimony in the sum of five hundred dollars against the said McDowell. The record does not show whether McDowell was a resident of the State of Iowa at the time of the proceeding for divorce and alimony, but the infer•ence is that he was not; otherwise it would seem that he should have been served with process. Nor is any statute of Iowa shown authorizing a personal judgment, as for alimony, ■on publication, without other service of process.

This action was brought on the judgment for alimony thus rendered, and the question arises, whether, on the facts above ¡stated, the plaintiffs were entitled to recover.

It will be seen from the statement of the case, that the question does not arise, whether if McDowell had been a resident of Iowa at the time of the proceedings in the divorce case, and if there was a. statuté of that state authorizing personal judgments on publication, the judgment would be regarded as valid elsewhere. We assume that McDowell was not a resident of Iowa at the time of the proceedings in the divorce •case, first, because that may be inferred from the fact that he was notified by publication only; and, secondly, if he was then a resident of that state, the fact should be made to appear affirmatively, in order that he be bound by the judgment for ali- ■ mony, he having been notified by publication only, and not Raving appeared to the action, or otherwise submitted to the jurisdiction of that court. If McDowell was not a resident of Iowa, it is not very material what may have been the statute of that state in respect to notifying parties by publication, inasmuch as non-residents could not be affected thereby, to the extent of making personal judgments against them, founded •on publication merely, valid in any other jurisdiction.

In Beard v. Beard, 21 Ind. 321, it was held to be competent for the legislature to authorize the courts of the State to render personal judgments for alimony, in divorce cases, upon •constructive notice, against citizens of the State, but that if; ■could not authorize such judgments, upon such notice, against the citizens of another state, unless the latter submit to the jurisdiction of our courts by voluntarily appearing to such action therein. See, also, upon this subject, the case of Lytle v. Lytle, 48 Ind. 200.

Whatever may be the effect given to the judgment for alimony in the state where it was rendered, it can have no force-out of that state, for the reason that the court, by the publication, acquired no jurisdiction of the defendant which authorized it to render a personal judgment against him. This view is fully sustained by the cases of D’Arcy v. Ketchum, 11 How. (U. S.) 165, and Board of Public Works v. Columbia College, 17 Wal. 521.

The court below committed no error in sustaining the «demurrer to the complaint.

The judgment is affirmed, with costs.