78 Neb. 495 | Neb. | 1907
The question presented by this appeal is one of some importance, and has not heretofore been passed upon by this court. Tbe facts are substantially as follows: July
The sole question for determination is: Did the district court have jurisdiction, upon service by publication, to subject the interests of the nonresident husband in the Hall county land to the maintenance and support of his Avife and child?
1. It has been held that a court of equity Avill entertain an action brought for alimony, and Avill grant the same, although no divorce or other relief is sought, where the wife is separated from her husband Avithout her fault. Earle v. Earle, 27 Neb. 277; Cochran v. Cochran, 42 Neb. 612; Price v. Price, 75 Neb. 552. And it is clear that the district courts of this state, being courts of general equity jurisdiction, are not limited in the exercise of such jurisdiction by statute. Cochran v. Cochran, supra. However, the question presented by this record Avas not involved in the cases above cited. It is here sought, under the general equity pOAvers of the court, to appropriate property of a nonresident, Avhieh is situated Avitliin the jurisdiction of the court, to the maintenance of his Avife and child.
2. It is urged that service by publication is not authorized by statute in cases of this kind. Section 77 of the code provides that service may be made by publication “in
3. Neither can it be successfully contended that there was no “appropriation,” or that the property was not brought within the control of the court. “Control of the property by the court before the rendition of the judgment is essential to the jurisdiction to render it; and if rendered without such jurisdiction, it cannot be made valid by the subsequent seizure of property of the defendant. But, we do not understand it is necessary, in order to bring the property under the control of the court, that it shall be actually taken on attachment or other writ. Any authorized act by which the court takes charge of property, or asserts its control over it, is sufficient within the meaning of the rule, for the purpose of jurisdiction.” Benner v. Benner, 63 Ohio St. 220. In Murray v. Murray, 115 Cal. 266, 37 L. R. A. 626, it was said: “According to the common experience of mankind, the owner of property keeps some oversight of it, wherever situated, and will probably be apprised of the seizure thereof, and so warned of the purpose of the seizure. To accomplish this object the taking of property into the possession of a receiver is at least as well adapted as the similar taking by process of attachment, and it is common practice to apply property which has been attached in the course of an action
1. This court has held that service by publication is sufficient in proceedings substantially in rem. Fowler v. Broten, 51 Neb. 115; Anheuser-Busch Brewing Ass’n v. Peterson, 41 Neb. 897. But it is urged that this action is one in personam, and the court acquired no jurisdiction by constructive service. It is fairly well settled in this state that an action for alimony, in the strict sense of the term, is a proceeding in personam, and personal service must be had, or an appearance made, to authorize a personal judgment against the defendant. Dillon v. Starin, 44 Neb. 883, and cases cited. We concede the force of the rule above stated, but it is inapplicable to the facts of this case. Williams, J., answering a similar contention in Benner v. Benner, supra, said: “Cases are cited to sustain this contention which hold that, although ex parte divorce may be obtained on constructive service, alimony cannot be decreed unless the defendant appear, or has been served with process within the jurisdiction of the court. So far as we have examined them, these do not appear to be cases where the defendant had property within the jurisdiction of the court, which it was sought to reach, and have appropriated to the support of the wife, but those only where a general personal judgment for
The supreme court of the United States, speaking through Mr, Justice Field, in Pennoyer v. Neff, 95 U. S. 714, said: “So the state, through its tribunals, may subject property situated within its limits owned by nonresidents to the payment of the demand of its own citizens against them; and the exercise of this jurisdiction in no respect infringes upon the sovereignty of the state where the owners are domiciled. Every state owes protection to its own citizens; and, when nonresidents deal with them, it is a legitimate and just exercise of authority to hold and appropriate any property owned by such nonresidents to satisfy the claims of its citizens. It is in virtue of the state’s jurisdiction over the property of the nonresidents situated within its limits that its tribunals can inquire into the nonresident’s obligations to its own citizens, and the inquiry can then be carried only to the extent necessary to control the disposition of the property. If the nonresident have no property in the state there is nothing upon which the tribunals can adjudicate.”
Benner v. Benner, supra, is a case in point. 'The facts m that case are quite similar to those in the case at bar, and the supreme court of Ohio use expressions therein which thoroughly fit the facts of the case in hand: “Service by publication is authorized by section 5048 of the Revised Statutes, in an action by a wife for alimony and support of her child against the husband who deserted his family and became a nonresident of the state, where
Hanscom v. Hanscom, 6 Colo. App. 97, 39 Pac. 885, holds to the same doctrine. This language is used in the opinion: “The plaintiff seeks to charge her husband’s property with her alimony, and to set aside conveyances made in fraud of her rights. The suit is therefore a proceeding in rom, within the meaning of the statute; and the principal defendant being beyond the jurisdiction of the court, so that personal service of its process could not be had, it was proper to cause publication of the summons to be made, and by virtue of such publication the court became invested with jurisdiction to render such judgment against the property as the facts proved might warrant.” See, also, Osgood v. Osgood, 153 Mass. 38; Blackinton v. Blackinton, 141 Mass. 432, 55 Am. Rep. 484.
It must be borne in mind that the object of the proceeding is to enforce a duty which the husband owes to his family, not by seeking a personal judgment to be enforced by execution, but by proceeding against his property after the defendant puts it beyond the power of the plaintiff to procure a personal judgment against him. It is not the judgment for alimony which creates the husband’s liability. The judgment is but an adjudication determining the liability which arose by reason of the marital relation. In actions for divorce, jurisdiction upon a nonresident husband may be had by publication to determine the personal status of the parties and the right to
5. Defendant’s final argument is that, at the time this action was commenced, plaintiff resided in Adams county, and was not a resident of Hall county, where the real estate of her husband is situated, and, hence, Benner v. Benner, supra (a case where the wife resided in and brought suit in the county where the property was located), is inapplicable. Were this an action for divorce, defendant’s contention would be sound. The action being in equity and seeking to impound the defendant’s property, jurisdiction does not depend upon the domicile of the plaintiff, but upon the location of the property within the jurisdiction of the court. We see no reason for holding
We are convinced that the district court did not err in overruling the special appearance, and recommend that the judgment be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is
Affirmed.