Smith v. Smith

74 Vt. 20 | Vt. | 1901

Start, J.

The court below held that it did not have jurisdiction to decree the payment of money to the libellant as alimony. This holding was correct. The process was not served upon the respondent in this state, and he did not appear in the cause by himself or attorney. The only notice of the pendency of the libel was by publication, under V. S. 2682. This did not give the court jurisdiction of the person of the respondent, or of his estate that was not brought under the control of the court by the process. A decree for the payment of money as alimony is a decree in personam, and is void without personal service upon the respondent, or without his appearance. In Rigney v. Rigney, 127 N. Y. 408, 28 N. E. 405., 24 Am. St. Rep. 462, it is held that although a suit for a divorce is in the nature of a proceeding in rem, or quasi in rem, in so far as it affects, the marital status of the parties, as to alimony and costs it is a proceeding in personam, and that an award of alimony and costs against a non-resident defendant, who was not served with process within the jurisdiction, and did not appear in the action, does, not bind him. In 1 Ency. Pl. & prac. 413, numerous cases are cited in support of the rule that, although a divorce ex parte may be obtained on constructive service, no alimony can be decreed unless the defendant appears in person or by attorney, or has been duly served with process within the jurisdiction of the court.

In common-law actions it is held that a money judgment against a non-resident, without service of the process upon him in this state, or appearance, is inoperative, except for the purpose of subjecting the property attached on the original writ to execution. Price v. Hickok, 39 Vt. 292. A decree for the payment of money as alimony stands on no different ground, but is governed by the principles that control in an ordinary judgment for the recovery of money. Prosser v. Warner, 47 Vt. 667, 19 Am. Rep. 132. Judge Cooley says that in divorce cases, no- more than in any other, can the court make a decree for the payment of money by a defendant not served with process, and not appearing in the case, which should be binding upon him personally. It follows in such cases that the wife, when complainant, cannot obtain a valid decree for alimony, nor a valid judgment for costs. Const. Rim. (6th Ed.) 499.

It appears that E. W. Smith, a resident of this state, as executor of an estate situate in the state -of New Hampshire, under an appointment of the probate court for the state of New Hampshire, has in his hands money which has been decreed to the respondent as his distributive share of the estate; and the libellant’s counsel contends that the court has jurisdiction to- decree the payment of this money. This contention is not sound. The court had no more power to- decree the payment of this money than it had to decree a payment of money found to be in the hands of the respondent. The executor was not a party to the action; and, if he had been, the court would have had no authority to order a payment of money by him that would bind or protect him. There is no- provision by law by which the executor could have been made a party to the action, or the money in his hands brought within the control of the court. The statute relating to divorce and alimony does not authorize the bringing of money due and owing to- a respondent in divorce proceedings within the control of the court by attachment, trustee process, or otherwise. It only provides for an injunction, the effect of which is to subject the respondent who is within the jurisdiction of the court, and has notice, to punishment if he disobeys it, and toi provide for a lien upon his real estate and stock in private corporations. V. S. 2688, 2689.

The injunction order that was issued prohibited the payment of, or transfer of, the money in the hands of the executor; but this did not have the effect to seize and bring the money within the control of the court, and the court could make no decree concerning it. There was no money brought within the control of the court. The process was not served on the respondent, and he did not appear. Therefore the court did not have jurisdiction to decree the payment of any money as alimony. McKinney v. Collins, 88 N. Y. 216; Bunnell v. Bunnell, (C. C.) 25 Fed. 214; Lydiard v. Chute, 45 Minn. 277, 47 N. W. 967; Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; De La Montanya v. De La Montanya, 112 Cal. 101, 44 Pac. 345, 32 L. R. A. 82, 53 Am. St. Rep. 165.

Judgment affirmed.