
    (Eighth Circuit — Cuyahoga Co., O., Circuit Court
    Oct. Term, 1897.)
    Before Hale, Marvin and Caldwell, JJ,
    MELVILLE F. MASSEY v. MARY F. STIMMEL.
    
      Alimony — Not to be awarded against non-resident defendant, although he has property within the state — -
    In a divorce proceeding, alimony can not be, awarded where the domicile of the defendant is in another state and service of process is only obtained by publication, except where he appear and submit himself to the jurisdiction of the court; and this is so although the defendant has property within the state.
    Appeal from the Court of Common Pleas of Cuyahoga county,
    
    
      
      [*Decision of Dellenbaugh, J., in court of common pleas, reported in 5 Nisi Frius Reports, 29.]
    
   Marvin, J.

The plaintiff, Massey, sets out in his Detition. that on the 9th day of June, 1883, the defendant, who for some years previous and up to that time-had been his wife, procured a divorce from him in the court of common pleas of this county; that the decree entered by the court in that action included an order that there should be paid to the wife the sum of five hundred dollars as alimony; that at the time such decree was made he was a non-resident of this state and was a resident of the state of New York; that no service was had upon him, and that the judgment was a fraud upon him, and he says that the defendant in this action will, unless prevented by an order of this court, cause certain property of his, situated in Erie county of this state, to be sold to satisfy that award of five hundred dollars alimony, and prays that she may be enjoined from so doing.

A demurrer was filed to this petition, the ground of which is that the petition is based upon the fact that the decree was obtained by fraud, and that there was no allegation that the suit was brought within the time provided by law after the discovery of the fraud.

We do not understand that this petition is based upon “fraud”, in the sense in which it is used in the argument by counsel who filed the demurrer, or in the sense in which it is used in the statute.

The ground upon which it is said that the decree, or the order for the payment of five hundred dollars alimony can not be sustained, is that the court was without jurisdiction to decree alimony, and that, in that sense, only, was any “fraud” perpetrated. We think that this is clearly a correct statement of the effect of the petition. It is not that kind of a fraud which authorizes the setting aside of the judgment under this statute, which is set out in the petition,' and the demurrer is, therefore, overruled.

"This brings us to the question: Did the. court haye jurisdiction to enter the order that alimony be paid?

The determination of this question determines the case.

The evidence establishes, as we think, that the plaintiff in this action, at the time of the filing of the petition for divorce, and during all the time of the pendency of that suit, was a resident of the state of New York. He says so; nobody denies it; his brother says it; and we think there is no question that he was a resident of New York; and, indeed, the defendant here — the plaintiff in that action —obtained service, if any was obtained, by publishing noticeina newspaper describing him as “residing in the state of New York,” and caused a copy of the summons to be mailed to him in New York.

And that raises the question as to whether the court here had any jurisdiction over a resident of the state of New York to award alimony against him where no personal service was obtained upon him in the state of Ohio. There was a publication in a newspaper of general circulation in this county for six consecutive weeks apprising this plaintiff, the defendant in that action, that his wife had sued him for divorce and alimony. And it is certain that very shortly after the decree was entered this plaintiff knew, not only that his wife had obtained a decree for divorce, but- that the court had awarded her alimony in the sum of- five hundred dollars. This the plaintiff admits,and exhibits a newspaper clipping sent to him by his brother shortly after the divorce was obtained, announcing the decree for divorce and alimony.

There is a conflict in the testimony as to whether the plaintiff saw the defendant after such divorce was obtained and before the bringing of the present suit; and as to this it is hardly possible to avoid the conclusion that somebody committed deliberate perjury on the trial of this case. The plaintiff says that he did not see his wife from the time he went^toJNeWjYork some months before the suit for divorce was brought, until after the bringing of the present suit. Defendant says that he called at her house on more than one occasion,and talked with her with reference to the education of their son, and that he.took the son with him from her house to visit the theatre; but as we view the case, it is indifferent which of these statements is correct.

The authorities are uniform that the courts may obtain jurisdiction to decree divorce where, under certain circumstances, the service upon defendant is not personal, but only constructive. The plaintiff being a resident, of the state in which the divorce is sought, is entitled to have his' or her marital status fixed by the decree of the court in which the law authorized the suit for divorce to be brought.

It follows, of course, that where the court decrees a divorce to a citizen of its own state,thereby fixing the marital status of such citizen, it necessarily fixes the marital status of the consort of such citizen whether a citizen of its own state or not; and this, not because of its jurisdiction over the non-resident, but because,in the exercise of its jurisdiction over the citizen of its own state, the result necessarily is that the status of the non-resident is fixed by the same decree. If the resident husband or wife residing in this state ceases to be the husband or wife of the non-resident, such non-resident thereby ceases to be ihe husband or wife of the citizen of this state.

But an order upon the defendant in a divorce case to pay alimony is a judgment in personam, and the court is without jurisdiction to render such judgment where only constructive service is had upon the defendant.

It does not necessarily follow that, because the court has jurisdiction to decree a divorce where no personal service is had upon the defendant,that it has jurisdiction to“award ali-' mony.

I quote from section 933 of the vol. 2 of Black on Di«. vorce:

“A decree in divorce is in rem and, therefore, justified by jurisdiction over the res alone, only in so far as it affects the marital status. If it goes further than this, and assumes to adjudicate matters collateral or incidental to the dissolution of the marriage, the proceeding becomes one in person-am, and no personal liability can be imposed upon the defendant unless there is jurisdiction of his person acquired by proper service of process. All the cases which recognize the jurisdiction of the state to determine the marital status of its own citizens, although one of the parties lives in another state, limit the exercise of it to the dissolution of the marriage. The decree in such cases affects only the status of the marriage relation. To go one step further, and say the guilty party who is a non-resident, and, therefore, beyond the process of this court, shall not marry again, is quite another thing.”

Without reading further in that connection, I read from the same section again:

“On the same principle, when the defendant in divorce, is a non-resident and is not personally served with the process within the state, or has not voluntarily submitted himself to the jurisdiction of the court, a decree awarding alimony has no extra-territorial validity, for, to that extent, it is purely a personal judgment.”

It may, however, be said that for the defendant here to seek to subject the property of the plaintiff situated in this state to the payment of the decree for alimony, is not to claim that the award of alimony'is to háve “extra-territorial validity”, because no effort is made to subject property to the payment of this decree which is beyond the jurisdiction of the court

The case of Bunnell v. Bunnell, found in the 25 Federal Reporter" beginning on page 214, is a case decided in the U. S. circuit court for the eastern district of Michigan in 1885 by Judge Brown,now a Justice of the Supreme Court of the United States, and it seems to meet this question. The syllabus reads:

“A state statute permitted its courts, in suits for divorce, to award alimony, and to sequestrate the property of the defendant within the jurisdiction, and appropriate the same to the payment of alimony. Held, that this statute did not apply where the defendant was called into court by publication, and that a decree for alimony against a defendant not personally served with process, was void for want of jurisdiction.”

I quote again from the opinion on page ‘216:

“That the decree in the.divorce suit, in so far as it purported to be a personal decree against the defendant for alimony and costs, is void, can admit of nc doubt. In the absence of personal service upon the defendant within the jurisdiction of the court, no court has power to render a judgment in personam whic.h can be the subject of an action or the basis of an execution. To render a valid judgment, a court must obtain jurisdiction either of the person or property of the defendant within its jurisdiction. If jurisdiction of the person be obtained by personal service of process, the judgment will be valid the world over. If jurisdicton be obtained by seizure of property, the judgment will be valid only as it respects that property, and within the jurisdiction of the court rendering it.

Again I read from the same opinion,on page 217:

“The distinction between cases where jurisdiction is acquired by a seizure of the res at the same time the suit is begun, and those wherein a personal judgment against a party not served with process it attempted to be enforced against property within reach of the court, is clearly stated in Pennoyer v. Neff, 95 U. S., 714, In that case,one Mitchell brought suit against the defendant, Neff, and, failing to obtain service against him within the state, called him into court by publication under a statute of Oregon, which provided that in case service of a summons could not be made and defendant could not be found within the state, the court might order service to be made by publication of the summons. Judgment having been obtained and levied upon' the property of the defendant within the state, the property was sold upon execution by the sheriff, and bid in by the plaintiff,-Pennoyer. The court held that the judg. ment,' being personal in its character, was without validity, and did. not authorize the salq of the property in controversy. The plaintiff assumed the position that where the defendant has property within the state, it is immaterial whether it is in the first instance brought under control of the court by attachment or some other equivalent act, and afterwards applied by its judgment to the satisfaction of the demands against the owner, or the demand be first established in a personal action, and the property of the nonresident be afterwards seized and sold on execution. But the court-held that the jurisdiction of the court to inquire into and determine the obligations of the defendant was only incidental to its jurisdiction over the property. Its jurisdiction in that, respect could not be made to depend upon facts to ' be ascertained after it had triefi the cause and rendered the judgment. ‘If-the judgment be previously void, it will not be valid by the subsequent discovery of property of the defendant, or by his subsequent acquisition of it.’ ‘The judgment, if void, when rendered, will always remain void. ’ ”

Section 9, of the 2nd Vol. of Bishop on Marriage, Divorce and Separation, reads:

“Alimony. — It exists only by judicial decree. Therefore, by all opinions, it cannot be validly awarded in a mere ex parte divorce suit in rem, where the non-appearing defendant’s domicile is in another state. If he dwells in the same state, u statute may, according to the Indiana case, authorize a decree for alimony against him on constructive notice. If in another state it can not; except when he appears and submits to the jurisdiction, then it can.’’

From these authorities^ which we believe to be in harmony with the authorities generally on the same subject, we hold that the court of common, pleas in which the divorce suit was tried, was without jurisdiction to award alimony, and that the plaintiff in this action is entitled to an orde enjoining the defendant from proceeding to subject his property to the payment of such alimony.

C. E. Pennewell, Phinney & Merrill, Attorneys for Plaintiff in Error.

Frank A. Beecher, Attorney for Defendant in Error.

Judgment will be entered accordingly.  