
    Weidman v. Weidman.
    Alimony— Wife obtains decree of divorce — Cannot later obtain alimony by separate action.
    
    Where a wife obtains a divorce from her husband in this state without a decree for alimony, he being personally served with process, she cannot thereafter maintain a separate action against him for alimony.
    (Decided November 23, 1897.)
    Error to the Circuit Court of Cuyahoga county.
    In 1879, Caroline Weidman, plaintiff in error, was divorced, by the court of common pleas of Cuyahoga county, from Michael Weidman, defendant in error, on the ground of extreme cruelty, and was given the custody of her two minor children, (daughters), the defendant then promising plaintiff that if she would not apply for divorce on the ground of adultery, and would not disclose the fact that he had been afflicted with a venereal disease, he would pay her money from time to time, amply sufficient to support her and her daughters. That relying upon that promise, being at the time young and inexperienced in business matters, she applied for and obtained a divorce without any decree for alimony, and thereafter in this suit, filed her petition for alimony, setting out that he failed to perform his promises; that he was worth $25,000; that he had violated his marriage vows in every possible way; that she had been put to great expense in rearing her said children, and providing medical attendance for one of them, (their daughter Florence, who had been under the doctor’s care constantly); that her own health had been greatly enfeebled by her exertions, and her great need of alimony to support herself.
    The defendant demurred to the petition, on the ground that it did not state facts sufficient to constitute a cause of action.
    The demurrer was sustained by the court of common pleas, and petition dismissed, to which she excepted.
    On petition in error, the circuit court affirmed the judgment, and thereupon she filed her petition in error in this court, seeking to reverse the judgments of both the lower courts.
    
      W C. Rogers and C. B. Robinson, for plaintiff in error.
    
      Clark & Thompson, for defendant in error.
   By the Court :

At the time of the divorce, both parties were residents of Cuyahoga county, and personal service was had upon the husband, and the divorce was absolute, the decree giving the custody of the children to the wife. The court had full jurisdiction of the parties and of the subject-matter. In that respect this case differs from the cases of Mansfield v. McIntyre, 10 Ohio, 27; Cox v. Cox, 19 Ohio St., 502; 20 Ohio St., 439; and Woods v. Waddle, 44 Ohio St., 449. In those eases the proceedings were ex pa/rte, without personal service, and in the Woods - Waddle Case, the application for alimony was dismissed without prejudice, to enable her to recover alimony elsewhere, for the reason that there was no personal service on the husband, and the court had no. jurisdiction of" his person. In the other cases there was no personal service on the wife, and the court had no' jurisdiction of the person. In cases in which there is no jurisdiction of the person of one of the parties, there can be no adjudication in personam of the question of alimony; and therefore in such cases, while- the divorce may be valid, the question of alimony remains unadjudicated, and the wife may, under proper circumstances, maintain an action for alimony.

But in actions for divorce in which the court has jurisdiction of both parties by personal service, the final decree of divorce will include all questions of alimony, and the wife cannot thereafter maintain a separate action against her late husband for such alimony.

The action for alimony is statutory, and- by sec tion 5702, Revised Statutes, it is provided that, “the wife may file her petition for alimony alone.” After an absolute divorce in an action in which the court had jurisdiction of both parties, she is no longer “thewife,” and does not come within the provisions of the statute. Strictly speaking, the same is true in eases in which the divorce was obtained by the husband in an ex parte proceeding, but as the wife in such cases has not had her day in court as to alimony, nor as to her equitable interest in his property, this court, by a liberal construction in her favor, has allowed her in such cases to maintain a separate action against her divorced husband for the recovery of alimony, which is in its nature an equitable allowance out of his property. But the principle can not be extended so as to allow a woman who has been divorced in an action in which the court had jurisdiction of her person, to waive alimony in the divorce proceedings, and then years afterward maintain a separate action therefor.

The property of the husband is usually the result of the joint efforts of both husband and wife, and upon dissolution of the marriage she is entitled to her equitable share of the property as alimony. The amount of the equitable interest in the property can only be ascertained by a court upon a full hearing of all the facts and surroundings concerning the parties. Her equitable interest in such property is so connected and interwoven with the marriage relation, that it can be best ascertained and separated in the same action in which the marriage contract is severed by divorce. And when both parties have their day in court in the divorce proceedings, and permit the marriage contract to be severed, without at the same time having their property rights growing- out of such contract and relation, adjusted, it will be held that they have conclusively waived and withdrawn the consideration of that question from the court, and neither of them can thereafter be heard in aid of an adjudication as to such property, or as to such property rights. In such cases the courts will leave the parties where they have placed themselves.

Judgment affirmed'.  