Austin v. Austin

• Decision Date: 05 April 1920
• Docket Number: 306
• Citation: 220 S.W. 46,143 Ark. 222
• Parties: AUSTIN v. AUSTIN
• Court: Arkansas Supreme Court

220 S.W. 46

143 Ark. 222

AUSTIN v. AUSTIN

No. 306

Supreme Court of Arkansas

April 5, 1920

Appeal from Benton Chancery Court, Ben F. McMahan, Chancellor affirmed.

Decree affirmed.

Rice & Rice, for appellant.

The court's jurisdiction on constructive service is limited and it was error to hold that the court had power and jurisdiction to find the value of Oscar Adams' personal property and fix a lien on his real estate for $ 400. The court could not minimize or lessen the effect of our divorce statute (Kirby's Digest, § 2684); 5 Ark. 608; 126 Id. 164. See also Kirby's Digest, §§ 6254, 6223, 6259. The mere filing of a complaint gives the court no jurisdiction over the property of the defendant further than to make the necessary orders as to the wife's alimony. 38 Ark. 119; 23 Cyc. 688, 733; 42 Ark 441; 3 Ann. Cas. 727; 133 Am. St. 1030; 32 N.E. 71; 54 Id. 370; 63 P. 1065; 45 Id. 884.

2. Excepting a plaintiff come within section 6060 of Kirby's Digest the cause of action is transitory and the court was without jurisdiction to litigate this cause without proper service, and the alimony statute is governed by Kirby's Digest, § 6060.

McGill & McGill, for appellee.

1. The court had jurisdiction, and no attachment nor bond was necessary. Kirby's Digest, § 6263.

2. The authority of the court was not limited to a decision of the specific property within the jurisdiction of the court under § 6263 of Kirby's Digest.

3. No bond was necessary under § 6254.

4. By the divorce suit jurisdiction was acquired over the property of the defendant for any purpose necessary to give the wife that portion of her husband's property or its value which section 2684 of Kirby's Digest provides for her. See 38 Ark. 119; Ib. 324, 477; 125 Id. 309; 14 Cyc. 745-6; act March 28, 1893, Acts 1893, p. 176; 64 Ark. 518; 66 Id. 305; 124 Id. 391; 94 Id. 485; 101 Id. 522; 121 Id. 64; 126 Id 164.

5. A failure to give bond does not render the judgment void. It is only an error to be corrected by appeal. 126 Ark. 164; 1 Metc. (Ky.) 342, 649.

6. The court has jurisdiction for all purposes, having obtained it for one purpose. 133 Ark. 160; 37 Id. 286; 130 Id. 301; 38 Id. 397. See also 17 Ark. 587; 52 Id. 499; 53 Id. 545; 54 Am. St. 604; 72 Id. 636; 43 S.W. 891; 90 Am. St. 736; 13 Am. Dec. 239.

OPINION

MCCULLOCH, C. J.

Appellee, Ella Austin, and her husband, Oscar Austin, resided together in Benton County, Arkansas, until February 23, 1917, when there was a separation. They have one child the issue of their intermarriage. Oscar Austin owned the quarter section of land which is the subject of the controversy on this appeal, and in addition to household effects he owned personal property, consisting mostly of live stock, of the value of $ 1,200. On March 7, 1917, appellee filed the original complaint in the present action against her husband for divorce and for allotment of her share of the property which she was entitled to under the statute providing that in a final judgment for divorce granted the wife against the husband she "shall be entitled to one-third of the husband's personal property absolutely, and one-third of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage for her life, unless the same shall have been relinquished by her in legal form, and every such final order or judgment shall designate the specific property, both real and personal, to which such wife is entitled; and when it appears from the evidence in the case, to the satisfaction of the court, that such real estate is not susceptible of the division herein provided for without great prejudice to the parties interested, the court shall order a sale of said real estate to be made by a commissioner," etc. Kirby's Digest, § 2684.

Process was issued for personal service, but the service thereof was evaded by the defendant, Oscar Austin, who left the State after the commencement of the action and carried away his aforementioned personal property, except household goods. Subsequently appellee filed proper affidavit for warning order, which was published as required by law. During the pendency of the action, appellant, Fannie Austin, who is the mother of Oscar Austin, intervened in the action, claiming that she was the owner of the land in controversy by purchase from the defendant. Oscar Austin did not appear in the action.

The cause was heard by the court, and a decree for divorce was granted in appellee's favor, and the decree was also in favor of appellee for the custody of the child and for division of the property in accordance with the statute quoted above. The court found in the first place that the land was not susceptible of division and ordered a sale by commissioner for the purpose of dividing the proceeds in accordance with the terms of the statute. The court also found that the defendant had left the State for the purpose of evading process in this action and that he carried away the personal property for the purpose of preventing appellee from obtaining a decree in this action for her share of the property, and that the sale and conveyance of the land in controversy by the defendant to appellant was done for the fraudulent purpose of cheating and defrauding appellee out of her rights under the statute, and that appellant participated in the fraud. The court, therefore, ascertained the value of the personal property and declared a lien in appellee's favor for the value of her share thereof on the remaining interest in the real estate, or the proceeds thereof.

The testimony in the case is not abstracted, and it is conceded that it was sufficient to support the findings of the court. The intervener, Fannie Austin, has appealed, but the defendant has not appealed, and does not appear in this court. The appeal raises, therefore, only such questions as affect the rights of the appellant. The failure of appellee to give bond for restoration of the property, as required by statute, is not open to review on this appeal, as it does not affect the rights of appellant.

It is contended, however, that the court was without jurisdiction to decree a lien on the land in favor of appellee for the value of her interest in the personal property for the reason that there was neither personal service, or process on the defendant nor sequestration of the property by attachment or otherwise. We held in the case of Allen v Allen, 126 Ark. 164, ...