Baker v. Jewell
| Decision Date | 10 April 1905 |
| Docket Number | 15,337 |
| Court | Louisiana Supreme Court |
| Parties | BAKER v. JEWELL |
[Copyrighted Material Omitted]
On Rehearing.
In our former opinion we held that the judgment for alimony was valid as an incident to the proceedings for a separation from bed and board and for a divorce. Further reflection has convinced us that we erred in so holding. The demand for alimony and judgment rendered thereon were purely in personam, unaccompanied by seizure of or proceedings against property within the state.
Conceding that the proceedings for divorce were quasi in rem, it does not follow that the court had incidentally jurisdiction to render a personal judgment against the nonresident defendant, who was not personally cited, and who did not make a voluntary appearance.
In Herber v. Abbott, 39 La.Ann. 1112, 3 So. 259, this court held that a judgment against a nonresident defendant, not personally cited, in an attachment suit, had no validity except as against the thing subjected to the control of the court. We make the following extract from the opinion in that case:
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It is well settled that costs are incidental to and follow a judgment, but the Supreme Court of the United States has held that in actions in rem or quasi in rem a personal judgment for costs cannot be rendered against a nonresident not cited or appearing, though the court may order such costs paid out of the proceeds of the property subject to its control. Freeman v. Alderson, 119 U.S. 185, 7 S.Ct. 165, 30 L.Ed. 372. Hence the circumstances that a particular demand is incidental to a demand in rem or quasi in rem cannot affect the rule of constitutional law that a personal judgment cannot be validly rendered against a nonresident on mere constructive notice by publication or otherwise. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565.
Although the precise question now under consideration has not been decided by the Supreme Court of the United States, it has been held by inferior federal tribunals to be a plain proposition of law that a state court is without jurisdiction to award a money judgment for alimony against a defendant on whom no personal service has been made, and who has not voluntarily appeared in the proceedings. Bunnell v. Bunnell (C. C.) 21 F. 244; Hekking v. Pfaff, 91 F. 60. 33 C.C.A. 328, 43 L.R.A. 618.
This same doctrine is laid down by Judge Cooley as follows:
Const. Lim. (7th Ed.) p. 584.
See, also, Rigney v. Rigney (N. Y.) 28 N.E. 405, 24 Am. St. Rep. 462; Dillon v. Starin (Neb.) 63 N.W. 12; Smith v. Smith (Vt.) 51 A. 1060; Anderson v. Anderson, 55 Mo.App. 268.
In De La Montanya v. De La Montanya (Cal.) 44 P. 345, 32 L.R.A. 82, 53 Am. St. Rep. 165, it was held that constructive service of summons cannot give jurisdiction in a divorce suit to award alimony and the exclusive custody of the children, where the husband and children are outside of the state, and do not appear, even if their domicile be within the state.
The solitary case of Sprague v. Sprague (Minn.) 76 N.W 268, 42 L.R.A. 419, 72 Am. St. Rep. 636, is cited in opposition to the current of authorities already mentioned. In that case alimony was awarded against the husband, who was the plaintiff in the suit, and there was no question of the validity of the judgment as against him. The wife, who was temporarily absent from the state when the divorce proceedings were had, but who had been...
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