Bunnell v. Bunnell

• Decision Date: 12 October 1885
• Citation: 25 F. 214
• Parties: BUNNELL v. BUNNELL and others.
• Court: U.S. District Court — Eastern District of Michigan

25 F. 214

BUNNELL v. BUNNELL and others.

United States Circuit Court, E.D. Michigan.

October 12, 1885

This was a bill to set aside certain conveyances of real estate made by the defendant Miron Bunnell to his daughter, Ada which are alleged to be in fraud of the rights of the plaintiff, the former wife of Miron Bunnell, who had procured a divorce, and a decree for alimony against him. The bill which was originally filed in the circuit court for the county of Bay, set forth the marriage of the plaintiff with the defendant on August 7, 1880; the birth of a child in July, 1882; and the filing for a bill for divorce on April 21, 1883, upon the ground of cruelty and non-support. The bill further alleged that a short time prior to the filing of the bill for divorce the defendant absented himself from the state and went to Minnesota, and that because of such absence no personal service was had upon him, and that he did not appear in the suit for divorce, but was brought into court by publication; that on the fourth of March, 1884, a decree was rendered dissolving the marriage, awarding the complainant the custody of their child, and adjudging that the defendant should pay to the complainant the sum of $5,000 alimony, with costs of suit, and that if he failed to pay such alimony within 45 days after service of notice of the decree, a commission should issue to a sequestrator, with the usual powers of a receiver, to sequestrate the real and personal estate of the defendant within the jurisdiction of the court and to receive and collect the rents, issues, and profits of the real estate, to be applied to the payment of her alimony that the defendant having failed to pay the alimony after notice of the decree, plaintiff filed a petition for the appointment of a receiver to collect the rents and profits of his property, and that one Fitz Hugh was appointed sequestrator under the statute, with the powers of a receiver, but that the parties in possession refused to attorn to him, claiming that they were renting the property from the defendant Ada Bunnell; that a short time before the filing of her bill complainant had discovered that the said Miron Bunnell had assumed to convey to his daughter all of his property within the jurisdiction of the court by deed dated April 14, 1883, and placed upon record about three hours after the filing and recording of the complainant's notice of lis pendens. The bill further averred the fraudulent character of these deeds, and prayed that they might be set aside and canceled, and the property applied to the payment of her alimony. The defendant Miron Bunnell did not appear. The answer of Ada Bunnell denied the fraud, and claimed the rights of a bona fide purchaser.

A. McDonell, for plaintiff.

Mr. Gillett and H. H. Hatch, for defendant, Ada Bunnell.

BROWN J.

The right of the plaintiff to recover in this case depends largely upon the validity of the decree of the circuit court for the county of Bay awarding the complainant alimony, and ordering the sequestration of the defendant Miron Bunnell's property for her benefit. At the time the original bill for divorce was filed, defendant was living in the state of Minnesota, and no personal service upon him was ever obtained. This bill, after setting forth her grounds for divorce, and her want of means to support herself, averred the ownership by defendant of the property in question, and prayed for an injunction restraining its transfer, and for alimony 'out of the real and personal estate of the defendant. ' A notice of lis pendens was filed the same day the bill was filed, which was also the same day upon which the deeds from the defendant Miron to his daughter, Ada, were filed, which is the object of this suit to set aside. No further attempt was made to reach the property, or obtain jurisdiction over it, until after the decree. Defendant was called into court by publication in the usual form. The decree, which was rendered on the fourth day of March, 1884, dissolved the marriage relation, awarding to the plaintiff the custody of her child, and alimony in the sum of $5,000; and further ordered that, in case defendant should fail to pay the alimony or costs within 45 days after notice of the decree, a sequestrator should be appointed, with the usual powers of a receiver, to sequestrate the real and personal estate of the defendant within the jurisdiction of the court, and to receive and collect the rents, etc., and to bring them into court, to be applied to the payment of alimony and costs. A sequestrator was subsequently appointed, but the tenants of the property refused to attorn to him, and this bill was filed.

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 no doubt. In the absence of personal service upon the defendant within jurisdiction of the court, no court has power to render a judgment in personam which 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 jurisdiction 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. Freem. Judgm. 564, 588; Bischoff v. Wethered, 9 Wall. 812; Outhwite v. Porter, 13 Mich. 533; Tyler v. Peatt, 30 Mich. 63; Booth v. Connecticut Mut. L. Ins. Co., 43 Mich. 299; S.C. 5 N.W. 381; McEwan v. Zimmer, 38 Mich. 765.

It is claimed, however, that by virtue of a special statute of...