Chapman v. Chapman
| Decision Date | 18 April 1916 |
| Parties | FANNIE P. CHAPMAN, Appellant, v. FRED E. CHAPMAN et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. George H. Shields Judge.
REVERSED AND REMANDED. CERTIFIED TO SUPREME COURT.
Judgment reversed and cause remanded.
Henry H. Oberschelp for appellant.
(1) If a defendant is not personally served and does not enter a voluntary appearance, a personal judgment cannot be rendered. Nevertheless, as the State has control over the marriage status of its inhabitants and also over property within its boundaries, in a suit for divorce and alimony, based on service by publication, the court may acquire jurisdiction to render a judgment in rem not only as to the marriage status dissolving it, but also as to the property within the State subjecting it to alimony award of the court, if the proper foundation is laid by the pleadings and the process. Wesner v. O'Brien, 56 Kan. 724; Harshberger v. Harshberger, 26 Ia. 503; Benner v. Benner, 63 Ohio St. 220; Hanscom v. Hanscom, 6 Colo.App. 97; Pennoyer v. Neff, 95 U.S. 714; Moss v. Fitch, 212 Mo. 485; Ellison v. Martin, 53 Mo. 575, 578. (2) In suits for divorce and alimony based on service by publication, in considering the extent of the court's jurisdiction in rendering a judgment in rem, there are two distinct res to be considered; one the marriage status to be dissolved; the other the husband's property within the State sought to be subjected to the alimony award of the court. Same cases as under point I. (3) Jurisdiction as to these separate res depends mainly upon the allegations in the petition and order of publication. If both set forth the marriage and prayer for its dissolution, the court acquires jurisdiction over the marriage status. But for the court also to acquire jurisdiction over the property to be subjected to the alimony award, both must also set forth the husband's ownership of certain real estate in the State, fully describe the same with prayer to establish and enforce alimony award against said property. Cases under point I. (4) In all those cases where the courts granted divorce but not alimony on constructive service, there had been a proper foundation laid for jurisdiction over the one res, the marriage, but not over the other res, the husband's property in the State. In the present case jurisdiction over the property has been obtained so as to subject it to special judgment in rem against it for alimony award, for the amended petition and publication thereunder describe the husband's real estate in this State with prayer for its subjection to the alimony award. While this precise question has never been presented to the appellate courts of this State, yet the Supreme Court and this Court of Appeals have clearly indicated that if it were they would award alimony and enforce it against the thus-described real estate. Moss v. Fitch, 212 Mo. 485; Ellison v. Martin, 53 Mo. 575, 578; Elvins v. Elvins, 176 Mo.App. 645. (5) Wherever a husband's property within a state has thus been brought under the control of the court in suits for divorce and alimony, throughout the United States, according to the published decisions, alimony has always been awarded and enforced as a special judgment in rem against the described property. Wesner v. O'Brien, 56 Kan. 724; Harshberger v. Harshberger, 26 Ia. 503; Benner v. Benner, 63 Oh. St. 220; Hanscom v. Hanscom, 6 Colo.App. 97. (6) (a) The sections of the Revised Statutes under the heading Divorce and Alimony, Secs. 2370-2381, contain no provisions for process. Any judgment on constructive service for its validity as to the divorce as well as to the alimony depends upon publication in accordance with section 1770 et seq. (b) Section 1770, R. S. 1909, authorized the publication to dissolve the marriage, as this is a suit "in divorce," and it likewise authorized the publication for the purpose of rendering a judgment in rem for alimony against the property mentioned, as it may be regarded as enforcement of a lien, and most certainly is an action which has for its "immediate object the enforcement or establishment of a lawful right, claim or demand to or against any real or personal property within the jurisdiction of the court." Section 1770, R. S. 1909; Benner v. Benner, 63 Ohio St. 226. (7) As property of the husband has been brought under the control of the court by the pleadings and process, and the evidence showed and the court found it to belong to the husband, it was the duty as well as the right of the court not only to grant divorce but also to award alimony and enforce the same against said property. Section 2375, R. S. 1909. (8) (a) As this was a suit for divorce and alimony, and alimony could only be granted in connection with the divorce, it had to be brought in St. Louis City, where plaintiff resided; but as its judgment could be enforced through the State, it had the right and duty to award alimony as a judgment in rem against all the mentioned property of the husband in the State, including that just over the city limit in the county of St. Louis. Sections 2176, 2371, 2375, R. S. 1909; Wesner v. O'Brien, 56 Kan. 724; Harshberger v. Harshberger, 26 Ia. 505. (b) Even if this were a separate, independent suit to subject the husband's real estate to alimony, as "some part thereof is situate" in St. Louis City, judgment would be binding on all the mentioned property. Sec. 1753, R. S. 1909. (c) In any event as plaintiff resided in the city of St. Louis and part of the real estate is situated there, judgment for full alimony award can be enforced against the property in said city. (9) Whatever interest, even equitable, the husband has in the real estate mentioned, even though it appear of record in name of another, can and must be subjected to judgment and execution for alimony in this case. Sec. 2192, R. S. 1909, Sub. 5th. (10) Ubi jus, ibi remedium.
No brief filed for respondent.
--Plaintiff herein sues for divorce, and seeks in the same action to have a receiver appointed to take charge of certain real estate alleged to be the property of her absconding husband, Fred E. Chapman, and to have the same, or a part thereof, appropriated to the payment of alimony in gross which she prays the court to award to her as a special lien or demand against such property. The suit proceeds, not only against plaintiff's husband, but the latter's brother also, to whom, it is alleged, the husband attempted to convey all of his real property in fraud of plaintiff's rights. Plaintiff was lawfully married to the defendant Fred E. Chapman on January 26, 1911, and from that date lived with him as his wife, in the city of St. Louis, until June 4, 1914, when, it is said he deserted her.
The amended petition charges that the defendant husband offered various indignations to plaintiff, such as to render her condition intolerable; that he was guilty of such conduct as to constitute him a vagrant, within the meaning of the vagrancy statute; and that he absented himself from plaintiff without reasonable cause for a space of more than one year; and, though able-bodied and possessed of means thereof, totally neglected and refused to support plaintiff or make any provision for her maintenance. The petition further avers that plaintiff is wholly without means of support, and for the prosecution of this action; that the defendant husband, Fred E. Chapman, is the owner of a certain lot of ground, in the city of St. Louis, describing it, with improvements thereon, known as 5059 Wells avenue, and other certain described lots in the county of St. Louis, with improvements thereon, known as 6428 and 6450 Etzel avenue; that said defendant, however, caused the title to all of said real estate to be placed in the name of his codefendant, Walter Chapman, who holds the naked legal title thereto for his benefit. And it is averred that the defendant Fred E. Chapman has absconded and absented himself from his usual place of abode in this State, and has concealed himself so that the ordinary process of law cannot be served upon him; and that defendant Walter Chapman is a nonresident of the State of Missouri and cannot be served in this State in the manner prescribed by law. The petition prays that plaintiff be divorced from the bonds of matrimony contracted with defendant Fred E. Chapman, with restoration of her maiden name, and that the court "adjudge to her permanent alimony in gross for her support and maintenance, and alimony pendente lite and her attorney's fees and suit money and costs, and enforce and establish the same as a lawful right, claim and demand to and against said estate within the jurisdiction of this court, and enforce the performance of the judgment by sequestration of said property and such other lawful ways and means as is according to the practice of the court; that a receiver be appointed to take charge of said property; that the defendants be enjoined from selling or in any wise disposing of or incumbering or injuring said property;" and for general relief.
Service was duly had upon both defendants by publication. Both defaulted, and upon a final hearing of the cause the court granted plaintiff a decree of divorce, with restoration of her maiden name, but declined to make any order touching the matter of alimony, and dismissed "the bill" as to defendant Walter Chapman. From this judgment plaintiff prosecutes the appeal before us.
The evidence discloses that plaintiff has suffered not only neglect but much of abuse and brutality at the hands of her husband, and that he finally abandoned her without cause and refused to support her or to contribute in any way to her...
To continue reading
Request your trial