Chapman v. Chapman

• Decision Date: 18 April 1916
• Docket Number: No. 15099.,15099.
• Parties: CHAPMAN v. CHAPMAN et al.
• Court: Missouri Court of Appeals

185 S.W. 221

194 Mo. App. 483

CHAPMAN v. CHAPMAN et al.

No. 15099.

St. Louis Court of Appeals. Missouri.

April 18, 1916.

Appeal from St. Louis Circuit Court; Geo. H. Shields, Judge.

"To be officially published."

Suit for divorce and alimony by Fannie P. Chapman against Fred E. Chapman and another. From a judgment granting plaintiff a decree of divorce, but declining to make any order touching the matter of alimony and dismissing the bill as to the unnamed defendant, plaintiff appeals. Judgment reversed, and cause remanded to be proceeded with in accordance with the opinion.

Henry H. Oberschelp, of St. Louis, for appellant.

ALLEN, J.

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 indignities 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 therefor, 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 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 real 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 maintenance. The record also discloses that, prior to the trial of this cause below, the defendant husband had been adjudged guilty of wife abandonment in a criminal proceeding, from which judgment of conviction he prosecuted an appeal which is now pending. The evidence, too, is overwhelming to the effect that defendant Fred E. Chapman is the real owner of the real estate described in plaintiff's petition, that is to say, the owner of the "equity" in each piece of property, since each is incumbered by a mortgage. He collected the rents thereof through various agents from time to time, who remitted to him. One of these collectors testified that he had collected the rents for three months prior to the trial, and that he mailed checks therefor, excepting for the "last rent," to defendant Fred E. Chapman, at 17 North Main street, East St. Louis, Ill.; that he had not remitted the "last rent" for the reason that said defendant had left the East St. Louis address and the witness did not know how to reach him.

I. The learned trial judge filed a written opinion herein to which we are at liberty to refer, though it is not a part of the record and not to be treated as such. From this it appears that the court was satisfied that the property described in the petition was in fact the property of the defendant Fred E. Chapman, but was of the opinion that the court was without jurisdiction to render any judgment whatsoever for alimony in the absence of personal service on the defendant husband; that though plaintiff is the innocent and injured party, and entitled to a divorce and alimony, no judgment of any nature respecting alimony may be rendered in her behalf upon constructive service. And the learned trial judge expressed a serious doubt "whether or not a petition asking that alimony shall be declared a lien on defendant's property in the hands of another can be joined with an ordinary proceeding for divorce."

It is quite true that service by publication or personal service beyond the limits of the state will not support a judgment in personam. Elvins v. Elvins, 176 Mo. App. loc. cit. 651, 159 S. W. 746, and cases cited. And while the ordinary divorce suit is a proceeding in rem, the marriage status constituting the res, a personal judgment against the husband for alimony, as an incident thereto, cannot be supported by constructive service upon him. See Hedrix v. Hedrix, 103 Mo. App. 40, 77 S. W. 495; Ellison v. Martin, 53 Mo. 575; Moss v. Fitch, 212 Mo. 484, 111 S. W. 475, 126 Am. St. Rep. 568; Elvins v. Elvins, supra, 176 Mo. App. loc. cit. 652, 159 S. W. 746. And a statute purporting to authorize the rendition of a personal judgment against a nonresident defendant upon service either by publication or personal service beyond the territorial limits of the state is to that extent absolutely void. Priest v. Capitain, 236 Mo. 446, 139 S. W. 204; Moss v. Fitch, supra; Wilson v. Railroad, 108 Mo. 588, 18 S. W. 286, 32 Am. St. Rep. 624.

While this is quite true, in our opinion it falls far short of determining the chief question here presented for decision. In the case now before us, plaintiff's counsel, after repeatedly making unsuccessful efforts to have process personally served in this state, and realizing the futility of any attempt to procure a personal judgment in plaintiff's favor for alimony against her faithless and absconding husband, seeks by this proceeding to have the defendant's property within the jurisdiction of the court seized and appropriated to the payment of alimony for the support and maintenance of plaintiff. Leaving out of consideration for the present other questions to be touched upon later, let us see whether or not our law can be said to countenance a proceeding of this character, for the relief of an innocent and injured wife whose husband has absconded and, to avoid his marital obligations, keeps his person beyond the reach of the process of our courts, but who leaves behind him property within the jurisdiction of the court wherein the proceeding is instituted.

It is quite true that the question thus presented has not been directly adjudicated in the courts of this state. Our reports appear to contain no reported decision in a case of this precise character. But, though this be true, it does not follow that the proceeding is one entirely beyond the purview and contemplation of our law. While our Supreme Court has consistently held that no general judgment, in personam, may be rendered for alimony, or otherwise, based upon constructive service either by publication or by extraterritorial service, no decision of that court, so far as we have observed, holds or intimates that a proceeding of a character in rem may not be maintained in our courts to subject the property of an absconding husband, within this jurisdiction, to the support and maintenance of the wife domiciled here. On the contrary, it has been at least intimated that a proceeding of this nature may perhaps be appropriate where personal service cannot be had upon the husband.

In the early case of Ellison v. Martin, 53 Mo. loc. cit. 578, the court through Adams, J., said:

"Our laws do not allow general judgments to be rendered against parties merely on publication of notice, and without appearance of the defendant. The Legislature never contemplated that such judgments might be given. Smith v. McCutchen, 38 Mo. 415. A judgment on order of publication can only be given in proceedings in rem.

"A divorce suit is a proceeding in rem, and the res is the status of the plaintiff in relation to the defendant, to be acted on by the...