Closson v. Closson

• Citation: 30 Wyo. 1,215 P. 485
• Decision Date: 29 May 1923
• Docket Number: 1047
• Parties: CLOSSON v. CLOSSON
• Court: United States State Supreme Court of Wyoming

215 P. 485

30 Wyo. 1

CLOSSON v. CLOSSON

No. 1047

Supreme Court of Wyoming

May 29, 1923

APPEAL from District Court, Campbell County; HON. H. P. ILSLEY Judge.

Action by Orville LeRoy Closson against Clara Closson to recover possession of real property set over to defendant in a former action of divorce between the parties. There was judgment for plaintiff and defendant appeals.

Reversed and Remanded.

Raymond La Fleiche and Kem, and W. K. Somers for appellant.

Respondent did not seek relief under Section 5924 C. S.; the decree could not be attacked collaterally. (Newmans v Cinti. 18 O. S. 329; Farran v. Robinson, 17 O S. 252; Lancaster v. Wilson, 27 Grat. 624; Hendrick v. Whittemore, 105 Mass. 23; Campbell v. Jones, 12 S.W. 1017; Crawford v. McDonald, 33 S.W. 328; Friedman v. Shamblin, 23 So. 823; Hughes v. Cummings, 2 P. 290; Ruppin v. McLachlan, 98 N.W. 156; Wood v. Mobile, 99 F. 615; Ferguson v. Yard, 30 A. 517; Morgan v. Zenor, 55 N.W. 197; Hurlbett v. Thomas, 55 Conn. 181.) To subject a judgment to collateral attack, absence of jurisdiction must appear on the record (Bambutger v. Green, 146 Ky. 258, 143 S.W. 384; Moore Rlty. Co. v. Karr, 61 Ore. 34, 120 P. 742.) A mere allegation of no legal notice is not sufficient; (Bank v. Ault, 1 N.E. 565.) A finding of service by publication is a finding of jurisdiction; an admission of jurisdiction to grant divorce will not permit a collateral attack on decrees which also disposes of property of the parties, the record otherwise showing jurisdiction of the court. Black on Judgments 2nd Ed. Vol. 1, Sec. 273, Callen v. Ellison, 13 O. S. 455; Sec. 5000 C. S. authorizes a disposition of property of parties as an incident of a decree of divorce; Pennoyer v. Neff, 95 U.S. 714 cited by plaintiff is not in point, that case involving jurisdiction of a nonresident in an action for a money judgment without attachment or personal service; a different rule obtains in divorce actions in view of the Wyoming Statutes; service upon nonresidents by publication is authorized in divorce actions; property rights may be decreed. (Twing v. O'Meara, (Ia.) 13 N.W. 391,) and such decrees are not subject to collateral attack. It is not necessary to describe the property in the published notice, (Rogers v. Rogers (Kans.) 143 P. 409; Blankington v. Blankington, 5 N.E. 823,) while a mere judgment for alimony can not be rendered upon constructive service, property within the jurisdiction of the court may be decreed, (Benner v. Benner, 58 N.E. 571) the land involved is the hometsead of the parties, occupied by the wife as a homestead at the time it was granted to her in the decree of divorce against her husband on grounds of desertion. The judgment of the trial court should be reversed.

Schrader & Lewis and Elwood Anderson for respondent.

The decree granting defendant a divorce was not an action wherein service was had by publication only; neither the affidavit for publication nor the published notice referred to or described property; no proceedings for attachment, injunction, receivership or otherwise was had to acquire possession of the lands nor a seizure thereof on behalf of plaintiff in the divorce action. That portion of the divorce decree undertaking to set over lands to the plaintiff was without jurisdiction, and contrary to Art. XIV of the Constitution of the United States, and of Art. I, Sec. 6 of the Wyoming Constitution prohibiting the taking of property without due process of law; service by publication under Sec. 5636 C. S. may be had in suits for divorce and Secs. 5638-5639 require an affidavit as to facts of nonresidence and the notice to contain a summary statement of the object and prayer of the petition; it is admitted that the service in this case was sufficient to give jurisdiction to render the divorce, but insufficient to confer jurisdiction to decree property rights; the judgment being void may be attacked collaterally as to the portion thereof granting the homestead to plaintiff; the notice did not state the object and prayer of the petition to be, with reference to property of the parties as required by statute. (21 Ruling Case Law 1294, Sec. 37 as to affidavit, and 1297 Section 40 as to notice; Barlow v. Young, (Okla.) 103 P. 623, a leading case both as to the affidavit and notice, and the question of collateral attack, Hartzen v. Virgen, (N. D.) 69 N.W. 203; Garrett v. Struble, (Kan.) 46 P. 943; Harrison v. Cloflin, (Kan.) 13 P. 830; McGavack v. Pollack, 13 Neb. 535; Attkins v. Attkins, 9 Neb. 191; Frazier v. Miles, 10 Neb. 113; Carson v. Schoemaker, 55 Minn. 386; Westcott v. Archer, 12 Neb. 345; Cohen v. Trowbridge, 6 Kans. 385; Cockley v. Smith, (Kan.) 17 P. 156.) The proceedings did not constitute due process of law, the court being without jurisdiction. (21 Ruling Case Law 1295; 1 Ruling Case Law 886 Sec. 26; Pennoyer v. Neff, 95 U.S. 714, 24 L. ed. 565; Pennington v. Bank, 243 U.S. 269, 61 L. ed. 713; Cooper v. Reynolds, 77 U.S. 308, 19 L. ed. 931; Conklins Admiralty Law 150-151; Benedict's Admiralty Law 434-435; Hartsel v. Virgin (N. D.) 69 N.W. 203; Murray v. Murray, 115 Cal. 266, 47 P. 37; Wesner v. O'Brien, (Kan.) 44 P. 1090; Brenner v. Brenner, 63 O. St. 220, 58 N.E. 569; Regney v. Regney, 127 N.Y. 408; Bunnell v. Bunnell, 25 F. 214.) According to the better view the mere fact that property belonging to the husband is to be found within the state, is not sufficient, unless it be subjected to the court's jurisdiction by attachment or otherwise, Pennoyer v. Neff supra, the case of Wessner v. O'Brien supra was a divorce action in which reference to property was omitted from the published notice. A divorce action though not strictly a proceeding in rem, is of that nature insofar as it effects the marital status of the plaintiff; as to alimony and costs, it is a proceeding in personam. (Regney v. Regney, supra; People v. Baker, 76 N.Y. 78; 2 Bish. Mar. Div. and Sep. Sec. 23.) A judgment which awards, (1) a divorce; (2) alimony; (3) costs, while valid as to the marital status of plaintiff, does not bind defendant where recovered against a nonresident husband, who has not appeared nor been served in the state in which the action is brought. (Beard v. Beard, 21 Ind. 321; Lytle v. Lytle, 48 Id. 200; Midderworth v. McDowell, 49 Id. 386; Prosser v. Warner, 47 Vt. 667; Harding v. Alden, 9 Me. 140; Garner v. Garner, 56 Md. 127; Van Storch v. Griffin, 71 Pa. St. 240; People v. Baker, 76 N.E. 78, 87; Van Voorhis v. Brentnall, 86 Id. 18; De Meli v. De Meli, 120 Cooley on Con. Lim. 405; 2 Black on Judg. Sec. 933; Freem on Judg. Secs. 584, 586; Brown on Jurisdiction, 556, 557, 558, et seq.)

W. K. Somers, Raymond LaFleiche and Kem in reply.

Each state has jurisdiction over the property of its citizens; states may prescribe requirements of jurisdiction and make service by publication as good as any other kind of service. Wesner v. O'Brien, 44 P. 1090; Sec. 4999-5002 C. S. relating to divorce and property rights are intended for the protection of the family; had the legislature intended that special process for the seizure of property should issue in divorce actions, it would have so provided; we concede that a judgment for money only, cannot be obtained upon constructive service. The judgment here is against property within the jurisdiction of the court, over which no foreign court can ever acquire jurisdiction; our statutes authorize judgments of this class. Iowa has a similar statute, Rea v. Rea, 98 N.W. 787; Pennington v. Bank, 243 U.S. 269, cited by respondent is not in point; the court there had to do with personal property and a money judgment, and a similar distinction may be noted in Brenner v. Brenner, 58 N.E. 569, also cited by respondent; the statute of Arizona regarding the disposition of property in divorce actions is similar to our own; in the case of LeBarron v. LeBarron, 205 P. 910, an attack was made upon a divorce decree only insofar as it affected property rights, the court held that the decree could not be attacked.

KIMBALL, Justice. POTTER, Ch. J., and BLUME, J., concur.

OPINION

KIMBALL, Justice.

Orville L. Closson, respondent here and plaintiff below, brought this action in the District Court of Campbell County, Wyoming, against Clara F. Closson, appellant here and defendant below, to recover the possession of a tract of land consisting of 163.47 acres in that county. The parties were formerly husband and wife. The defendant denied the plaintiff's title and right to possession, and by cross-petition in the nature of a petition to quiet title, alleged that she was the owner and in lawful possession of the land by virtue of a decree of the same court in an action for divorce wherein she was granted a divorce and the land in question was set over to her. By his answer to the cross-petition the plaintiff admitted the rendition of the decree in the divorce action, but alleged that so much thereof as was designed to set over to defendant the land in question was void for want of jurisdiction. Upon the issue thus raised the trial court found for plaintiff and from a judgment in his favor the defendant appeals.

The parties were married in South Dakota in 1902. In 1907, under the Homestead Act of May 20, 1862, the husband made entry of the land in dispute. Final proof was made in September 1914 and patent was issued to him April 7, 1919. Wyoming was the domicile of matrimony of the parties, and this land their home, when, in September, 1918, the husband deserted the wife. Since their separation, the wife has continued to occupy the land as her home, and the husband has resided in South Dakota. Such was the situation of the parties in March, 1920, when the wife commenced her action for divorce. Her petition in that action, in addition to the allegations in support of the...