Dillon v. Starin

• Decision Date: 16 April 1895
• Citation: 44 Neb. 881,63 N.W. 12
• Parties: DILLON v. STARIN.
• Court: Nebraska Supreme Court

44 Neb. 881

63 N.W. 12

DILLON

v.STARIN.

Supreme Court of Nebraska.

April 16, 1895.

Syllabus by the Court.

1. In an action for divorce, where the husband is a nonresident, served only by publication of notice, and he does not appear, the court has no jurisdiction to render a personal judgment as for alimony.

2. Section 18, c. 25, Comp. St., providing that on dissolution of a marriage the court may make a decree restoring to the wife personal estate that shall have come to the husband by reason of the marriage, or awarding to her the value thereof, refers to property which the law gives the husband by reason of the marriage, and not to property obtained by the husband from the wife by gift or contract.

3. A petition alleging that a certain sum had come to the husband by reason of the marriage, and praying restitution thereof, is not supported by proof of money voluntarily advanced by the wife to the husband after the marriage.

Error to district court, Otoe county; Chapman, Judge.

Action by Nellie B. Starin against Oscar Dillon to have a judgment for alimony decreed a lien on defendant's property. Plaintiff had judgment, and defendant brings error. Reversed.M. L. Hayward, for plaintiff in error.

Jno. C. Watson, for defendant in error.

Good & Good, amici curiae.

IRVINE, C.

The record in this case discloses that the parties were married in Missouri in 1875. In 1879 they took up their residence in Kansas. Some time thereafter the defendant in error came to the home of her mother, in Nemaha county, in this state, and, after residing with her mother for something more than two years, brought action in the district court of Nemaha county for a divorce, and for alimony, or, rather, for a divorce and the restitution to her of the value in money of personal property which it was averred had come to the possession of Dillon by reason of the marriage. No personal service was had on Dillon. He was not in the state, nor was he a resident of the state. Constructive service was held by publication, and a decree allowed granting the defendant in error a divorce, and giving her judgment for $1,000, which the court found the plaintiff in error had received from the defendant in error because of the marriage. After the rendition of this decree the defendant in error married one Starin and removed to Minnesota. The plaintiff in error has also married, and at the time the present action was begun resided in Arkansas. Dillon's father died in Otoe county, and, Dillon having temporarily come into that county because of his father's death, the present action was there instituted by Mrs. Starin. The theory of the action will best appear by a summary of the petition. It alleged the divorce proceedings in Nemaha county, and set out in extenso the petition in that case. It then reasserted the truth of the allegations of that petition. It pleaded the decree; that the judgment allowed therein was not paid; averred the death of Dillon's father, and that Dillon had, as his father's heir, become seised of certain real estate in Otoe county described in the petition. The prayer was for a judgment of $1,000, with interest from the date of the first decree, and that such judgment be charged upon said real estate as a lien thereon. Dillon, in answer, denied the truth of the allegations upon which the divorce was granted; denied that he had any knowledge of those proceedings; averred that he never received from the plaintiff any sum, except $300, of which he had repaid $165, the remainder having been consumed for the maintenance of the family; denied the jurisdiction of the court to grant the relief prayed; and averred that the judgment for money in the divorce case was void. The case was tried to the court without a jury, the court finding that defendant had used of plaintiff's separate property the sum of $600, for which sum, with interest, amounting to $1,049.50, judgment was rendered against the defendant, and made a lien on defendant's interest in the land of his father. To reverse this judgment or decree the defendant instituted these proceedings.

Some of the assignments of error are directed against the admission of evidence. These assignments will not be noticed, for the reason that the case was tried to the court, and the admission of improper evidence was therefore not in itself reversible error. The assignment that the finding and judgment are not supported by sufficient evidence presents the questions which have been argued by counsel.

Our statute (chapter 25, § 10, Comp. St.) provides that in all cases of divorce, alimony, and maintenance, when personal service cannot be had, service by publication may be made as provided by law in other civil cases under the Code of Civil Procedure. This statute is wholly ineffectual to sustain a judgment for alimony or maintenance based upon service by publication against a nonresident who does not appear in the action. It has been many times decided in this state and elsewhere that a judgment for alimony is a judgment in personam. It is perfectly clear upon principle, and thoroughly settled by the authorities, that while a state may provide for constructive service in a divorce case, so that the decree rendered will be valid as affecting the status of the parties, it is beyond the power of the legislature to confer jurisdiction to render a personal judgment against a nonresident in this manner, and that a judgment for alimony based on such service is void. Bunnell v. Bunnell, 25 Fed. 214;Rigney v. Rigney, 127 N. Y. 409, 28 N. E. 405;Beard v. Beard, 21 Ind. 321;Lytle v....