Downs v. Downs' Adm'r

• Decision Date: 04 October 1906
• Citation: 123 Ky. 405,96 S.W. 536
• Parties: DOWNS v. DOWNS' ADM'R.
• Court: Kentucky Court of Appeals

96 S.W. 536

123 Ky. 405

DOWNS v. DOWNS' ADM'R.

Court of Appeals of Kentucky.

October 4, 1906

Appeal from Circuit Court, Henry County.

"To be officially reported."

Action by Allie Downs against the administrator of John Downs deceased, for the settlement of the estate and to subject it to the satisfaction of a judgment in favor of plaintiff against deceased. From a judgment for defendant, plaintiff appeals. Affirmed.

R. R Tiffany, W. S. Pryor, H. K. Bourne, and John W. Ray, for appellant.

John D Carroll, for appellee.

BARKER J.

The appellant, Allie Downs, intermarried with John Downs in the state of Missouri in 1891. After their marriage they moved to the state of Indiana, where they lived for some time as man and wife, but where the appellant, owing, as she claims, to the brutal treatment of her husband, left him and returned to her former home in Missouri, where she afterward instituted an action against him for divorce, which was granted her, and in addition she was awarded a judgment against him for the sum of $1,500 as alimony. This judgment was obtained by constructive process. After residing in Indiana for some time after the obtention of the judgment by his wife, Downs returned to his old home in Eminence, Ky. where he died intestate, without having again married, and leaving an estate valued at about $8,000. The appellant then instituted this action in the Henry circuit court, for the purpose of settling his estate, and subjecting it, in so far as that was necessary, to the payment of her judgment. Her claim was resisted by the personal representative and heirs of the decedent, mainly upon the ground that the judgment, being in personam, is void for want of jurisdiction in the Missouri court.

For the purpose of discussing the question thus arising, it may be assumed that appellant was legally domiciled in the state of Missouri at the time of the institution of her action there, that all of the proceedings had were entirely regular, and that the statutes of Missouri fully warranted the judgment which was returned. The question still recurs: Could the statutes of Missouri authorize, by any procedure short of actual process upon the defendant within its boundaries, or the entry of his appearance to the action, a personal judgment against him? We have no doubt of the jurisdiction of the Missouri court to decree the divorce of the appellant from her husband. This was a procedure in rem, and of the res undoubtedly the court had jurisdiction; the plaintiff being lawfuly domiciled in Missouri. But a judgment for a sum of money by way of alimony is in personam, and in order to acquire jurisdiction for this purpose it was necessary to obtain jurisdiction of the person of the defendant. This, as said before, can only be done in one of two ways: First, by the service of process upon him within the territorial jurisdiction of the court; or, second, by the voluntary entry of his appearance to the action. No state can, by force of its own laws, acquire jurisdiction of the person of an absent defendant. If it could, then no defendant, no matter how far removed from the country in which the plaintiff resides, could escape being dragged away from his home in order to defend any claim set up against him, or, failing to do so, having rendered against him a judgment by default, which could follow him to the ends of the earth. Therefore it is of no moment that, as a part of the constructive process issued against the defendant in the procedure for divorce, a summons was issued in Missouri directed to a sheriff in Indiana, and by him served upon the defendant. The sheriff in Indiana acted only under authority of the laws of Missouri, and these had no force in the state of Indiana.

In Freeman on Judgments, § 564, the rule is thus stated "It is said that 'no sovereignty can extend its process beyond its own territorial limits, to subject either person or property to its judicial decisions. Every exertion of authority of this sort beyond this limit is a mere nullity."' And, speaking particularly of judgments of divorce, the learned author says (section 584): "Judgments procured in any state by constructive service of process upon nonresidents are, as ...