Ellison v. Martin

• Decision Date: 31 October 1873
• Citation: 53 Mo. 575
• Parties: JAMES ELLISON, Sen., Respondent, v. ELIZABETH MARTIN, et al., Appellants.
• Court: Missouri Supreme Court

53 Mo. 575

JAMES ELLISON, Sen., Respondent,

v.ELIZABETH MARTIN, et al., Appellants.

Supreme Court of Missouri.

October Term, 1873.

Appeal from Adair Circuit Court.

DeFrance & Halliburton, for Appellants.

I. On a notice by publication, a general judgment cannot be taken against a defendant who does not appear to the action. (Smith vs. McCutchen, 38 Mo., 415; Latimer vs. U. P. R. R. E. D., 43 Mo., 105; Fithian vs. Monks, 43 Mo., 502; Abbott vs. Sheppard, 44 Mo., 273.)

II. The sections of the statute, which provide for alimony and maintenance, contemplate a case where the defendant is in court by personal service or appearance. (W. S., 1008, § 13; 534, § 6; 535, § 13; 533, § 2.)

III. Where a party commences a suit against a non-resident defendant in which he wishes a judgment for money, and gives notice by publication, he must state the amount claimed in the publication; if he does not, the judgment will be void. (W. S., 1008, § 13; Haywood vs. Russell, 44 Mo., 252, and cases cited.)

Ellison & Ellison, for Respondent.

I. Alimony is an incident to a divorce suit. (2 Bish. on Mar. and Div., side p. 488.)

The court necessarily has the power to grant alimony, whenever it has the power to grant a divorce.

II. The woman is compelled to sue for a divorce where her home is at the time. (W. S., 533, § 2.)

The husband might abandon her, leave property, and be abundantly able to support her; and yet, if the appellant's position be true, she should starve and suffer amidst an abundance, because the husband had purposely gone beyond the reach of a summons.

It seems then naturally to follow from the very necessity of the thing, that alimony can be allowed on notice by publication. Again, a court in granting alimony does not do so by a regular judgment as in other cases, but simply gives it by order and as an incident to the main proceeding. (W. S., 534, § 6; 2 Bish., Mar. and Div., (4th Ed.) side p. 488; Lawson vs. Shotwell, 27 Miss., 630; Jones vs. Jones, 18 Maine, 308; 2 Story Eq., Jurisp., 908, (top p., 6 Ed.)

These cases from Mississippi and Maine show, that if the court has the right to grant the divorce, it in consequence has the right to give alimony. By section 6 (W. S., 534,) the court is authorized to give maintenance during suit.

III. The statute clearly indicates alimony should be granted. No petition for a review of any judgment of divorce shall be allowable; but there may be a review of any order touching the alimony as in other cases. (W. S., 535, § 11.)

IV. The husband's property, made so by his reducing it to possession before any divorce suit, can be divested out of him. (W. S., 535, §§ 8, 9.) Could it be contended, that none of this could be done by order of publication?

ADAMS, Judge, delivered the opinion of the court.

This was a partition case, which resulted in a judgment for the sale of the lands for the purpose of division of the proceeds among the parties according to their respective interests therein as adjudged by the court.

The lands are situated in Adair county, and belonged to Rolla Martin, who died intestate, leaving seven heirs at law entitled to these lands, one of whom was Franklin, alias French Martin.

Parmelia Martin was the wife of French Martin, and instituted a suit for a divorce against him in the Lewis Circuit Court. In her petition for a divorce she alleged, that her husband, French Martin, was the owner of eighty acres of land in Adair County, but did not describe the land; she asked for alimony during the pendency of the suit, and for a final judgment for alimony, but did not demand any judgment against the land itself. The said French Martin was a non-resident of this State, and was proceeded against as such in the divorce suit by order of publication. He made no appearance, and a judgment by default was rendered against him, which was made final at a subsequent term. And at the time it was made final, the court also rendered a personal general judgment against him for two hundred dollars for alimony, and ordered execution to be issued thereon. An execution was issued on this general judgment, in favor of the wife, to the sheriff of Adair county, and levied on French Martin's interest in the land in dispute, and the sheriff sold such interest, and the plaintiff bought the same, and took the sheriff's deed therefor.

The only title set up by the plaintiff is predicated on this sheriff's deed.

The court held, that it conveyed to the plaintiff French Martin's interest in the premises, and that the plaintiff was...