Elvins v. Elvins

• Decision Date: 16 July 1913
• Citation: 159 S.W. 746,176 Mo. App. 645
• Parties: ELVINS v. ELVINS et al.
• Court: Missouri Court of Appeals

159 S.W. 746

176 Mo. App. 645

ELVINS v. ELVINS et al.

St. Louis Court of Appeals. Missouri.

July 16, 1913.

1. JUDGMENT (§ 17) — SERVICE BY PUBLICATION — PROCEEDINGS IN WHICH AUTHORIZED.

Under Rev. St. 1909, § 8295, providing that, when a husband shall abandon his wife and neglect to maintain her, the circuit court shall order such support to be paid by the husband for the wife and children out of his property, section 8301 providing that like process and proceedings shall be had as in other civil suits, and section 1770 authorizing service by publication in partition, divorce, etc., and all actions at law or in equity which have for their object the enforcement or establishment of any lawful right, against any property within the jurisdiction of the court, in an action under section 8295 in which the administrator of an estate in which the husband had an interest was made a defendant and a judgment asked enjoining him from paying such interest to the husband, an order allowing a sum to the plaintiff for support pendente lite out of the husband's estate and ordering that she recover such sum from defendant and have execution was void for want of jurisdiction where service was by publication, whether or not the action could be maintained on such service as one quasi in rem, since the order did not seek to appropriate any distinct property to plaintiff's support nor have the characteristics of a judgment in rem but was in form a general judgment to be enforced by execution.

2. JUDGMENT (§ 17) — SERVICE BY PUBLICATION.

Service by publication or personal service beyond the limits of the state will not support a judgment in personam.

Appeal from Circuit Court, St. Francois County; Peter H. Huck, Judge.

Action by Anna M. Elvins against William Elvins and another. From an order granting an allowance for maintenance pendente lite and suit money, the defendant named appeals. Reversed and remanded.

Pollitte Elvins, of Elvins, and Edward A. Rozier, of Farmington, for appellant. F. W. Fitch, of Omaha, Neb., and Merrill Pipkin, of Farmington, for respondent.

ALLEN, J.

Anna M. Elvins, the plaintiff, is the wife of the defendant William Elvins. The action is one for maintenance of plaintiff and her minor child born of the marriage. The defendant Carr Hartshorn is the administrator of the estate of one Jesse M. Elvins, of which said estate the defendant William Elvins is a distributee.

The petition sets up the facts concerning the marriage of plaintiff to the defendant William Elvins in the state of Missouri, and the birth of a son, Thomas Lee Elvins, by that marriage, 14 years of age at the institution of the suit, recites in detail the removal of plaintiff and said defendant from this state and the various changes in their places of abode thereafter, and plaintiff therein alleges ill treatment, neglect, nonsupport, and desertion of herself and her infant son by said defendant; that she has been compelled to support herself and her said minor son; that she is without means whereby to provide for the support and maintenance of herself and said child; and that "plaintiff is informed and believes that said defendant is now residing in or near Bakersfield, Kern county, Cal." The petition further alleges that the defendant William Elvins is a son and one of the heirs at law of one Jesse M. Elvins, deceased, and entitled to a share in the estate of the latter; that said estate is of the reasonable value of $75,000; and that the share of said defendant Wm. Elvins therein is of the value of at least $12,500; that the defendant Carr Hartshorn is the duly qualified administrator of said estate; and that, aside and apart from his said interest in the estate mentioned, the defendant William Elvins has no property or money within the jurisdiction of this court or elsewhere, so far as plaintiff is advised.

The plaintiff prays judgment against defendant William Elvins in the sum of $3,600, and that the court make a reasonable allowance for the support and maintenance of the plaintiff and of her minor child until the latter becomes of age, and for attorney's fees, and prays that the defendant William Elvins be enjoining from selling, assigning, transferring, or disposing of his interest in the estate of Jesse M. Elvins, deceased, or any part thereof, and that the defendant Carr Hartshorn, as administrator of said estate, be enjoined and restrained from paying over to the defendant William Elvins, or any one else, any portion of said estate belonging to defendant William Elvins pending the determination of this suit.

The defendant administrator, Carr Hartshorn, was personally served with summons in this state. A summons was issued to any sheriff of the state of California for defendant William Elvins, the appellant here, and personal service was had upon him in said state. Thereafter appellant, appearing for the purpose of the motion only, filed a motion to quash the return of the service of the said summons upon him, which motion was by the court sustained. Thereupon plaintiff filed an affidavit of nonresidence of appellant, and the court ordered that he be notified by publication, and publication thereof was duly made. Thereupon appellant, limiting his appearance specially for the purpose thereof, filed a plea averring "that plaintiff ought not to have nor maintain her action herein because neither the plaintiff nor this defendant is now or was at the time of the commencement of this action a resident of the state of Missouri, but that the plaintiff is and was at the time of the commencement of this action a resident of the state of Nebraska, and that this defendant is and was at the time of the commencement of this action a resident of the state of California and was not found either in this state or elsewhere."

This plea was by the court overruled. Thereafter the plaintiff filed in the cause a motion for allowance for maintenance pendente lite and suit money. This motion came on to be heard, appellant not appearing, and was by the court sustained, and the sum of $350 was allowed the plaintiff "out of the estate of defendant for her support and maintenance"; and it was adjudged by the court "that she have and recover from defendant said sum of $350 and have execution."

The only question raised by the appeal relates to the jurisdiction of the court to make the order appealed from in view of the fact that the service as to defendant William Elvins was by publication. The action, as is conceded by respondent, is based upon a special statute, viz., section 8295, R. S. 1909, which is as follows: "When the husband, without good cause, shall abandon his wife, and refuse or neglect to maintain and provide for her, the circuit court, on her petition for that purpose, shall order and adjudge such support and maintenance to be provided and paid by the husband for the wife and her children, or any of them, by that marriage, out of his property, and for such time as the nature of the case and the circumstances of the parties shall require, and compel the husband to give security for such maintenance, and from time to time make such further orders touching the same as shall be just, and enforce such judgment by execution, sequestration of property, or by such other lawful means as are in accordance with the practice of the court; and as long as said maintenance is continued, the husband shall not be charged with the wife's debts, contracted after the judgment for such maintenance."

In connection with the section above quoted the subsequent section, 8301, may be noted. That section is as follows: "The petition of a married woman for any of the purposes before mentioned may be filed and the case heard and determined in the circuit court, and the like process and proceedings shall be had as in other civil suits."

By section 1770 service by publication is authorized: "In suits in partition, divorce, attachment, suits for the foreclosure of mortgages and deeds of trust, and for the enforcement of mechanics' liens and all other liens against either real or personal property and in all actions at law or in equity, which have for their immediate object the enforcement or establishment of any lawful right, claim or demand to or against any real or personal property within the jurisdiction of the court."

It must be conceded that, if the order here appealed from is purely a judgment in personam, then the...