Elvins v. Elvins
| Decision Date | 16 July 1913 |
| Citation | 159 S.W. 746,176 Mo.App. 645 |
| Parties | ANNA M. ELVINS, Respondent, v. WILLIAM ELVINS et al., Defendants; WILLIAM ELVINS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Francois Circuit Court.--Hon. Peter H. Huck, Judge.
REVERSED AND REMANDED.
Politte Elvins and Edward A. Rozier for appellant.
(1) The judgment appealed from is a judgment in personam; for it is for a definite sum of money to be recovered by fi. fa execution from the general property of the defendant William Elvins. Beyer v. Trust Co., 63 Mo.App. 521; State ex rel. v. Blair, 238 Mo. 154; Moss v Fitch, 212 Mo. 484; Smith v. McCutcheon, 38 Mo 415; Abbott v. Sheppard, 44 Mo. 273; Ellison v. Martin, 53 Mo. 575; Wilson v. Railroad, 108 Mo. 588; Mercantile v. Bettles, 58 Mo.App. 384. (2) The judgment for suit money in divorce proceedings, while having the marriage relation as the rem upon which the jurisdiction of the court depends, has been repeatedly held to be void when rendered upon constructive service. Ellison v. Martin, 53 Mo. 575; Hedrix v. Hedrix, 103 Mo.App. 47; Pennoyer v. Neff, 95 U.S. 714; Abbott v. Sheppard, 44 Mo. 273; Moss v. Fitch, 212 Mo. 484. (3) The record clearly discloses that William Elvins was brought into court by publication. Adams v. Coyle, 95 Mo. 507; Milner v. Shipley, 94 Mo. 109; Reed Bros. v. Nicholson, 93 Mo.App. 36. (4) The action being a personal one, and no res having been brought into court, the circuit court of St. Francois county acquired no jurisdiction. Mercantile Co. v. Bettles, 58 Mo.App. 384. (5) William Elvins, being at all the times of this litigation, a nonresident of the State of Missouri, and having been notified only by constructive service, was not subject to a judgment in personam. Milner v. Shipley, 94 Mo. 109; State ex rel. v. Scott, 104 Mo. 26; Land v. Bretz, 125 Mo. 418; McIntyre v. McIntyre, 80 Mo. 470; State ex rel. v. Seddon, 90 Mo. 523; Assurance Co. v. Waldron, 238 Mo. 62; Reed Bros. v. Nicholson, 93 Mo.App. 36; Bank v. Suman, 79 Mo. 523; Brown v. Langlois, 70 Mo. 226; Cloud v. Pierce, 86 Mo. 367; Adams v. Coyle, 95 Mo. 507. (6) The procedure adopted by appellant is well supported by authority. Long v. Long, 78 Mo.App. 32; State ex rel. v. Karns, 78 Mo.App. 51; Thomasson v. Ins. Co., 114 Mo.App. 114; Newcomb v. Railroad, 182 Mo. 707; State ex rel. v. Seddon, 93 Mo. 520; Hedrick v. Hedrick, 157 Mo.App. 636.
F. W. Fitch and Merrill Pipkin for respondent.
(1) Where the wife's petition shows that the husband has absconded, or is a nonresident of the State, having property within the jurisdiction of the courts in the State such service may be had by publication as in other equitable cases. Rhoades v. Rhoades, 78 Neb. 459; Benner v. Benner, 63 Ohio St. 220; Hanscom v. Hanscom, 6 Colo.App. 97; Murray v. Murray, 115 Cal. 266; Hiner v. Hiner, 153 Cal. 256; Osgood v. Osgood, 153 Mass. 98; Hinds v. Hinds, 80 Ala. 225. (2) In a suit for maintenance, under a statute authorizing a court to grant separate maintenance where the husband, without just cause has deserted his wife, if the court is satisfied from the petition of the plaintiff (or evidence if he so orders a hearing thereon), that the plaintiff's suit is brought in good faith, that the husband has property, and the wife is without means, then no matter pertaining to the defense or question of the jurisdiction of the court over the parties will be entered into on such hearing for temporary maintenance pendente lite. Miller v. Miller, 33 Fla. 453; Milliron v. Milliron, 9 S.D. 181; Harding v. Harding, 144 Ill. 588; Storke v. Storke, 99 Cal. 62; Smith v. Smith, 113 Cal. 268. (3) In statutory maintenance cases, the court may subject and sequestrate the property. Meyerl v. Meyerl, 125 Mich. 607; Walcott v. Walcott, 114 Mich. 528. Appellant Williams Elvins both by his demurrer to the plaintiff's petition and by his appeal to this court from the order allowing temporary alimony or support pendente lite, has entered a general appearance in this case and jurisdiction is now acquired for all purposes. 3 Cyc. 506; Rippstein v. Ins. Co., 57 Mo. 86; Johnson v. Tostevin, 60 Ia. 46; Thompson v. Assn., 52 Mich. 522; Carter v. Tallant, 51 Kan. 516; Chaffin v. Fulkerson, 95 Ky. 277; Pendleton v. Pendleton, 112 S.W. 674; Redick v. Newburn, 76 Mo. 423; Gant v. Railroad, 79 Mo. 502; Blunt v. Railroad, 55 Mo. 157; Witting v. Railroad, 28 Mo.App. 103; McCubrey v. Lankis, 74 Minn. 302; Lillard v. Brannin, 91 Ky. 511.
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, fourteen 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, California."
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 seventy thousand dollars, and that the share of said defendant Wm. Elvins therein is of the value of at least twelve thousand, five hundred dollars; and 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 $ 3600, 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 enjoined 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 anyone 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, Revised Statutes 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...
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