Forrester v. Forrester
| Decision Date | 07 June 1923 |
| Docket Number | 3499. |
| Citation | 118 S.E. 373,155 Ga. 722 |
| Parties | FORRESTER v. FORRESTER. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
(a) Marriage imposes upon a husband the legal obligation to provide means for the maintenance of his wife.
(b) Abandonment by the husband and a willful failure to provide for the maintenance and support of his wife creates a liability on the part of the husband to the wife, which is a lawful demand, and which, when legally enforced, is called "alimony."
The property of a nonresident husband, which may be found in this state, may be seized and appropriated to the support of his wife, by proper proceedings quasi in rem in a court of equity which has jurisdiction of the subject-matter of the suit and possession of a res which may be subjected.
In a proceeding in rem, service may be perfected by seizure of the res.
Lack of service does not necessarily imply lack of jurisdiction.
Additional Syllabus by Editorial Staff.
In proceeding quasi in rem to seize debt due nonresident husband and apply it to wife's support, the husband, while denying the court's jurisdiction, cannot raise the points that the debtor has not been made a party, and that there has been no actual seizure, as such contentions are in effect demurrers, and waive the lack of jurisdiction.
The headnote is the authoritative expression of the court as such, to which, under the law, the entire court is committed.
In proceedings quasi in rem, to subject debt due nonresident husband to wife's support, there must, at some stage of the proceedings, be a seizure of the debt, and the garnishee must be made a party, but these are matters of procedure not affecting the jurisdiction.
Error from Superior Court, Worth County; R. Eve, Judge.
Suit by M. E. Forrester against A. L. Forrester. Judgment for plaintiff, and defendant brings error. Affirmed.
In proceedings quasi in rem, to subject debt due nonresident husband to wife's support, there must, at some stage of the proceedings, be a seizure of the debt, and the garnishee must be made a party, but these are matters of procedure not affecting the jurisdiction.
Mrs Mamie Forrester brought her petition against A. L. Forrester her husband, alleging that he is a resident of the state of Alabama; that he left petitioner without means of support, though she was unable to earn a livelihood; that she has no property, but is entirely dependent upon her father for support; that she and her husband are living in a bona fide state of separation; that she is a resident of Worth county, in this state, where this suit is brought; that the husband is the owner of a chose in action, to wit, a promissory note for the principal sum of $600, which amount is now due; that suit upon the note has been brought by A. L. Forrester; that there is no defense to the suit, and judgment by default will be rendered at the next term of the city court, and when judgment is rendered execution will issue thereon and be enforced against the property of her father, John M. Evans, maker of the note; that this is the only property owned by A. L. Forrester in the state of Georgia; that petitioner cannot obtain a valid decree against him for alimony in this state; and that it is necessary, in order to protect the rights of petitioner, that a court of equity seize the property referred to as a chose in action, by a decree of the court for the use of the petitioner. The prayers are that petitioner be granted permanent alimony and attorney's fees; that a decree in rem be entered in her favor against the property of the defendant--that is, the judgment and execution in the sum of $600, represented by the note referred to; that she have a judgment against Forrester for permanent alimony in such an amount as the court deems just; that a decree be entered in her favor as a judgment in rem against the property described; that such decree and judgment be declared a lien upon the property; and that general relief be granted. Service of the petition was made by publication.
The court overruled the motion, and to this judgment the defendant excepted.
Passmore & Forehand, of Sylvester, for plaintiff in error.
Smith & Christian, of Tifton, for defendant in error.
RUSSELL, C.J. (after stating the facts as above).
We think that the judge of the superior court properly overruled the motion to dismiss the plaintiff's equitable petition. To this motion to dismiss, as set forth in the statement of facts, the presiding judge attached the following qualifying note:
"It was admitted by attorneys Passmore & Forehand that all legal requirements for service had been met."
The lack of jurisdiction which is asserted by the plaintiff in error depends upon the insistence that a judgment for alimony being an action in personam, and the defendant husband being a nonresident of this state, service by publication is insufficient. To state the contention of the plaintiff in error in his own language as taken from the brief of his counsel:
As will appear from what we will say later, we do not know that the matter of publication is altogether so important as it seems to be considered by the plaintiff in error; but, considering the allegations of the petition, it is our opinion that the court had jurisdiction of the subject-matter of the suit and of the res which the petition sought to have the court apply to the satisfaction of the plaintiff's demand. We think that the principles underlying the decision of the lower court are of general application, and we see no reason why an exception should be made in the case of an application for alimony by which this proceeding should be excluded from the operation of the general rule. This plaintiff, a resident of Georgia, has a just claim for support against her lawful husband.
At common law as well as the statute of this state, a husband is bound to maintain and support his wife. Whatever sum may be necessary for that purpose is a demand which, when liquidated by the court by a judgment fixing its amount in such sum as may appear to the court to be just and adequate, is called alimony. Her husband, the debtor, after abandoning her, takes up his residence in the state of Alabama. A citizen of this state, who resides in Worth county, owes the nonresident a debt of $600, besides interest. Is the plaintiff in such a case remediless to enforce her legal demand for support, merely because this demand is for support, otherwise called alimony, instead of being a claim of some other nature? If the plaintiff in the present case, instead of being the wife of her nonresident debtor, were any other person to whom he was indebted, could she not enforce her demand by an attachment based upon nonresidence and perfect service by summons of garnishment upon the debtor of the nonresident? We apprehend that there can be but one answer to this question.
Aside from the fact that the demand for alimony cannot be enforced by attachment and garnishment, because this is a proceeding in law, is the fact that a demand for alimony is unliquidated and must remain unliquidated until fixed by a decree of the court, and this itself would absolutely preclude the plaintiff in the suit for alimony against a nonresident from proceeding by attachment. At law this plaintiff is remediless; and, in such a case, and whenever and wherever the law by reason of its universality is impotent to succor one who has a right, equity supplies the needful remedy. Whether the use of the term "equitable attachment" be appropriate or not, it is our opinion that equity, by a proceeding in rem and the seizure and appropriation of the res, can condemn all or so much of the res as is necessary for that purpose to the just demands of a citizen of this state, where the res, the property of the nonresident, is located in this state. It is true that our laws have no extraterritorial effect, and it may be true that in a particular case personal service cannot be perfected other than by publication; but the courts here still have jurisdiction of the subject-matter of the suit and of the res, and can apply the one to the other by a judgment in rem as suggested by Chief Justice Fish in Hood v. Hood, 130 Ga. 610, 61 S.E. 471, 19 L.R.A. (N. S.) 193, 14 Ann.Cas. 359. It is stated in the brief (and so far as our examination has extended it seems to be true) that the precise question now before us has never been directly decided in this state. However, it is insisted that under the rulings in Fleming v. West, 98 Ga. 778, 27 S.E. 157; Hood v. Hood, 130 Ga. 610, 61 S.E. 471, 19...
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