Hanscom v. Hanscom

• Decision Date: 14 March 1895
• Citation: 39 P. 885,6 Colo.App. 97
• Parties: HANSCOM v. HANSCOM et al.
• Court: Colorado Court of Appeals

39 P. 885

6 Colo.App. 97

HANSCOM v. HANSCOM et al.

Court of Appeals of Colorado

March 14, 1895

Error to district court, El Paso county.

Action by Charlotte H. Hanscom against George G. Hanscom and others. From a judgment dismissing the complaint, plaintiff brings error. Reversed.

Harry E. Wilson and Wells, Taylor & Taylor, for plaintiff in error.

A.T Gunnell, amicus curiae.

THOMSON J.

This is a suit for alimony. The complaint contains allegations which if true, would entitle the plaintiff to a divorce, but a divorce was not prayed. The complaint also avers fraudulent conveyances, made by the defendant George G. Hanscom, the husband of plaintiff, to the defendants George B. Hanscom and Martin Van Nason, of his real estate in Colorado specifically describing it, for the purpose of defeating any claim of the plaintiff against him for alimony or separate maintenance. The complaint further alleges the transfer by him to George B. Hanscom of his personal property, the withdrawal from bank of his money, amounting to about $20,000, the taking of his promissory notes, mortgages, and other evidences of debt, his flight from this state, and his continued absence therefrom; and concludes with a prayer for alimony to be adjudged a lien upon the property described and for a decree that the fraudulent conveyances be set aside, and that such portion of the property as may be necessary to satisfy the judgment be sold for that purpose. The principal defendant being absent from his domicile, and beyond the reach of the process of the court, upon proper proceedings had, and affidavit executed publication of summons was ordered and made in conformity with law. The court dismissed the complaint, for the reason, as it appears, that it considered itself without jurisdiction to render any judgment in the case, unless personal service of process was first had upon George G. Hanscom. The question submitted to us for determination is the effect in this case of constructive service of summons upon the principal defendant. Section 41 of the Code specifies the conditions upon which service by publication may be allowed, and provides that publication shall be made only in cases of attachment, foreclosure, claim and delivery, divorce, or other proceeding where specific property is to be affected, or the procedure is such as is known as a proceeding in rem. To render a publication of summons effective for any purpose, it must be made in one of the enumerated cases. But a judgment obtained upon this kind of service, except in case of divorce, binds only the property brought within the jurisdiction of the court. It does not authorize a general judgment against the defendant. A judgment against him is allowed only upon his voluntary appearance to the action, or upon actual service of summons in one of the ways prescribed by sections 38 and 40 of the Code. The theory of the complaint is that the plaintiff is entitled to a lien against the property of her husband for the amount of alimony which may be awarded her, and to a decree in the same proceeding enforcing the lien. If this theory is correct, the necessary preliminary proceedings having been had, service of summons upon him was properly made by publication. The enforcement of a lien is a proceeding in rem, and in such proceeding publication of the summons may be made, where service cannot be had otherwise, as to any or all of the parties against whom a decree is sought, or who must be before the court to enable it to grant the relief. Our statute concerning divorce and alimony provides that when a divorce is decreed the court may make such order touching the alimony and maintenance of the wife as, from the circumstances of the parties, and the nature of the case, shall be fit, and may enforce the payment of the same in any manner consistent with the rules and practice of the court. Sess.Laws 1889, p. 153. Under this broad and comprehensive language the court would have the authority to adjudge the alimony allowed to be a charge upon the land described in the bill, and to subject the land to its payment. See Draper v. Draper, 68 Ill. 17; Wightman v. Wightman, 45 Ill. 167; O'Callaghan v. O'Callaghan, 69 Ill. 552. But the statute provides for alimony only in case a divorce is granted. We have no statute authorizing the allowance of alimony except in connection with a divorce. This proceeding is for alimony alone, and therefore does not come within the statute, so that, if it can be upheld, it must be in virtue of some general principle upon which a court of equity, as such, is authorized to proceed. Following the English decisions, the jurisdiction to decree alimony as an independent relief has been denied in many of our states; but in others, including this, a different doctrine has been announced. In Daniels v. Daniels, 9 Colo. 133, 10 P. 657, our supreme court held alimony to be within the jurisdiction of courts of equity independently of the statute, and to be a relief which might be granted, although no divorce was prayed. It may therefore be considered as established in this state that upon a proper case made equity will award alimony, or separate maintenance, to a wife, in a proceeding where no divorce is sought. This seems to be conceded, but the contention, as we understand it, is that a claim for alimony apart from divorce involves only a personal liability against the husband, and cannot be made a charge...