Hood v. Hood

• Decision Date: 13 May 1908
• Citation: 61 S.E. 471,130 Ga. 610
• Parties: HOOD v. HOOD.
• Court: Georgia Supreme Court

61 S.E. 471

130 Ga. 610

HOOD v. HOOD.

Supreme Court of Georgia

May 13, 1908

Syllabus by the Court.

A judgment in personam for temporary alimony and attorney's fees cannot be lawfully rendered in a divorce suit brought against a nonresident husband, who is not served with process within this state and does not appear in the case, but is only constructively served by publication.

[Ed Note.-For cases in point, seeCent. Dig. vol. 17, Divorce, § 591.]

Error from Superior Court, Pike County; E. J. Reagan, Judge.

Action by Sallie Hood against Frank E. Hood.Judgment for defendant and plaintiff brings error.Reversed.

E. F Du Pree, for plaintiff in error.

John F. Methwin and E. M. Owen, for defendant in error.

FISH C.J.

The question as to the validity of a judgment in personam rendered by a court of this state against a resident of another state, without personal service upon or appearance by the defendant came up for consideration and decision at an early date in the history of this court in the case of Dearing v. Bank of Charleston,5 Ga. 497, 48 Am.Dec. 300, in which there is a luminous and able discussion of the subject by Nisbet, J., who delivered the opinion of the court.It was there held: "The courts of this state have no extraterritorial jurisdiction, and cannot make the citizens of foreign states amenable to their process, or conclude them by a judgment in personam, without their consent.""A judgment in personam, rendered against an inhabitant of a foreign state, in a cause wherein he did not appear, although notice was served upon him by publication, under the second rule in equity," was "held to be a nullity as to him."The question was again before the court in Adams v. Lamar,8 Ga. 83, wherein the same learned judge delivered the opinion, and in which the principles announced in the Dearing Case were restated and followed.There are subsequent decisions of this court to the same effect, among them being King v. Sullivan,93 Ga. 621, 20 S.E. 76, wherein the case of Pennoyer v. Neff,95 U.S. 714, 24 L.Ed. 565, which is, perhaps, the leading case upon the subject in this country, was cited and followed, "in which it was held that a personal judgment, rendered by a state court against a nonresident of the state in an action upon a money demand, was without validity where the defendant was served by publication, but upon whom no personal service of process within that state was made, and who did not appear."See, also, Reynolds & Hamby Co. v. Martin,116 Ga. 495, 42 S.E. 796.

Although this court has never positively decided that this principle is applicable to a judgment for alimony, rendered in a divorce suit against a nonresident defendant in which there was neither personal service upon, nor appearance by, the defendant, it strongly intimated as much in Fleming v. West,98 Ga. 778, 27 S.E. 157, where the question was presented and discussed; but the decision was finally based upon the proposition that a decree for divorce and permanent alimony could not be granted at the first term after service by publication upon a nonresident defendant.In the opinion, delivered by Chief Justice Simmons, it was said: "If he[defendant] was a nonresident of the state, service could be made by publication; but while service of a nonresident of the state by publication, if made conformably to the statute, would be sufficient to give the court jurisdiction of the defendant so far as to authorize a decree for divorce, it has been held that it would not give jurisdiction so far as to authorize also a decree for alimony, and that while the decree in such a case is in rem in so far as it adjudicates as to the marital status, yet, if it undertakes as an incident of the divorce proceeding to deal with property rights of the defendant, it becomes in that respect a proceeding in personam, and, although it is competent for the legislature to authorize the courts to render a judgment for alimony upon constructive notice as against citizens of the state, it is not competent to do so as against nonresidents of the state.See2 Bishop, Marriage, Divorce, and Separation, § 35 et seq.;Id.§§ 78, 79;Doerr v. Forsythe,50 Ohio St. 726, 35 N.E. 1055, 40 Am.St.Rep. 703, and cases cited in notes."This is in accordance with the well-established general rule, which uniformly obtains in other jurisdictions, and which is laid down by other text-writers who have discussed the subject.In Stallings v. Stallings,127 Ga. 464, 56 S.E. 469, 9 L.R.A. (N. S.) 593 (8), it was held that "service of an application for temporary alimony pending a suit for divorce and permanent alimony must be personal"; but in that case the petition in the divorce proceeding alleged that the legal residence of the defendant was within this state, but that he was without this state and would remain so for an indefinite period of time, and it was accordingly held that service could not be perfected upon him as a nonresident.It was held, though, that "a judgment for alimony is a personal judgment"; citing Fleming v. West, supra, and other authorities.It seems, however, to have been uniformly held, in other jurisdictions where the question with which we are dealing has arisen, that a purely personal judgment or decree for alimony, rendered in a divorce proceeding in favor of a wife against her nonresident husband, who has not been served with process within the state where the suit is instituted, but has been constructively served by publication only, and who has not appeared in the case, is void even in the state where rendered.Smith v. Smith,74 Vt. 20, 51 A. 1060, 93 Am.St.Rep. 882;Ellison v. Martin,53 Mo. 575;Anderson v. Anderson,55 Mo.App. 268;Beard v. Beard,21 Ind. 321;Lytle v. Lytle,48 Ind. 200;Sowders v. Edmunds,76 Ind. 123;Elmendorf v. Elmendorf,58 N.J.Eq. 113, 44 A. 164;Rea v. Rea,123 Iowa 241, 98 N.W. 787;Johnson v. Matthews,124 Iowa 255, 99 N.W. 1064;Baker v. Jewell,114 La. 726, 38 So. 532;Dillon v. Starin,44 Neb. 881, 63 N.W. 12;Bunnell v. Bunnell (C. C.)25 F. 214.In Cooley's Constitutional Limitations (7th Ed.) 584, 585, the learned author says: "But in divorce cases, no more than in any other, can the court make a decree for the payment of money by a defendant not served with process, and not appearing in the cause, which shall be binding upon him personally.It must follow, in such a case, that the wife, when complainant, cannot obtain a valid decree for alimony, nor a valid judgment for costs.If the defendant had property within the state, it would be competent to provide by law for the seizure and appropriation of such property, under the decree of the court, to the use of the complainant; but the legal tribunals elsewhere would not recognize a decree for alimony or costs not based on personal service or appearance.The remedy of the complainant must generally, in these cases, be confined to a dissolution of the marriage, with incidental benefits springing therefrom, and to an order for the custody of the children, if within the state."

It has been held, however, in some cases, that a decree or judgment for alimony, based upon constructive service only, is valid as against property of the defendant husband which is within the territorial jurisdiction of the court, and is specifically proceeded against in the divorce proceeding and described in the petition for divorce and alimony, and from which the alimony is set apart, or upon which the judgment therefor is decreed to be a lien; it being held that as to such property such a proceeding is in rem.Harshberger v Harshberger,26 Iowa 503;Twing v. O'Meara,59 Iowa 326, 13 N.W. 321;Wesner v. O'Brien,56 Kan. 724, 44 P. 1090, 32 L.R.A. 289, 54 Am.St.Rep. 604.See, also, Rodgers v. Rodgers,56 Kan. 483, 43 P. 779.The ruling in Twing v. O'Meara, supra, went even further; for it was there held that, if there was property of the nonresident husband within the territorial jurisdiction of the court, it was sufficient if the petition prayed for alimony in the husband's property, without specifically describing it.But in a later case the Supreme Court of the same state held that a mere personal judgment for alimony, rendered against a nonresident defendant in a divorce proceeding upon mere constructive notice by publication, was void, and could...