Matthews v. Matthews

• Decision Date: 10 January 1928
• Citation: 159 N.E. 713,247 N.Y. 32
• Parties: MATTHEWS v. MATTHEWS.
• Court: New York Court of Appeals Court of Appeals

247 N.Y. 32

159 N.E. 713

MATTHEWS

v.MATTHEWS.

Court of Appeals of New York.

Jan. 10, 1928.

Action by Anna M. Matthews against William Thorne Matthews. Judgment of the Special Term, for plaintiff, was affirmed, and the appeal from certain orders was dismissed by the Appellate Division (220 App. Div. 825, 222 N. Y. S. 852). From such order of affirmation and dismissal, the defendant appeals.

Affirmed in part, and reversed in part.

See, also, 221 App. Div. 795, 223 N. Y. S. 889.

Appeal from Supreme Court, Appellate Division, First department.

Richard M. Page and William H. Page, both of New York City, for appellant.

Barnett E. Kopelman, of New York City, for respondent.

ANDREWS, J.

[1] An action for separation was brought by the plaintiff against the defendant who was a resident of New Jersey. No service having been made upon him an order was obtained ex parte under section 1171-a of the Civil Practice Act sequestrating his property within the state and directing the payment from it of counsel fees and alimony. We held the proceeding was in the nature of an attachment. Property of a defendant resident or nonresident, upon whom personal service could not be made within the state, might be seized and held subject to further disposition by the court. But as in the case of an attachment this might not be done as regards a nonresident until by personal or constructive service of the summons jurisdiction of the action had been obtained. Thereafter the court may enter judgment and dispose of the sequestered property. Here, however, no attempt had been made to serve the defendant. The order, therefore, was vacated ab initio. Matthews v. Matthews, 240 N. Y. 28, 147 N. E. 237, 38 A. L. R. 1079.

Thereafter the plaintiff obtained an order for service of the summons and complaint upon the defendant by publication and such service was made. The defendant did not appear. Proper proof being had, a judgment by default was entered. This original judgment was subsequently amended and as it now stands it decrees the separation of the plaintiff and defendant; decrees that, upon personal notice to the defendant or upon such notice as the court shall direct, the plaintiff may apply for her alimony and expenses payable out of his real and personal property within the state; appoints a receiver of this property, with directions that he take possession thereof, and directs the receiver to apply such property to the payment of such sums as may be awarded to the plaintiff, and enjoins the defendant from disposing of the same.

The claim of the appellant is that, while the decree of separation is valid here, the decree appointing a receiver of his property is void. He is, as has been said, a nonresident. No valid proceedings under Civil Practice Act, § 1171-a, were taken. Over this property the court has never obtained any jurisdiction whatever.

[2][3][4] This is so. In actions for divorce or separation brought by one of our citizens against a nonresident service by publication does, so far as we are concerned, give our courts full jurisdiction to fix the marital status or relations of the plaintiff. We cannot, however, thus give a personal judgment that will bind the defendant, except in so far as he has property in this state of which we may take possession. And it is not enough that at the time judgment is rendered he in fact has property within our jurisdiction. The right to dispose of it rests upon a prior seizure. Only so does the defendant receive notice that he has rights which should be protected. It must thereforeappear, before a judgment is entered purporting to deal with a...