Noyes v. Noyes, 1050.

• Decision Date: 07 November 1939
• Docket Number: No. 1050.,1050.
• Citation: 9 A.2d 123
• Parties: NOYES v. NOYES et al.
• Court: Vermont Supreme Court

9 A.2d 123

NOYES

v. NOYES et al.

No. 1050.

Supreme Court of Vermont Rutland.

Nov. 7, 1939.

Appeal in Chancery, Rutland County; Charles B. Adams, Chancellor.

Action by H. Frank Noyes to enjoin Onolette G. Noyes and Elwin N. Smith from proceeding with levy of an execution on an alimony judgment. From the dismissal of plaintiff's bill of complaint, plaintiff appeals.

Decree reversed and cause remanded with directions.

Argued before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

Christopher A. Webber and Vernon J. Loveland, both of Rutland, for plaintiff.

Jones & Jones, of Rutland, for defendants.

SHERBURNE, Justice.

The plaintiff seeks to enjoin his former wife, Onolette G. Noyes, and Elwin N. Smith, a deputy sheriff, from proceeding with the levy of an execution on an alimony judgment against the plaintiff's property in this State. The case comes here upon the plaintiff's appeal from the dismissal of his bill of complaint.

From the agreed statement of facts it appears that the plaintiff and Onolette G. Noyes were married on June 26, 1934, and thereafter lived together in Rutland. On October 13, 1934, she filed a petition for separate maintenance, personal service of which was made upon him, and an order thereon was issued and personally served upon him on October 31, 1934, that he pay her twenty dollars per week alimony. After the service of this order upon him Noyes left Vermont, and has resided in the State of California since. He has never paid anything upon this order. In 1936, Noyes instituted an action for annulment in California. This action was dismissed and Mrs. Noyes had judgment for counsel fees and costs.

On July 30, 1937, Mrs. Noyes filed a libel for divorce against Mr. Noyes in Rutland County Court, in which she asked for alimony but neither attached nor mentioned any property of the libelee. Service was made upon Mr. Noyes, who was then residing in California, by the delivery to him there of copies pursuant to P.L. 2084. Mr. Noyes did nothing about appearing in this action, except that he and his attorney joined with Mrs. Noyes and her attorneys in filing in said court on November 26,

1937, a stipulation which reads as follows:

"State of Vermont,

"Rutland County, ss.

Onolette Noyes v. H. Frank Noyes

Rutland County Cour Docket #13218

"Stipulation

"It is hereby stipulated and agreed by and between Onolette J. Noyes, the libellant in the above entitled cause, and H. Frank Noyes, the libellee: that in the event a divorce is granted in the above entitled cause, and before the order is entered, the libellee shall forthwith pay to the libellant the sum of $1150 in lieu of all further alimony, counsel fees or expense money and as a full property settlement between said parties.

"It is understood that the settlement of $1,000 is to be made on the action for separate maintenance now pending in Rutland County Court, Docket #12673 and that upon said payment said order shall be vacated in said case as settled in full, and the action will be forthwith discontinued.

"The sum of $150 shall be paid to the libellant by the libellee as counsel fees and expense money in an action now pending in the Superior Court in the State of California in and for the County of Los Angeles in which the libellee is set forth as plaintiff and June Noyes as defendant, said action being a petition for annulment and in which action the defendant entered her appearance and contracted certain attorneys' fees; and an order being made by said Court to pay certain attorneys' fees which has never been complied with and upon the payment of said sum of $150 this order shall be vacated on behalf of the defendant; and that the libellee agrees to see that the action is discontinued.

"This stipulation is entered into between the parties as a complete settlement of all differences up to the present time and is in lieu of all alimony, counsel fees and expense money, past, present and future.

"Dated this 26th day of Nov. 1937. "Attest: Jones & Jones Onolette Noyes "Attorneys for Libellant. Libellant.

"Attest: B. L. Stafford H. Frank Noyes "Attorney for libellee Libellee"

Nothing has ever been paid according to this stipulation.

The divorce case came on for hearing on November 26, 1937, and was held open with the court, and further hearing on the matter of alimony was had on April 9, 1938, at which time a divorce was granted and judgment entered for $5,000 alimony to be paid forthwith. The order for alimony recited the failure of the libelee to make any payments pursuant to the order in the suit for separate maintenance and that the libelee was a beneficiary under a trust set up in the will of his late father, Hiram F. Noyes, and ordered that he be restrained from disposing of any of the assets of the estate until the judgment for the payment of alimony was complied with, and further ordered that the alimony ordered to be paid should be a lien on all of the real and personal estate of the libelee in the City of Rutland, and upon whatever interest he had in the estate of his late father, and upon certain real estate particularly listed which was inventoried by the trustees of said trust.

Under the trust above referred to numerous parcels of real estate were given to trustees to care for the same and pay the net rent, income and increase thereof to the widow of the testator during her natural life, and at her decease the trustees were directed to divide and distribute the trust estate between the testator's three children, of which H. Frank Noyes the plaintiff is one, in equal proportions, share and share alike; providing, however, that in case of the death of any of said children before the death of the widow, the share of such deceased child should be divided and distributed to the heirs of such child living at the decease of the widow. The original trustees having resigned or deceased, the three children of the testator are now the acting trustees by virtue of their appointment on June 1, 1933. These trustees have not filed their final account of the trust in the probate court, nor have they been discharged as such, nor have they divided and distributed the trust property to the beneficiaries. The widow died on November 14, 1938, since which date the probate court has made no order in the trust estate. On December 14, 1938, the several parcels of real estate were ordered sold in satisfaction of the alimony judgment and the clerk of the court was ordered to issue an execution to carry out the order of sale.

Only two points are briefed by the plaintiff, viz.: 1. "The judgment for alimony rendered as it was against a non-resident served without this State was void, since libelee made no appearance and his property, if any within this State, was not proceeded against"; and 2, "That even if the judgment were valid, the interest of H. Frank Noyes in the property levied upon was not subject to execution, the same being in the hands of trustees under an active trust."

A decree for the payment of money as alimony stands on no different ground than any money judgment, and without service of process upon the libelee in this State, or appearance, is inoperative except for the purpose of subjecting the property of the libelee, which has in some manner first been brought within the control of the court by the proceedings, to its payment. Prosser v. Warner, 47 Vt. 667, 19 Am.Rep. 132; Smith v. Smith, 74 Vt. 20, 51 A. 1060, 93 Am.St.Rep. 882; Wilder v. Wilder, 93 Vt. 105, 106 A. 562. Where, as in this case, the libel merely asks for the award of alimony, the situation is no different from any action for the recovery of money where property of the defendant is not attached or in any way brought under the jurisdiction of the court, and where the judgment obtained therein, in the absence of personal service within the State, or appearance, can have no relation to the defendant's property, but is entirely personal and void. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. See, also, cases cited in annotation under the heading "Where property is not proceeded against" in 29 A.L.R. 1385, 64 A.L.R. 1393. and 108 A.L.R. 1303. It follows that the service was inadequate to support the judgment for alimony.

Did the stipulation filed by the parties in the divorce action constitute an appearance by this plaintiff, the libelee therein? Stipulations or agreement entered into between the parties or their counsel with reference to a pending suit are usually regarded as amounting to a general appearance, unless the subject matter and nature of the stipulation are such that they in no way recognize the case as being in court. 6 C.J. S., Appearances, § 12, page 33. We cite a few illustrative cases. In Wetmore State Bank v. Courter, 97 Kan. 178, 155 P. 27, a stipulation giving the plaintiff more time to amend his petition was held to constitute an appearance. In Re Parker's Estate, 268 Mich. 79, 255 N.W. 318, a stipulation to put a case on the jury docket was so held. In City of St. Louis v. Senter Commission Co., 336 Mo. 1209, 84 S.W.2d 133, a stipulation as to amendments was so held. In Riker v. Kilinski, 309 Pa. 188, 163 A. 526, a stipulation extending the time limit for filing an affidavit of defense was so held. But in Dauphin v. Landrigan, 187 Wis. 633, 205 N.W. 557, a stipulation that the defendant should have time to appear did not constitute an appearance.

Andrew v. Buck, 97 Vt. 454, 458, 124 A. 74, discusses somewhat what constitutes a general appearance, saying that no infallible test exists for determining this question in all cases, and refers to the test adopted in Merchant's Heat & Light Co. v. J. B. Clow & Sons, 204 U.S. 286, 27 S.Ct. 285, 51 L.Ed. 488, of whether the defendant becomes an actor in the cause; and gives as common illustrations of the assumption of the role of actor in a suit, taking a trial on the merits, taking a continuance, challenging the pleadings by demurrer without limiting the issue to the...