Rea v. Rea

Decision Date08 March 1904
Citation98 N.W. 787,123 Iowa 241
PartiesELIZABETH M. REA, Appellant, v. DELTA D. REA AND ELIZABETH REA
CourtIowa Supreme Court

Appeal from Lee District Court.--HON. W. S. WITHROW, Judge.

ON the 5th day of October, 1898, a decree was entered in the district court of Lee county, at Keokuk, divorcing this plaintiff from the defendant, Delta D Rea; and, although the notice was by publication only, she was allowed alimony in the sum of $ 20,000, for which a personal judgment was entered. On the 1st of October, 1900, the defendant moved for a retrial, and that the judgment be set aside, and in support of the motion showed that he had applied for a divorce in South Dakota; that this plaintiff appeared and filed answer demanding alimony; and that decree was entered, without alimony, as prayed, December 9th following, no evidence having been introduced in behalf of this plaintiff. A bond of $ 200 was required as a condition precedent to ordering a new trial, and, as the defendant therein, after several extensions of time, failed to furnish it, the court, on motion of plaintiff, entered a decree October 5, 1900 confirming the judgment for alimony. In the petition the plaintiff alleged that some years ago the judgment defendant conveyed two tracts of improved real estate situated in Louisville, Ky., to the defendant, Elizabeth Rea, which she holds as trustee for him, and prayed that said property be subjected to the payment of the judgment. On hearing the court dismissed the petition, and plaintiff appeals.

Affirmed.

James H. Anderson and James C. Davis for appellant.

J. E and T. A. Craig and Chas. T. Laybourne for appellees.

OPINION

LADD, J.

The defendant Elizabeth Rea only was served with notice and defends. She pleaded to the jurisdiction of the court, and, this being overruled, omitted to file any farther answer. Had no evidence been adduced, there might have been something in the suggestion that the allegations of the petition should be taken as true. But evidence was introduced from which it conclusively appeared that the plaintiff's judgment was void, and that plaintiff was entitled to no relief. The service was by publication only, and there was no appearance. True, the statutes authorize decrees of divorce on constructive service. Such proceedings, though not strictly in rem, are of that nature, or, as sometimes said, are quasi in rem, in so far as they affect the marital status of the parties. As to alimony and costs, however, they are uniformly regarded as actions in personam, and all orders or judgments allowing either against a nonresident defendant who has neither appeared nor been served with process in the state where the suit is pending, and has no property therein, are invalid. Rigney v. Rigney, 127 N.Y. 408 (28 N.E. 405, 24 Am. St. Rep. 462); Prosser v. Warner, 47 Vt. 667 (19 Am. Rep. 132); Garner v. Garner, 56 Md. 127; Harding v. Alden, 9 Me. 140 (23 Am. Dec. 549); Van Storch v. Griffin, 71 Pa. 240; Beard v. Beard, 21 Ind. 321; 2 Bishop on Marriage and Divorce, 159; section 3800, Code. Nor can the judgment be sustained on the theory, as seems to be thought by appellant, that it is merely incidental to the decree of the divorce. Jurisdiction sufficient to support a decree changing the marital status will not necessarily sustain a judgment for alimony or costs. No final process is essential to enforce the decree of divorce, while a money judgment can only be collected by process against defendant or his property. Our statute authorizes the court, in granting the divorce, to enter such orders in relation to the property and maintenance of the parties as shall be right (section 3180, Code), and no doubt can be entertained as to the court's power to appropriate the nonresident's property within its jurisdiction for these purposes. Harshberger v. Harshberger, 26 Iowa 503; Twing v. O'Meara, 59 Iowa 326, 13 N.W. 321. In these cases the want of jurisdiction to make such orders, save when the subject-matter is present out of which alimony may be allowed, when the defendant is a nonresident, was clearly recognized.

II. But it is argued that vitality was injected into this void judgment by a ruling on a motion to confirm. The defendant, in pursuance of the provisions of section 3796 of the Code, moved that the judgment be set aside, and a retrial be granted, alleging, among other things, that the judgment was void. Thereupon the plaintiff moved that the decree previously rendered be confirmed. These motions came on for hearing November 19, 1900, when the court held that defendant was entitled to a retrial as to the amount of alimony, but, as a condition precedent, required the filing of a cost bond in the sum of $ 200. Time within which to do so was extended three times, when, on December 26, 1900, the motion for retrial was overruled, and the plaintiff's motion "that the decree rendered in this court heretofore about October 5, 1898, be now confirmed against the defendant, Delta D. Rea," and an entry made...

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