Reed v. Reed, No. 21571.

• Court: United States State Supreme Court of Ohio
• Writing for the Court: ALLEN
• Citation: 167 N.E. 684,121 Ohio St. 188
• Parties: REED v. REED.
• Decision Date: 19 June 1929
• Docket Number: No. 21571.

121 Ohio St. 188
167 N.E. 684

REED
v.
REED.

No. 21571.

Supreme Court of Ohio.

June 19, 1929.

Error to Court of Appeals, Cuyahoga County.

Action by Helen M. Reed against John M. Reed. Judgment for defendant was affirmed by the Court of Appeals, and plaintiff brings error. Reversed and remanded.-[By Editorial Staff.]

This case arose in the court of common pleas of Cuyahoga county as an action by Helen M. Reed against John M. Reed for divorce, alimony, and equitable relief. The parties below stood in the same relation to each other as in this court. The petition alleged various grounds to extreme cruelty and set up the necessary jurisdictional facts. That part of the petition material to this controversy is as follows:

‘The defendant is seized in fee of an undivided half interest in the following described pieces of real estate, the other half of which belongs to this plaintiff:

‘First Parcel.

‘Situated in the Township of Mentor, County of Lake, and State of Ohio, and being known as Lot No. 1007, having a frontage of 45 feet on the westerly side of Orchard Road, and being 144 feet in depth according to Plat recorded in Volume D, Pages 53 to 65, Lake County Records of Plats.

‘Second Parcel.

‘Situated in the City of Cleveland, County of Cuyahoga, and State of Ohio, and known as being part of Tract No. 14, Euclid Township; beginning at a point in the center line of Nottingham Road at its intersection with the southeasterly line of Mary A. Jefferies Subdivision as shown by plat recorded in Volume 26 of Maps, Page 22 of Cuyahoga County Records, said point being also south 34°>>>42' 15'’ West 0.75 feet from a stone monument; thence from said beginning point south 52°24''' East along the center line of Nottingham Road 247.0 feet to a point; thence North 37°25''' East 172 76/100 feet to the principal point of beginning, which is also the northeasterly line of a proposed street; thence deflecting to the right along the arc of a circle, forming a part of the Northeasterly line of said proposed street 7.51 feet. Said arc having a radius of 107.5 feet and chord which bears North 54°24'31'' West 7.50 feet; thence North 37°35' 30'' East 107.5 feet; thence South 52°24'30'' East 40 feet, said course being parallel with and distant Northeasterly at right angles 280 feet from the center line of Nottingham Road; thence South 37°35'30'' West, 99 78/100 feet to the North-easterly line of said proposed street; thence deflecting to the right along the arc of a circle forming a part of the Northeasterly line of said proposed street, 33.48 feet, said arc having a radius of 107.5 feet and a chord which bears North 65°19'52'' West 33.35 feet to the principal place of beginning, being further known as Sublot No. 25 in the Elworthy-Helwich Company's Bungalow Park Allotment No. 2.

‘Upon the second described real estate there is a first mortgage of Forty-Five Hundred Dollars ($4,500.00) payable Forth-Five Dollars ($45.00) per month.

‘Plaintiff claims that by reason of the above mentioned facts that she is entitled to divorce and alimony for her maintenance and her support out of the property of the defendant.

‘Wherefore this plaintiff prays that upon hearing of this case she may be granted a divorce from the defendant; that she may be granted reasonable alimony out of the property of the defendant; that the undivided one-half interest of the defendant in the above described parcels of real estate now standing in the joint names of the plaintiff and defendant may be decreed by this honorable court to her as part of her said alimony; that the plaintiff may be given the furniture now at the former home of the plaintiff and defendant, 19515 Tiverton Road, free of any rights of the defendant therein; that the defendant may be barred from any and all rights, either of dower or otherwise, which he might have in the property, both real and personal of the plaintiff by reason of the former marriage relation existing between them; and for such other and further relief as is just and equitable in the premises.’

Proof of publication was filed in accordance with the statute, and the court upon final hearing found the defendant in default of answer or demurrer, although duly served with process by publication, according to law. The court found the allegations of the petition to be true, and found the defendant guilty of extreme cruelty toward the plaintiff, and awarded the divorce as prayed for. The court further ordered and adjudged that the plaintiff have and possess all of her wearing apparel and all of the household and kitchen furniture then in her possession and situated in the house where plaintiff and defendant formerly resided, granted plaintiff a divorce from defendant, dissolved the marriage contract, and ordered that plaintiff be restored to her maiden name. The court refused to grant plaintiff any alimony or to make any order for the disposition of the real estate of the defendant, described in plaintiff's petition, upon the ground that the defendant had been served by publication only. The judgment of the court of common pleas was affirmed by the Court of Appeals of Cuyahoga county.

The case comes into this court upon allowance of motion to certify the record.

(Syllabus by the Court.)

Service by publication is authorized by sections 11292 and 11984, General Code, in an action for divorce, alimony, and equitable relief, and the trial court has power to make an alimony decree, where the only relief sought is the appropriation of real property of the husband, situated within the county, to the payment of the amount that should be allowed for such alimony and support.

Such an action is substantially one in rem, and, when the petition specifically describes the real property in question, the court has jurisdiction, upon completion of service by publication and hearing upon the merits, to decree the relief sought.

Under section 11990, General Code, the decree entered in one county may be made a lien upon real property of the defendant lying within another county in the state.

[Ohio St. 192]

[167 N.E. 686]

A. W. Bell, of Cleveland, for plaintiff in error.

ALLEN, J.

The trial court held that jurisdiction to render a decree of divorce against a party who has been served by publication according to law does not confer jurisdiction to adjudicate property rights between the parties in the case where real property, belonging to the defendant served by publication, is situated within this state. This judgment was affirmed by the Court of Appeals. We therefore have squarely presented the question of the power of a court of general jurisdiction within this state, upon process being duly served by publication according to law, to grant to a plaintiff in a divorce case alimony out of real property of the defendant situated within the state, and thus physically within the jurisdiction.

Section 11984, General Code, which is in the chapter entitled ‘Divorce and Alimony,’ provides:

‘If the defendant is not a resident of this state or his residence is unknown, notice of the pendency of the action must be given by publication as in other cases.’

While section 11292, General Code, which provides in what cases service shall be given by publication, does not specifically mention divorce and alimony cases, this enactment in section 11984 places divorce and alimony actions among the list of those [Ohio St. 193]in which service by publication is expressly provided for.

Section 11292 also provides that service by publication may be made in any of the following cases:

‘7. In an action in which it is sought by a provisional remedy to take or to appropriate in any way property of the defendant, when the defendant is not a resident of this state or is a foreign corporation or his place of residence cannot be ascertained. * * *

‘9. In an action which relates to or the subject of which is real or personal property in this state, when the defendant has or claims a lien thereon, or an actual or contingent interest therein, or the relief demanded consists wholly or partly in excluding him from any interest therein, and such defendant is not a resident of this state, or is a foreign corporation, or his place of residence cannot be ascertained.’

The refusal of the trial court to make the order prayed for herein was evidently predicated upon the theory that a judgment for alimony necessarily is a judgment in personam, and that a judgment in personam cannot be granted upon service by publication. Conceding that the relief prayed for does require a judgment in personam, the trial court was correct in its holding. However, the question as to whether this action stated a demand for relief in personam or in rem is the very gist of the controversy, for it has been previously held by this court in the case of Benner v. Benner, 63 Ohio St. 220, 58 N. E. 569, that an action for alimony and support of children, where the only...