Rhoades v. Rhoades
| Decision Date | 07 March 1907 |
| Parties | RHOADES v. RHOADES ET AL. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
A court of equity will entertain an action brought for alimony, and will grant the same, although no divorce or other relief is sought, where the wife is separated from the husband without her fault.
The district courts of this state are courts of general equity jurisdiction, and are not limited in the exercise of such jurisdiction by statute.
Service by publication is authorized by section 1078, Cobbey's Ann. St. 1903, in an action by a wife for alimony and support of her child against the husband, who deserted his family and became a nonresident of the state, where the only relief sought is the appropriation of the real estate of the husband, situated in the county where the action is brought, to the payment of the amount that should be allowed for such alimony and support. Such an action is substantially one in rem, and the court has jurisdiction upon the completion of the service by publication to decree the relief sought.
Jurisdiction to subject property in such an action, within the territorial jurisdiction of the court, to its judgment, may be acquired by the service of process by publications and the placing of the property in the hands of a receiver.
In such an action, residence of the wife in the county where the property of the husband is situated is not required.
Commissioners' Opinion. Department No. 1. Appeal from District Court, Hall County; Paul, Judge.
Action by Alice M. Rhoades against George M. Rhoades and others. From a judgment in favor of plaintiff, defendant George M. Rhoades appeals. Affirmed.
John C. Stevens, for appellant.
N. P. McDonald, for appellee.
The question presented by this appeal is one of some importance, and has not heretofore been passed upon by this court. The facts are substantially as follows: July 1, 1884, the plaintiff, Alice M. Rhoades, and the defendant George M. Rhoades were married in Adams county, Neb., where they then resided. One child, born June 4, 1885, is the issue of their marriage. The parties moved to Hall county, this state, in 1886, and continued to live together as husband and wife until June, 1887, when Mrs. Rhoades left her husband because of his extreme cruelty, and has since justifiably lived apart from him. Shortly after the separation, defendant moved from Nebraska, and at all times since has been a nonresident of the state, and his whereabouts are unknown to plaintiff. Defendant is the owner of an undivided one-half interest in a certain quarter section of land in Hall county. In 1901 plaintiff instituted this action in the district court of that county, upon notice by publication, alleging the above facts, and others, which would entitle her to a divorce, and prayed that the court determine a reasonable sum due from defendant for her maintenance and support without divorce, and the interests of defendant in the Hall county land be subjected to the payment of such sum; that a receiver be appointed to take charge of the interests of the defendant in said premises and collect the rents and profits arising therefrom; and that plaintiff have such other and further relief as may be just and equitable. Defendant filed a special appearance and objected to the jurisdiction of the court. His objections were overruled, and, upon his refusal to plead further, trial was had and a judgment entered for plaintiff. The court found the facts substantially as above stated, and, further, that plaintiff and her child were entitled to maintenance and support out of the rentals of defendant's said property in the sum of $500 per year; that the temporary receiver appointed at the commencement of the action had taken possession of the interests of defendant in said real estate, and the tenant in possession had attorned to said receiver and paid to him the share of defendant in the rents and profits therefrom. It was adjudged and decreed by the court that the undivided interest of defendant in the Hall county land be impounded and the rents and profits devoted to the maintenance and support of the plaintiff. That N. S. Taylor be appointed receiver to take possession of said property and manage the same and collect the rents and profits arising therefrom, together with the rents and profits which have come into the hands of the temporary receiver from said premises, and that he distribute the same: (1) To the payment of the costs that may be adjudged against the plaintiff in this suit; (2) To the payment of such reasonable fees as the court may determine for his services as such receiver, and one-half of the taxes levied and assessed against said premises, and one-half of the necessary repairs and improvements thereon; (3) That the balance be paid, as collected, to the plaintiff herein. Defendant appeals.
The sole question for determination is: Did the district court have jurisdiction, upon service by publication, to subject the interests of the nonresident husband in the Hall county land to the maintenance and support of his wife and child?
1. It has been held that a court of equity will entertain an action brought for alimony, and will grant the same, although no divorce or other relief is sought, where the wife is separated from her husband without her fault. Earle v. Earle, 27 Neb. 277, 43 N. W. 118, 20 Am. St. Rep. 667;Cochran v. Cochran, 42 Neb. 612, 60 N. W. 942;Price v. Price (Neb.) 106 N. W. 657. And it is clear that the district courts of this state, being courts of general equity jurisdiction, are not limited in the exercise of such jurisdiction by statute. Cochran v. Cochran, supra. However, the question presented by this record was not involved in the cases above cited. It is here sought, under the general equity powers of the court, to appropriate property of a nonresident, which is situated within the jurisdiction of the court, to the maintenance of his wife and child.
2. It is urged that service by publication is not authorized by statute in cases of this kind. Section 1078, Cobbey's Ann. St. 1903, provides that service may be made by publication “in actions brought against a nonresident of this state, or a foreign corporation having in this state property or debts owing to them, sought to be taken by any of the provisional remedies, or to be appropriated in any way.” It is apparent that the Legislature intended the clause, “to be appropriated in any way,” to apply to actions similar to the case at bar. It cannot be claimed that the clause is limited to actions where an appropriation of property is sought by provisional remedies. The preceding language includes all cases where property is sought to be thus taken, and hence the expression, “to be appropriated in any way,” could serve no useful purpose in the statute if construed to refer only to actions where an appropriation of property is sought to be taken by provisional remedies.
3. Neither can it be successfully contended that there was no “appropriation,” or that the property was not brought within the control of the court. Benner v. Benner, 63 Ohio St. 220, 58 N. E. 571. In Murray v. Murray, 115 Cal. 266, 47 Pac. 37, 37 L. R. A. 626, 56 Am. St. Rep. 97, it was said: Benner v. Benner and Murray v. Murray, supra, are cases similar to the one at bar. See authorities cited in those decisions. A temporary receiver was appointed at the commencement of this action, who took possession of the land in controversy and collected the rents and profits therefrom. We are therefore of opinion that there was a sufficient seizure of the property to bring it within the control of the court when the judgment was rendered.
4. This court has held that service by publication is sufficient in proceedings substantially in rem. Fowler v. Brown, 51 Neb. 415, 71 N. W. 54;Anheuser-Busch Brewing Co. v. Peterson, 41 Neb. 897, 60 N. W. 373. But it is urged that this action is...
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