Smith v. Smith

• Decision Date: 29 November 1901
• Citation: 51 A. 1060,74 Vt. 20
• Parties: SMITH v. SMITH.
• Court: Vermont Supreme Court

51 A. 1060

74 Vt. 20

SMITH

v. SMITH.

Supreme Court of Vermont. Orange.

Nov. 29, 1901.

Exceptions from Orange county court; Watson, Judge.

Petition for divorce by Jennie B. Smith against Frank Smith. A divorce having been granted at the December term, 1900, the case came on for hearing in vacation thereafter, on the question of alimony, under an agreed statement of facts. The court refused to grant an order for alimony out of the funds referred to in the statement on the ground that it had no jurisdiction to make such order. The petitioner excepted. Affirmed.

It appeared from the agreed statement that Frank Smith, who had been absent and unheard from since 1892, was a legatee under the will of Eleazer Smith, who died in 1899 in New Hampshire, where his estate is in process of settlement by E. W. Smith, of Wells River, Vt. executor by appointment of the probate court of New Hampshire. A decree of distribution has been made, and the distributive share of said Frank Smith is in the hands of said executor, and is the fund out of which an order of alimony is sought There was no appearance by said Frank Smith, and no personal service upon him.

Argued before TAFT, C. J., and ROWELL, MUNSON, START, and STAFFORD, JJ.

M. M. Wilson, for petitioner.

E. W. Smith, pro se.

START, J. The court below held that it did not have jurisdiction to decree the payment of money to the libelant as alimony. This holding was correct. The process was not served upon the respondent in this state, and he did not appear in the cause by himself or attorney. The only notice of the pendency of the libel was by publication, under V. S. § 2682. This did not give the court jurisdiction of the person of the respondent, nor of his estate that was not brought under the control of the court by the process. A decree for the payment of money as alimony is a decree in personam, and is void without personal service upon the respondent, or without his appearance. In Rigney v. Rigney, 127 N. Y. 408, 28 N. E. 405, 24 Am. St. Rep. 462, it is held that although a suit for a divorce is in the nature of a proceeding in rem, or quasi in rem, in so far as it affects the marital status of the parties, as to alimony and costs it is a proceeding in personam, and that an award of alimony and costs against a nonresident defendant, who was not served with process within the jurisdiction, and did not appear in the action, does not bind him. In 1 Enc. Pl. & Prac. 413, numerous cases are cited in support of the rule that, although a divorce ex parte may be obtained on constructive service, no alimony can be decreed unless the defendant appears in person or by attorney, or has been duly served with process within the jurisdiction of the court. In common-law actions it is held that a money judgment against a nonresident, without service of the process upon him in this state, or appearance, is inoperative, except for the purpose of subjecting the property attached on the original writ to execution. Price v. Hickok, 39 Vt 292. A decree for the payment of money as alimony stands on no different ground, but is governed by the principles that control in an ordinary judgment for the recovery of money. Prosser v. Warner, 47 Vt. 667, 19 Am. Rep. 132. Judge Cooley says that in divorce cases, no more than in any other, can the court make a decree for the payment of money by a defendant not served...