State ex rel. Nelson v. Williams, 28447
| Decision Date | 20 May 1952 |
| Docket Number | No. 28447,28447 |
| Citation | 249 S.W.2d 506 |
| Parties | STATE ex rel. NELSON v. WILLIAMS, Judge. |
| Court | Missouri Court of Appeals |
Lowenhaupt, Waite, Chasnoff & Stolar, Abraham Lowenhaupt, St. Louis, Walter Wehrle, Clayton, Thomas W. White, Anderson, Gilbert, Wolfort, Allen & Bierman, N. H. Allen, Clifford Greve, St. Louis, for relator.
Claude W. McElwee, Lashly, Lashly & Miller, St. Louis, for respondent.
HOUSER, Commissioner.
This is an original proceeding filed in this court by James Martin Nelson III in which relator seeks a writ of prohibition to prevent Honorable F E. Williams, Judge of the Circuit Court of the City of St. Louis, Missouri, presiding in Division No. 15, from taking further action in the case of Frances Reyburn Nelson v. James Martin Nelson III, the same being cause No. 42,139-D now pending in that court.
Upon the filing of the petition our preliminary writ of prohibition issued commanding respondent to make return and show cause why final judgment in prohibition should not be entered and directing him to take no further action in the premises until the further order of this court. In due course a return was filed for respondent, and it was thereupon stipulated by the parties that relator need file no pleading to the return and that these are the facts:
On November 20, 1950 suit for separate maintenance and for child support was filed in the Circuit Court of the City of St. Louis by Frances Reyburn Nelson against James Martin Nelson III.
On January 16, 1951 an affidavit for attachment was filed, a writ of attachment was ordered issued, upon filing of an attachment bond in the sum of $1,000, the bond was filed and approved, and a writ of attachment was issued returnable April 2, 1951 by which St. Louis Union Trust Company et al., trustees, were directed to be summoned as garnishees.
On January 17 the sheriff made return of service on St. Louis Union Trust Company as garnishee.
On February 15 a divorce suit was filed by James Martin Nelson III against Frances Reyburn Nelson in the Circuit Court of the County of St. Louis and on the same day Frances Reyburn Nelson, the defendant, was personally served with process therein.
On February 16 a return of service of process in the divorce suit pending in St. Louis County was filed.
On February 26 an affidavit for service by publication was filed in the Circuit Court of the City of St. Louis and an order was granted describing the various garnishments which had been run. On the same day an order of publication was granted by the same court.
On March 15 Frances Reyburn Nelson obtained an extension of time for pleading in the cause pending in the Circuit Court of the County of St. Louis. On the same day but in the Circuit Court of the City of St. Louis Frances Reyburn Nelson filed an application for separate maintenance pendente lite and attorneys' fees.
On March 16 the order of publication granted by the Circuit Court of the City of St. Louis on February 26 was set aside by that court and a new order of publication was granted designating March 23 as the first day of publication.
On March 22 the sheriff of the City of St. Louis filed a certificate that he had mailed a copy of the order of publication to the defendant.
On March 28 Frances Reyburn Nelson filed her answer and cross-petition in the cause pending in the Circuit Court of the County of St. Louis in which she prayed for separate maintenance and support for herself and child.
On April 10 James Martin Nelson III filed in the Circuit Court of the County of St. Louis his answer to said cross-petition.
On April 19 James Martin Nelson III filed in the Circuit Court of the City of St. Louis a motion to dismiss the cause therein pending.
On the same day Frances Reyburn Nelson filed in the cause pending in the Circuit Court of the County of St. Louis a motion for alimony pendente lite, maintenance, attorneys' fees and suit money.
On April 26 proof of publication was filed in the Circuit Court of the City of St. Louis showing publication in the St. Louis Daily Record of the order of publication on March 23rd and 30th and April 6th and 13th.
On May 18 the motion of James Martin Nelson III to dismiss the case pending in the Circuit Court of the City of St. Louis was submitted to that court.
On October 18 the respondent judge overruled the motion of James Martin Nelson III to dismiss the suit pending in the Circuit Court of the City of St. Louis and thereafter set for trial the application for maintenance pendente lite and attorneys' fees pending in that court and would have forced James Martin Nelson III to trial if the order of this court had not intervened.
The question is whether under the admitted facts the preliminary writ of prohibition issued by this court should be made absolute. The solution of this question depends upon which of the two circuit courts first acquired jurisdiction.
Before determining this issue there is a preliminary jurisdictional question inherent in the case. Can a married woman, whose husband without good cause abandons her without making suitable provision for her maintenance or for the support of a child of the marriage and who places himself beyond the reach of personal service of process, maintain an in rem or quasi in rem action for separate maintenance, child support and suit money by attachment against the property of the husband found within the state, based upon constructive service of process? While constructive service of process by publication furnishes no legal basis for a general judgment in personam, section 506.160, subd. 1 RSMo 1949, V.A.M.S., the state has power in a suit for separate maintenance to subject the property of a resident of the state to the satisfaction of his marital obligation to support his wife where he has absconded, or absented or concealed himself so that the ordinary process of law cannot be served upon him. Constructive service of process in such a case coupled with a proper proceeding whereby the property is seized and brought within the custody and control of the court, will give the court jurisdiction to render a decree for separate maintenance, child support and suit money which will be valid not in personam but as a charge binding upon, and to be satisfied out of, the property seized. This rule is consistent with the declared public policy of the state which makes the abandonment of a wife and child without good cause and failure to support them a criminal offense upon the part of the husband, section 559.350, RSMo 1949, V.A.M.S., and follows the general rule stated in 42 C.J.S., Husband and Wife, Sec. 615 c, page 223, that 'where the object of the suit is to compel the support and maintenance of the wife by reaching and appropriating, or fixing a lien on, property of the husband within the jurisdiction, the suit may proceed to decree as an action in rem or quasi in rem without personal service of process on the husband.' See also 27 Am.Jur. p. 27 and annotations in 29 A.L.R. 1381, 64 A.L.R. 1392 and 108 A.L.R. 1302.
The statutory authority for the maintenance of an in rem or quasi in rem proceeding the object of which is to appropriate specific property of the absconding husband to the claims of the abandoned wife in a suit for separate maintenance is to be found in the separate maintenance statute, section 452.130, RSMo 1949, V.A.M.S., which authorizes and directs the court to order and adjudge that support and maintenance be provided and paid by the husband 'out of his property'; section 452.140, RSMo 1949, V.A.M.S., which provides that no property shall be exempt from attachment in a proceeding instituted by a married woman for maintenance; section 521.010 RSMo 1949, V.A.M.S., which provides that in any court having competent jurisdiction in any civil action, the plaintiff may have an attachment against the property of the defendant '(4) Where the defendant has absconded or absented himself from his usual place of abode in this state, so that the ordinary process of law cannot be served upon him;' and section 506.160 subd. 1 RSMo 1949, V.A.M.S., which allows service by publication 'in all cases affecting a fund, will, trust estate, specific property, or any interest therein, * * *.'
Relator disputes this proposition, citing Elvins v. Elvins, 176 Mo.App. 645, 159 S.W. 746; Chapman v. Chapman, 269 Mo. 663, 192 S.W. 448, and Beckmann v. Beckmann, 358 Mo. 1029, 218 S.W.2d 566, loc. cit. 570, 9 A.L.R.2d 428; Id., Mo.App., 211 S.W.2d 536. These cases, however, do not militate against the rule we have announced. In none of them did the plaintiff, proceeding by way of attachment, seize, appropriate and bring before the court specific property of the defaulting husband, seeking a limited special judgment fixing a lien thereupon for the satisfaction of her claim. The Elvins case, supra, holds that a court is without jurisdiction to render a general in personam judgment in a suit for separate maintenance and child support pendente lite based on service of notice by publication. In that case the petition prayed for a general judgment against the husband, and neither the petition nor the judgment undertook to appropriate any distinct property of the defendant to the plaintiff's support and maintenance. The judgment in form was to be recovered by execution upon the general property of the defendant.
The Chapman and Beckmann cases, supra, were not suits for separate maintenance brought under a statute (see Sec. 452.130, supra) which permits a special in rem judgment against specific property, but were divorce suits in which the wife sought an alimony judgment under a statute (see section 452.070 RSMo 1949, V.A.M.S.) which authorizes nothing more than a general in personam judgment against the husband.
In the Chapman case, supra, [269 Mo. 663, 192 S.W. 449] after setting up her cause of action for divorce plaintiff alleged in her petition that defendant had two pieces of real estate; that defendant had...
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