Thrift v. Thrift

• Decision Date: 27 February 1918
• Docket Number: 3875.
• Citation: 171 P. 272,54 Mont. 463
• Parties: THRIFT v. THRIFT.
• Court: Montana Supreme Court

171 P. 272

54 Mont. 463

THRIFT v. THRIFT.

No. 3875.

Supreme Court of Montana

February 27, 1918

Appeal from District Court, Chouteau County; John W. Tattan, Judge.

Action by Florence Thrift against Harmon Thrift. From an order denying plaintiff's motion, he appeals. Reversed and remanded.

Stranahan & Stranahan, of Ft. Benton, for appellant.

H. S McGinley, of Ft. Benton, for respondent.

HOLLOWAY J.

Upon the trial of this case the district court granted a divorce in favor of the plaintiff, awarded her alimony in a specific sum, payable monthly, transferred to her absolutely certain real property belonging to the defendant, and gave to her the custody of a minor child, the issue of the marriage. The defendant and the child were residents of Indiana. Service of summons was made by publication, and there was no appearance by defendant before trial. Subsequently defendant appeared specially and moved to have eliminated from the decree the provisions for alimony, the transfer of the real estate, and the custody of the child. The motion was denied, and this appeal is from the order.

1. In so far as the decree awards alimony in a sum certain, it is in personam (14 Cyc. 745), and it is now settled beyond controversy that such a decree cannot be rendered upon substituted service alone. Pennoyer v. Neff, 95 U.S 714, 24 L.Ed. 565; Silver Camp Min. Co. v. Dickert 31 Mont. 488, 78 P. 967, 67 L. R. A. 940, 3 Ann. Cas. 1000.

2. The decree assumes to transfer to plaintiff absolutely 160 acres of land belonging to defendant and acquired by him under the homestead laws of the United States, without having first brought the property under the control of the court by appropriate proceedings. If this property had been impounded a judgment for alimony in a sum certain, even though rendered on substituted service, might have been satisfied out of the property, but not otherwise (English v. Jenks, 54 Mont. 295, 169 P. 727), or the property itself might have been set over to the use of the wife for a limited period, as authorized by section 3685, Revised Codes; but under no circumstances could the court transfer the title absolutely and, having failed to subject the property to its control, the order affecting it is void. The fact that separate funds of the wife may have been employed in the improvement of these lands does not create a trust or interest in the property itself in her favor. Cizek v. Cizek (on...