Walker v. Manson

• Decision Date: 07 June 1930
• Docket Number: 5516
• Parties: WM. WALKER, Administrator of the Estate of JAY BECK, Deceased, Appellant, v. E. C. MANSON et al., Respondents, and LILLIE M. BECK et al., Appellants
• Court: Idaho Supreme Court

289 P. 86

49 Idaho 468

WM. WALKER, Administrator of the Estate of JAY BECK, Deceased, Appellant, v. E. C. MANSON et al., Respondents, and LILLIE M. BECK et al., Appellants

No. 5516

Supreme Court of Idaho

June 7, 1930

HUSBAND AND WIFE-DECREE OF SEPARATE MAINTENANCE-COLLATERAL ATTACK-AMOUNT OF ALLOWANCE-JURISDICTIONAL REQUIREMENTS.

1. Decree in action for separate maintenance cannot be attacked collaterally unless void on face.

2. In action by wife for separate maintenance, court had jurisdiction to award all community property to wife, so that such award could not be attacked collaterally even if excessive (C. S., sec. 4642).

3. Jurisdictional requirements authorizing court to award separate maintenance are jurisdiction of subject matter and of parties.

4. Jurisdictional requirements in separate maintenance action are satisfied where plaintiff is within jurisdiction and there is property belonging to both parties within jurisdiction.

5. In separate maintenance action, amount of allowance is discretionary, and circumstances may justify lump sum.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. C. J. Taylor, Judge.

Action to quiet title. Judgment for respondents. Affirmed.

Judgment affirmed. Costs awarded to respondents. Petition for rehearing denied.

F. M Bistline, for Appellant Walker.

A court is without jurisdiction to decree relief not prayed for in the case of a default judgment. Therefore, the decree of separate maintenance entered in the suit of Beck v. Beck, is void. (C. S., sec. 6829; Washington County Land &amp Development Co. v. Weiser Nat. Bank, 26 Idaho 717, 146 P. 116; Wilson v. Boise City, 7 Idaho 69, 60 P. 84; Lowe v. Turner, 1 Idaho 107; Backman v Douglas, 46 Idaho 671, 270 P. 618; Sherman v. Sherman, 47 Cal.App. 208, 190 P. 464.)

Courts of Idaho are without jurisdiction to award property to either spouse as separate property in a suit for separate maintenance. Therefore the decree in the suit Beck v. Beck, is void, wherein it attempts to decree lot one and one-half of lot 2 of block 449 to Lillie M. Beck as separate property. (Johnson v. Johnson, 33 Cal.App. 93, 164 P. 421; Sherman v. Sherman, supra; Tremper v. Tremper, 39 Cal.App. 62, 177 P. 868; Doe v. Doe, 52 Hun, 405, 5 N.Y.S. 514; Reynolds v. Reynolds, 68 W.Va. 15, Ann. Cas. 1912A, 889, 69 S.E. 381; Cizek v. Cizek, 69 Neb. 797, 5 Ann. Cas. 464, 96 N.W. 657, 99 N.W. 28.)

Where service of summons is by publication a court is without jurisdiction to order the defendant to execute a deed and convey his property. Therefore, that portion of the decree in Beck v. Beck (Defendant's Exhibit 22) ordering Jay Beck to execute a deed to lot one and one-half of lot 2 in block 449 to Lillie M. Beck is void. (Pennoyer v. Neff, 95 U.S. 714, 734, 24 L.Ed. 565.)

F. E. Tydeman, for Appellant Beck.

The only income had by Mrs. Beck was from the land owned at the time of the separation and land purchased with the money obtained from the sale thereof. The income was either from the community property or rents and profits of the separate property of Mrs. Beck.

Under any view of the evidence the property was community property. Even though the decree of separation made the separate property, the fact that the marriage was not dissolved rendered the income from the rents and profits community property. (Smith v. Bailey, 66 Tex. 553, 1 S.W. 627; Clift v. Clift, 72 Tex. 144, 10 S.W. 338.)

R. W. Jones and Merrill & Merrill, for Respondent Manson.

Where an equity court grants relief in excess of that specifically prayed for, but which relief is within the scope of the pleadings, the decree may be subject to modification on appeal or in a direct proceeding in so far as the excess is concerned, but is not subject to a collateral attack. ( Cohen v. Cohen, 150 Cal. 99, 11 Ann. Cas. 520, 88 P. 267; Parker v. Parker, 203 Cal. 787, 266 P. 283; O'Neill v. Potvin, 13 Idaho 721, 93 P. 20, 257; Mach v. Blanchard, 15 S.D. 432, 91 Am. St. 698, 90 N.W. 1042, 58 L. R. A. 811; Ketchum v. White, 72 Iowa 193, 33 N.W. 627; Jones v. Jones, 78 Wis. 446, 47 N.W. 728.)

Standrod & Standrod, for Respondent Bean.

Plaintiff's attack of the judgment rendered in December of 1903, in the district court of the fifth judicial district of the state of Idaho in and for Bannock county, in the case of Lillie M. Beck v. Jay Beck, is a collateral attack on the said judgment and cannot be maintained in this action. (O'Neill v. Potvin, 13 Idaho 721, 725, 93 P. 20, 257; Cohen v. Cohen, 150 Cal. 99, 11 Ann. Cas. 520, 88 P. 267; Bond v. Pacheco, 30 Cal. 530; Mach v. Blanchard, 15 S.D. 432, 439, 91 Am. St. 698, 90 N.W. 1042, 58 L. R. A. 811; Harrison v. Union Trust Co., 144 N.Y. 326, 39 N.E. 353; Ketchum v. White, 72 Iowa 193, 33 N.W. 627; Jones v. Jones, 78 Wis. 446, 47 N.W. 728.)

GIVENS, C. J. Lee, Varian and McNaughton, JJ., concur. Budge, J., did not participate.

OPINION

GIVENS, C. J.

Jay Beck and Lillie M. Beck were married in 1890. Thereafter, in 1903, Lillie M. Beck instituted a suit against her husband, Jay Beck, for separate maintenance and for the care, custody and control of her two minor children, alleging the joint ownership of certain city lots in Pocatello, and that her husband had abandoned her and the two children, and was outside of the state. Upon substituted service by publication and mail and the proper affidavit and order of service authorized by statute, Jay Beck not appearing and after his default was noted, the court entered judgment giving the custody of the two children to Mrs. Beck and disposing of the property as follows:

"And it further appearing that the property set out in the complaint is community property and is under the control of the court in this cause, and that said property is all the property belonging to the defendant within the state, and is all the property within the jurisdiction and control of the court; and that said property has been shown by proper and competent testimony to be of the value of $ 3500; and it further appearing that same and all of same is necessary for a home and for the support and maintenance of plaintiff and of the said minor children; it is therefore ordered that said property, to wit. Lot No. one and one-half of Lot No. 2 in Block No. 449, and Lots 3 and 4 in Block No. 444 and Lots 8, 9 and 10 in Block No. 463, as shown by the original plats of the city of Pocatello, Bannock County, Idaho, be and the same are hereby decreed and set apart to the plaintiff absolutely for her said support and maintenance and that of her children, and that said property may be in lieu of the gross sum allowed to the plaintiff herein; and it is further ordered, adjudged and decreed that the defendant, Jay Beck, for the purposes herein set out, and in accordance with the direction of the court herein, within ten days from this date, execute and deliver to the plaintiff herein, Lillie M. Beck, a good and sufficient deed of all interest of, in and to said property hereinbefore set out, and it is further ordered, adjudged and decreed that, in case of failure of the defendant to so make and execute said deed within the time herein, that E. G. Gallet, be and he is hereby appointed and directed as a commissioner of this Court, and for that purpose he is hereby directed and empowered to make, execute and deliver to the plaintiff a deed of all the right, title and interest of the defendant in and to said property and all of same."

Deeds were thereafter made in accordance with this decree. Between December 18, 1903, the date of the decree of the separate maintenance suit, and January 20, 1928, the date of his death, Jay Beck returned to or visited his wife but twice, never returning to live with her and never contributing anything to the support of her or the two children. During all of this time Lillie M. Beck supported herself by her own efforts, unaided in any way by Jay Beck, gave various notes and mortgages on the property in question and handled it as though it were her own separate property. After the death of Jay Beck his administrator brought this action to quiet title to lots 1, 2, 3, 4, 7, 8, 9 and 10 in block 449, city of Pocatello, the property at the time of the suit standing in the name of Lillie M. Beck, and either originally transferred to her under the decree of December 18, 1903, or acquired by her as the fruits and proceeds of dealing with the property given to her by said decree or from the proceeds of her own business ventures thereafter, or inheritances received by her.

Respondent Manson is owner by purchase at mortgage foreclosure sale of certain of the lots involved. Mrs. Bean sought herein foreclosure of her mortgage on certain of the lots, and the other respondents are or had been mortgagees and defaulted. The action herein is a...