Wesner v. O'Brien

• Decision Date: 09 May 1896
• Docket Number: 10531
• Parties: GEORGE D. WESNER v. ENOCH O'BRIEN
• Court: Kansas Supreme Court

44 P. 1090

56 Kan. 724

GEORGE D. WESNER v. ENOCH O'BRIEN

No. 10531

Supreme Court of Kansas

May 9, 1896

Decided January, 1896.

Error from Court of Appeals, Southern Department.

THE opinion herein, filed May 9, 1896, contains a sufficient statement of the case.

Judgment reversed.

Jno. C Sheridan, for plaintiff in error.

N. W Wells, W. H. Browne, and B. F. Simpson, for defendant in error.

JOHNSTON J. All the Justices concurring.

OPINION

JOHNSTON, J.:

This was an action brought by Enoch O'Brien to recover from George D. Wesner a tract of land situate in Miami county and the rents and profits of the same for a period of three years. Prior to June 18, 1875, the land was owned by O'Brien, and on that day, in a divorce proceeding brought by his wife, Annie O'Brien, it was decreed to her as alimony. Afterward, Annie O'Brien transferred the land to another, and Wesner derived his title from that source, and about three years before the commencement of the action he took possession of the same and made substantial improvements thereon. More than 14 years after the divorce proceedings Enoch O'Brien began this proceeding, challenging the effect of the decree and the title of Wesner. On the trial, it appeared that the action for divorce was begun in Johnson county, and, as summons could not be served upon Enoch O'Brien within the state, service was obtained by publication, and in the notice it was expressly stated that she would ask judgment for the custody and control of an infant son, and that the tract of land in question should be decreed to her as alimony. The constructive notice was given in the manner prescribed by law, and the judgment awarding her the land as alimony was based solely upon constructive notice. On the trial of this cause, record evidence of the divorce proceeding and the decree appropriating the lands in question as alimony was excluded by the court, because it appeared that Enoch O'Brien had no other than constructive notice of the proceedings, and because the land was not in the county within which the court was sitting. This ruling presents the controlling question of the case. It is conceded that constructive notice was sufficient to authorize a divorce of the parties, but it is contended that a decree terminating the marriage relation was the full extent of the jurisdiction and power of the court. The determination of the question depends to a great extent upon the statutes of the state, and that the state has full power through its legislature and courts to regulate and control the status of its citizens, and to dispose of or control real property to whomsoever it may belong within its limits, will hardly be denied. It is provided that service may be made by publication "in actions to obtain a divorce, where the defendant resides out of the state," and "in actions brought against a non-resident of the state . . . having in this state property . . . sought to be taken by any of the provisional remedies or to be appropriated in any way." It is also authorized where the action relates to real or personal property in this state in which a non-resident defendant has or claims an interest, or where the relief demanded consists wholly or partly in excluding him from any interest therein. (Civil Code, § 72.) These provisions, if valid, afford authority to dissolve the marriage relation upon constructive notice, and also to appropriate the real property of the non-resident defendant. In Dillon v. Heller, 39 Kan. 599, 18 P. 693, it is held that

"Kansas is supreme except so far as its powers and authority are limited by the constitution and laws of the United States. And within the constitution and laws of the United States the courts of Kansas may have all the jurisdiction over all persons and things within the state which the constitution and laws of Kansas may give to them, and the mode of obtaining this jurisdiction may be prescribed wholly, entirely and exclusively by the statutes of Kansas. To obtain jurisdiction of anything within the state of Kansas, the statutes of Kansas may make service by publication as good as any other kind of service."

The same view has been expressed by the supreme court of the United States, where it is said:

"The state through its tribunals may subject property situated within its limits owned by non-residents to the payment of the demand of its own citizens against them, and the exercise of this jurisdiction in no respect infringes upon the sovereignty of the state where the owners are domiciled. Every state owes protection to its own citizens, and when non-residents deal with them it is a legitimate and just exercise of authority to hold and appropriate any property owned by such non-residents to satisfy the claims of its citizens." (Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565.)

In the exercise of this power, lands of non-resident owners are appropriated for the taxes assessed against them upon a publication notice only, mortgage and mechanics' liens are foreclosed against non-resident defendants where there is neither personal service nor appearance, and the property of non-resident defendants lying within the territorial jurisdiction of the court is subjected to the payment of claims and demands in a variety of ways without other service than by publication. (Dillon v. Heller, supra.) It was therefore competent for the legislature to provide for the granting of a divorce upon constructive service, and as alimony is an incident of divorce it may be awarded in the same proceeding, if it is within the power of the court. Did the district...