FLEMING et al. v. WEST, executor, et al.

Supreme Court of Georgia1896-08-18

98 Ga. 778

Summary · law.co

Holding. The alimony decree was void and could be attacked collaterally because the court lacked jurisdiction to render such a judgment at the term in question under the applicable statutory framework. Judgment affirmed.

The executors of an estate sought to recover land in Jackson County Superior Court from defendants who claimed title based on a divorce decree from Cobb Superior Court. The trial judge ruled the decree void for lack of jurisdiction, and defendants appealed. The court examined whether the divorce decree—which included an alimony provision—was properly entered. The defendants' former spouse in the divorce case had not been found in the county, so the court authorized service by publication and entered the decree at the following term without any appearance or defense by that defendant.

The appellate court identified two independent grounds rendering the decree void. First, if the defendant in the divorce case was a state resident, service by publication was improper under the applicable statute. Even if he was a non-resident (permitting service by publication), a decree for alimony affecting property rights cannot constitutionally be rendered against a non-resident on constructive notice alone, though a divorce decree itself is valid as it addresses only marital status. Second, and more fundamentally, the law at that time prohibited the superior court from rendering judgments in divorce and alimony cases at the first term; the decree here was rendered at the next term following publication, making it void on its face.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether service by publication provided sufficient jurisdiction in a divorce and alimony case
Whether a court may award alimony against a non-resident defendant on constructive notice
Whether a superior court had statutory authority to render divorce and alimony judgments at the first term of court

Procedural posture

The executors petitioned in Jackson County Superior Court to recover land; the trial judge held the Cobb Superior Court divorce decree void for lack of jurisdiction; defendants appealed to the state appellate court.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Simmons, Chief Justice.

The executors of Mrs. Nieey Moon brought their equitable petition in the superior court of Jackson county to recover certain land in that county from the possession of Mrs. Fleming and Mrs. Bell. The defendants claimed title under a decree rendered at the October term, 1873, of Cobb-superior court. The case was referred to the judge without a jury, and he held that the decree was void for want of jurisdiction. To this the defendant excepted, and brought the case to this court. The decree in question was a decree-for alimony, rendered in a divorce case. The petition for divorce was filed February 25, 1873, and the case was made returnable to the March term of the court, but the-sheriff returned the process with the entry that the defendant was not to be found in the county, and that his information was that he was not in the State. An order to serve the defendant by publication was granted, and at the next term thereafter the following order was passed. “Service-in this case having been perfected by publication, it is-ordered that the same stand for trial.” At the same term; the decree in question was rendered. There was no appearance or defense by the defendant.

If the defendant in the divorce case was a resident of the State, service by publication was clearly insufficient to-give the court jurisdiction, the code providing that the petition in such cases shall be “served as in other cases, unless the defendant be a non-resident of the State.”. (§1717.) If he was a non-resident of the State, service-could be made by publication (see same section, and section 4185); but while service of a non-resident of the State by publication, if made conformably to tbe statute, would be sufficient to give the court jurisdiction of .the defendant .so far as to authorize a decree for divorce, it has been held tbat it would not give jurisdiction so far as to authorize also a decree for alimony; tbat while tbe decree in such a case is m rem in so far-as it adjudicates as to tbe marital .status, yet if it undertakes as an incident of tbe divorce proceeding to deal with property rights of tbe defendant, it becomes in tbat respect a proceeding in personam, and .•although it is competent for tbe legislature to authorize tbe courts to render a judgment for alimony upon constructive notice, as against citizens of tbe State, it is not competent to do so as against non-residents of tbe State. See 2 Bishop, Marriage, Divorce and Separation, §35 et seq.; §§78, 79; Durr v. Forsyth, 50 Ohio State Rep. 726, 40 Am. State Rep. 703, and cases cited in notes.

■ Whether tbe decree for alimony was void for want of ser■vice or not, we think it was clearly so upon another ground. As tbe law stood at tbe time tbe decree was rendered, tbe ■superior court bad no authority or jurisdiction to render a judgment at tbe first term, except in cases expressly provided for by law; and a suit for divorce and alimony was not such a case. (Code, §§3519, 3457.) Tbe decree in •question, as we have seen, was rendered at tbe next term •after tbe publication of notice. This fact appearing upon ■the face of the record, tbe decree was upon its face void, and could be attacked collaterally in any court. (Code, §§3594,3828.) Judgment affirmed.