Stallings v. Stallings , 127 Ga. 464 ( 1907 )

Lumpkin, J.

(After stating the forgoing facts.)

Service before judgment is the general rule of procedure. Cases where seizure is had before service (such, for example, as the appointment of a temporary receiver ex parte, when necessary, or proceedings in rein) need not be considered. Here the. proceeding did not purport to be one without service, but one in which service was sought to be perfected and a hearing had. The only service of either the suit or the application for temporary alimony was under order of the court, by serving Mr. Hastings' as th"e attorney of the defendant, and sending a copy of the proceedings by registered mail to the defendant.

In order for a judge at chambers to have jurisdiction to hear an application for temporary alimony there must be pending a proceeding by bill or petition fox permanent alimony, ox for divorce. Civil Code, §§2457, 2467; Yoemans v. Yoemans, 77 Ga. 124.. In this .State the filing of the petition in the clerk’s office will be considered as the commencement of the suit, if service is perfected as required by law. But if no service is made, the mere filing of a petition will not suffice to authorize the action to be treated as commenced and perpetually pending. Filing followed by service creates a pending suit from the date of filing. But if there is no service, the process loses its vitality and the effect mentioned does not result. Branch v. Mechanics Bank, 50 Ga. 416; Ferguson v. New Manchester Mfg. Co., 51 Ga. 609; Cherry v. North & South Railroad, 65 Ga. 633; McClendon v. Hernando Phosphate Co., 100 Ga. 219; Florida Central R. Co. v. Ragan, 104 Ga. 356; Nicholas v. British America Assurance Co., 109 Ga. 621; Cox v. Strickland, 120 Ga. 104. The plaintiff’s-allegation was that the defendant had a. legal residence and matrimonial domicile in a named county of this State. The defendant contended that it was in another county. In either event, he could he served with original process necéssary to the suit as a resident, and was not a non-resident. Service could not, therefore, he perfected on him as a non-resident. This-could not be done by an order for publication, or for service on his attorney, or by mailing a copy to him. The original suit could have been, but had not been, served as by law provided. The dependent proceeding for temporary alimony had not been served except as indicated, and was not in a condition to be heard. If service on a non-resident were being made by publication, whether. the hearing of the application. for temporary alimony sho,uld await the perfection of service by publication is not before us. The question made is not on the including in the petition of prayers for temporary and permanent alimony, and for the appointment of a receiver, but the acting on the prayers for interlocutory judgments or decrees without any legal service or notice.

If a proceeding for permanent alimony is to be treated as a regular suit or case at law or in equity, as indicated in Yoemans v. Yoemans, 77 Ga. 134, it would seem that service could be perfected as in other cases- at law or in equity. And certainly an action for divorce can be served as in equity causes. Civil Code, §3433. In Fleming v. West, 98 Ga. 778; it is declared that service on a non-resident by publication will authorize a decree of divorce, but not one for alimony. But it is said in the opinion by Simmons, C. J., that it is competent for the legislature to-authorize the courts to render a judgment for alimony upon constructive notice, as against citizens of the State. In Baldwin v. Baldwin, 116 Ga. 471, it is held that the provision in the Civil Code, §3467, for three days notice to the defendant, in a proceeding for alimony instituted under that section, contemplates personal service of a written notice. The legislature might have provided otherwise, but this decision holds that they did not do so. It may be unfortunate that the case of a man who absents himself from the State for a considerable time, though retaining his legal residence here, was not provided for, but that is matter for the legislature, not for the courts to remedy. From what has been said, it will be seen that tbe court erred in passing the interlocutory decree to which exception is taken.

As to whether Fulton or Jones county is the proper jurisdiction of a suit against the defendant, the question is one of law and fact, to be determined under the evidence. If there is doubt on the subject, the presiding judge is not required to determine it finally. Inde'ed the ultimate determination of a plea to the jurisdiction is for the jury. If it appears clearly to the judge that the suit is brought in the wrong county, he should refuse to grant interlocutory relief, for that reason.

It is contended that the judgment is one in rem and not in personam, and that it merely requires the receiver to pay to the wife a fixed amount monthly from the property of the husband. But how is the amount to be fixed ?' The prayer is for alimony. The order of the judge several times refers to the amount to be ■paid as temporary alimony, and in authorizing a dissolution of the receivership he required a bond conditioned to pay “the temporary alimony to the plaintiff as hereinbefore ordered.” If the amount to be paid is not alimony, what is it? While there was no direct judgment for temporary alimony against the defendant personally, yet, under the prayer for temporary alimony, the •amount was fixed, together with counsel fees, and the receiver appointed was directed to pay such amounts from the defendant’s property in his hands. If the plaintiff had a debt which she could enforce by a proceeding in rem, such proceeding would be •commenced by a seizure of the property, upon due application. Alimony and counsel fees are to a considerable extent matters of discretion, both as to the grant and the amount, under the cir•cumstances of the ease. A judgment for. alimony is a personal judgment. Fleming v. West, 98 Ga. 778, supra; 1 Enc. Pl. & Pr. 403, and note 2; Bunnell v. Bunnell, 15 Fed. 214. What is .sometimes called “suit money” for the wife (Bish. Mar. & Div. §976; 1 Encyc. Pl. & Pr. 451), so far as divorce and alimony cases are concerned, is_ now treated in Georgia as part of the alimony allowed, rather than as a séparate matter. Civil Code, •§2457; Stokes v. Stokes, ante; 160; Glenn v. Hill, 50 Ga. 94. What is really asked here is for the court to take possession of the defendant’s property, adjudge that temporary alimony and counsel fees shall be allowed, and order the amount which may be determined in the discretion of the court to be. paid by the receiver. This could hardly be called a proceeding in rem. The plaintiff’s counsel appeared to think it was not wholly so, as they took an order for service in a certain manner.

It is urged that a court of -equity may appoint a receiver without service or notice, in a proper case. This may be true, but not ordinarily so, under the practice in this State. The usual mode of procedure is, as on an application for injunction (Civil Code, §4924), to set a time for a hearing of the application for the receiver, after service. In the meantime, if the necessities of the case are shown to require it, a temporary receiver may be appointed. But even then caution should be used, to see that the case is a proper one for the exercise of the power. If a receiver to continue till the final trial, and not merely temporarily until the application can be heard, will be appointed in the State at all without service or notice, it will only be under extraordinary circumstances. On the general subject, see Civil Code, §4903; Jones v. Dougherty, 10 Ga. 273; Williams v. Jenkins, 11 Ga. 595; Rogers v. Dougherty, 20 Ga. 271; High, Rec. (3d ed.) §111 et seq.

If the defendant remains beyond the jurisdiction, so that the application for temporary alimony can not' be served on him personally, and his property in the State is in imminent danger of being lost, destejed, depreciated by waste, or removed, so that if a judgment for permanent alimony is obtained, there will be nothing out of which it can be made, the court probably may appoint a receiver upon proper pleadings and a proper showing, to preserve and hold the property until a judgment can be obtained. Price v. Price, 90 Ga. 244. We do not decide this point, as it is not distinctly made. But we do not know of any authority by which a judge can fix alimony and order it to be paid, until a lawful judgment therefor has been obtained, or render a judgment for temporary alimony without service or notice. The case of McCowan v. Brooks, 113 Ga. 385, 391, rested on a rule of this court. In the meantime, however, the wife is not wholly helpless and subject to suffer, as urged. She is still a wife, and as such, unless prevented by her own misconduct, may purchase necessaries for her support, and the husband will be liable therefor. Civil Code, §§2477, 2478.

The appearance in this case did not waive service or jurisdiction. If so, a defendant conld never raise these questions, for if he appeared to do so, he would waive his objection by making it. Appearance and pleading to the merits will waive service, if no objection is made to the want of service. But it does not have that effect where before or at the same time want of service is pleaded. Under our system of practice, both pleas may be filed together without destroying each other. Western & Atlantic R. Co. v. Pitts, 79 Ga. 532.

In argument the propriety of the selection of the person appointed as receiver was criticised, but no such point is made in the bill of exceptions.

Judgment reversed.

All the Justices concur, except Fish, C. J., Absent.