Axtell v. Axtell ( 1935 )

Beck, Presiding Justice.

Mrs. Madeline Axtell brought an equitable suit in Richmond superior court against Silas Blake Axtell, seeking to have a decree and judgment in a divorce suit obtained in that court set aside and canceled. In her petition she alleges she is a resident of the State of New Jersey, and that the defendant is a resident of the State of New York. She further alleges in substance as follows: The defendant deserted the plaintiff in December, 1925. Prior to that time, and during the time they lived together as husband and wife, the defendant, with the active help and assistance of the plaintiff, accumulated a large estate in realty and other property, naming the properties in the State of New York. As his lawful wife, under the laws of the State of New York, she had a vested interest or dower right.of one third of all his property, and was entitled to a support allowance in addition thereto. Upon a complaint filed by her in the courts of the State of New York, after their separation, the defendant was ordered to pay to her as a support allowance $225 per month. He paid this allowance until about May 1, 1927,- when he entered into a conspiracy with plaintiffs attorney, the object and purpose of which was to defraud plaintiff out of her dower interest and rights in the property named, as well as the alimony support allowance. As a part of and in furtherance of the conspiracy, the defendant, acting by and through plaintiff’s attorney, represented to her that he would settle her-claim, of dower and alimony allowance in full upon the condition that she procure a divorce a vinculo matrimonii, granting both parties a total divorce. Plaintiff, being advised by her attorney that this was the best and only legal way to proceed and obtain a settlement, being wholly ignorant as to such matters, and trusting implicitly in the advice of her attorney, agreed to do as requested. She came to Augusta, Georgia, about June, 1927, and in July, 1927, she filed in Richmond superior court a suit for divorce, alleging her residence to be in Richmond County, and that her husband’s whereabouts were unknown. Upon this petition a divorce decree was granted after two verdicts. She charges that while she appeared as plaintiff in the divorce proceeding, the action was in reality the action of the defendant, instituted and paid for by him, as part of the alleged conspiracy to cast her off and defraud her out of her property rights. She has never desired a divorce, and only consented because advised thabin no other way could she obtain a proper and legal settlement from her husband. Having procured the divorce in the manner stated, defendant failed and refused to make any settlement with plaintiff, and discontinued the monthly allowance formerly granted by the New York corrrt. Plaintiff prays that the decree of divorce be set aside and canceled, that she have such other relief as she may be entitled to, and that the defendant be served by publication in the manner provided by the statutes of this State.

To this petition certain amendments were filed, which it is not necessary to set out. The defendant filed a plea to the jurisdiction, and demurred on several grounds. The court overruled both the plea'and the demurrer, and the defendant excepted.

Substantially there are two questions presented, and the rulings upon these questions are controlling in the case. The first question is: Is the service by publication, which is shown to have been duly had, sufficient to authorize the court to take jurisdiction of the case and render an equitable decree therein, where no personal service on the defendant is had and no attachment on his property ? It is contended that service by publication was not sufficient, because the statutes under which the service by publication was had and perfected are unconstitutional on the ground that the statute contained in the Code of 1933, § 81-204, violates certain provisions of the constitutions of the State of Georgia and of the United States. The statute referred to reads as follows: “Service on non-residents. If the defendant in an equitable proceeding does not reside .in the State, service of the petition or any order of the court may be made by publication. If the non-resident defendant is represented in court by an attorney at law or in fact, service on such attorney shall be sufficient. And in all cases not embraced within the foregoing provisions, the judge may prescribe for extraordinary service according to the exigencies of each case.” It is contended that the provision of this statute for service by publication violates article 1, section 1, paragraph 3, of the State constitution, which relates to life, liberty, and property, and violates the fourteenth amendment of the constitution of the United States, relating to citizenship, and embraced in the Code of 1933, § 1-815. If this were a proceeding in personam, where a judgment in personam was sought, there might be merit in the contention. We do not pass upon that question. But the real question is, are the Georgia statutes providing for service by publication unconstitutional as applied to a proceeding in rem? We are of the opinion that this is a proceeding in rem. The proceeding is one to have set aside a decree of divorce in a court of this State rendered in a former case, on the ground that the same was fraudulently obtained. Speaking of the defendant in a proceeding for divorce, this court, in Fleming v. West, 98 Ga. 778 (27 S. E. 157), said: “If he was a non-resident of the State, service could be made by publication; but while service of a non-resident of the State by publication, if made conform-ably to the 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 that it would not give jurisdiction so far as to authorize also a decree for alimony; that while the decree in such a case is in rem in so far as it adjudicates as to the marital status, yet if it undertakes as an incident of' the divorce proceeding to deal with property rights of the defendant, it becomes in that respect a proceeding in personam.” And so in the present case, neither under the allegations of the petition nor under the prayers will the court have to deal with property rights of the defendant. While in Hood v. Hood, 130 Ga. 610 (61 S. E. 471, 19 L. R. A. (N S.) 193, 14 Ann. Cas. 359), it was held, “A judgment in personam for temporary alimony and attorney’s fees c?.n not be lawfully rendered in a divorce suit brought against a non-resident husband, who is not served with process within this State, and does not appear in the case, but is only constructively served by publication,” nevertheless the rule laid down in the case of Fleming v. West, supra, was recognized. If the original proceeding between Mrs. Axtell and her husband, a divorce case, was a proceeding in rem, then we think it necessarily follows, that the proceeding to set aside that decree is also a proceeding in rem; and being a proceeding in rem, a statute providing for service by publication is not unconstitutional for any of the reasons urged, nor in violation of any of the sections of the State and Federal constitutions referred to above. The court did not err in overruling the plea to the jurisdiction and the demurrer raising the contention that the plaintiff’s case was barred on the ground that she did not come into the court of equity with clean hands, that she had participated in the fraud alleged as grounds for setting aside the decree, and that she was barred by laches.

Judgment affirmed.

All the Justices concur, except Gilbert and Bell, JJ., who dissent.