Fleming v. West , 98 Ga. 778 ( 1896 )

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.