Majority
p. 865Abbie Isabelle Burch, Respondent, v. Frederick R. Burch, Appellant. Second Department, January 25, 1907.
Headnote
Husband and wife — divorce —• service by publication — money judgment cannot be entered thereon.An action of divorce is an action in rem and service on the defendant without the State may be made by publication; but unless the defendant" appear or jurisdiction has been obtained by attachment, a judgment for alimony and costs cannot be entered.
An execution on a judgment for costs improperly entered will be vacated, though it would be better practice to move to set aside the judgment.
Appeal by the defendant, Frederick B. Burch, from an order of the Supreme Court, made at the Oneida Special Term and entered in-the office of-the clerk of the county of Kings on the ¡9th. day of May, 1906, as amended by an order entered in said clerk’s office on the 9th day of June, -1906, denying the defendant’s motion - to vacate a.n execution against him theretofore issued to the sheriff of Oswego county upon a judgment in an action for divorce.
Motion was made to set aside an execution issued to the sheriff of Oswego county upon a judgment entered April 8, 1891, for • costs,
$261.10,-in an action for divorce. The' plaintiff obtained a-, judgment of divorce against defendant, with costs of the action. ' The summons and complaint was served upon defendant without the State by mail. The defendant did not appear and judgment was taken by default. Mo attachment was issued against any property of defendant; in fact, it does not appear that he had any.
Louis C. Rowe, for the appellant.
J. Stewart Ross, for the respondent.
This is an appeal from an order denying defendant’s motion to vacate and set aside an execution made upon the grounds, among-others: “ That there is no authority in law authorizing the issuance of said execution and the same is irregular in form and substance;' that there is no valid judgment upon which said execution can be issued.’»
We think the court had power, assuming the judgment to have been valid, to make the order from which- this appeal is: taken, and
p. 866
this brings us to a. determination of the question as' to whether the judgment rendered was Valid and whether its validity is open to a collateral attack. The action may be regarded as one in rem. The summons and complaint were served" as required by the- Code of Civil Procedure and the decision of -the court, in so far as it relates to the purpose" .for which the action was brought, is binding' and conclusive between the parties and is not attacked in this .proceed?' ing. We are finable, however, to find any authority in this State for: rendering a judgment for a sum of money against a nonresident defendant upon whom personal service has not been made, without his appearance, unless jurisdiction has been obtained by attachment. Before a judgment can be rendered it must be made to appear that this formality has been' complied with: (Code Civ. Proc. §§' 1216, 1217.) The service of .the summons and complaint upon defendant in Chicago by mail was riot sufficient .to acquire jurisdiction to-render a judgment in the State of 2sTew York for a sum of money. (Pennoyer v. Neff, 95 U. S. 714 ; Rigney v. Rigney, 127 N. Y. 408 .) It was said in Rigney v. Rigney {supra) that. “ A judgment for alimony and costs cannot be supported on the ground that they are" mere incidents of and .subordinate to'the right to a divorce, and the jurisdiction which is sufficient to support a decree changing the marital status of the plaintiff, will'not necessarily-sustain .a judgment for alimony and costs.” This case was. subsequently reversed by the' Supreme Court of-the United States - upon another ground. (Laing v. Rigney, 160 U. S. 531 .) It is .still an authority, however, upon the question involved here. The judgment for. costs was rendered without aiithority and is void as to the defendant. Ho-valid force or effect can be given to any proceeding under a'void judgment,,and while better practice might have been a motion to set aside the judgment, still the execution is open to attack and ought to have been vacated and set aside. (Rowe v. Peckham, 30 App. Div. 173 , 176; Johnson v. Manning, No. 1, 75 id. 285 .) The order, therefore, must be reversed. '.
'Bjrsohberg, P. J,, Woodward, Jebes and Milder,. JJ., concurred.
'■ Order reversed, with ten ‘dollars 'césts and disbursements, and "motion granted,- with'.costs. ':
Cases cited
- Pennoyer v. Neff 95 U. S. 714 p. 866
- Rigney v. Rigney 127 N. Y. 408 p. 866
- Laing v. Rigney 160 U. S. 531 p. 866