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Edwards v. Edson

119 A.D. 684 Court Third Department, Decision date 1907-05-08 English

Delivered by Kellogg, J.:

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p. 684
Chloe A. Edwards, Appellant, v. Charles C. Edson, Respondent.
Third Department,
May 8, 1907.

Headnote

Husband and wife—divorce — service by publication—judgment for alimony not authorized.
A judgment for alimony and costs cannot -be awarded against a defendant in an action for divorce, if he was served by publication and did not appear in -the action. , . • .
Appeal by the plaintiff, Chloe A. Edwards, from-a judgmeht.of the Supreme Court in favor of. the defendant, entered in tlié office of the clerk of the county of Broome on the -28th day of December, 1906, ripon the decision of the court rendered after a trial at the Broome Trial Term, the jury having been discharged-, dismissing the complaint upon the merits. '' :
John P. Wheeler \_D. L. Maxfield of counsel], for the ■ appellant. ■
Einmam, Eoward ds Eattéll [Thomas B. Eattell of counsel], for the respondent.' .

-In 1871 the plaintiff obtained a judgment of divorce in- the Supreme Court in this State, the'summons- having been ¡served upon. the defendant by publication only, which judgment awarded to hei forty-three dollars, costs, and fifteen.dollars per month alimony for the term of ten years. The plaintiff, who has since married, brings 'this action. against the defendant by attaching certain property.

p. 685
belonging to him in this State, and seeks to recoyer such costs and alimony. The complaint was dismissed by the trial court upon the ground that the judgment so far as it awarded costs and alimony was void and not binding upon the defendant, he not having been served with the summons and not having appeared in.-that action.

This question has been decided adversely to the plaintiff in Rigney v. Rigney ( 127 N. Y. 408 ), and in Burch v. Burch ( 116 App. Div. 865 ). Rigney v. Rigney was reversed sub nom. Laing v. Rigney by the Supreme Court of the United States in 160 United States, 531, but upon other grounds, and the. decision of that case by the Court of Appeals stands as the law of the State that a judg- • ment for alimony and costs cannot be awarded against a defendant .in an action for divorce where he was not served with summons and did not appear in the action. The judgment is, therefore, affirmed, with costs.

All concurred; Sewell, J., not sitting.

Judgment affirmed, with costs. '

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