Opinion
No. 28447.
May 20, 1952.
Lowenhaupt, Waite, Chasnoff Stolar, Abraham Lowenhaupt, St. Louis, Walter Wehrle, Clayton, Thomas W. White, Anderson, Gilbert, Wolfort, Allen Bierman, N. H. Allen, Clifford Greve, St. Louis, for relator.
Claude W. McElwee, Lashly, Lashly Miller, St. Louis, for respondent.
This is an original proceeding filed in this court by James Martin Nelson III in which relator seeks a writ of prohibition to prevent Honorable F. E. Williams, Judges of the Circuit Court of the City of St. Louis, Missouri, presiding in Division No. 15, from taking further action in the case of Frances Reyburn Nelson v. James Martin Nelson III, the same being cause No. 42,139-D now pending in that court.
Upon the filing of the petition our preliminary writ of prohibition issued commanding respondent to make return and show cause why final judgment in prohibition should not be entered and directing him to take no further action in the premises until the further order of this court. In due course a return was filed for respondent, and it was thereupon stipulated by the parties that relator need file no pleading to the return and that these are the facts:
On November 20, 1950 suit for separate maintenance and for child support was filed in the Circuit Court of the City of St. Louis by Frances Reyburn Nelson against James Martin Nelson III.
On January 16, 1951 an affidavit for attachment was filed, a writ of attachment was ordered issued, upon filing of an attachment bond in the sum of $1,000, the bond was filed and approved, and a writ of attachment was issued returnable April 2, 1951 by which St. Louis Union Trust Company et al., trustees, were directed to be summoned as garnishees.
On January 17 the sheriff made return of service on St. Louis Union Trust Company as garnishee.
On February 15 a divorce suit was filed by James Martin Nelson III against Frances Reyburn Nelson in the Circuit Court of the County of St. Louis and on the same day Frances Reyburn Nelson, the defendant, was personally served with process therein.
On February 16 a return of service of process in the divorce suit pending in St. Louis County was filed.
On February 26 an affidavit for service by publication was filed in the Circuit Court of the City of St. Louis and an order was granted describing the various garnishments which had been run. On the same day an order of publication was granted by the same court.
On March 15 Frances Reyburn Nelson obtained an extension of time for pleading in the cause pending in the Circuit Court of the County of St. Louis. On the same day but in the Circuit Court of the City of St. Louis Frances Reyburn Nelson filed an application for separate maintenance pendente lite and attorney's fees.
On March 16 the order of publication granted by the Circuit Court of the City of St. Louis on February 26 was set aside by that court and a new order of publication was granted designating March 23 as the first day of publication.
On March 22 the sheriff of the City of St. Louis filed a certificate that he had mailed a copy of the order of publication to the defendant.
On March 28 Frances Reyburn Nelson filed her answer and cross-petition in the cause pending in the Circuit Court of the County of St. Louis in which she prayed for separate maintenance and support for herself and child.
On April 10 James Martin Nelson III filed in the Circuit Court of the County of St. Louis his answer to said cross-petition.
On April 19 James Martin Nelson III filed in the Circuit Court of the City of St. Louis a motion to dismiss the cause therein pending.
On the same day Frances Reyburn Nelson filed in the cause pending in the Circuit Court of the County of St. Louis a motion for alimony pendente lite, maintenance, attorney's fees and suit money.
On April 26 proof of publication was filed in the Circuit Court of the City of St. Louis showing publication in the St. Louis Daily Record of the order of publication on March 23rd and 30th and April 6th and 13th.
On May 18 the motion of James Martin Nelson III to dismiss the case pending in the Circuit Court of the City of St. Louis was submitted to that court.
On October 18 the respondent judge overruled the motion of James Martin Nelson III to dismiss the suit pending in the Circuit Court of the City of St. Louis and thereafter set for trial the application for maintenance pendente lite and attorneys' fees pending in that court and would have forced James Martin Nelson III to trial if the order of this court had not intervened.
The question is whether under the admitted facts the preliminary writ of prohibition issued by this court should be made absolute. The solution of this question depends upon which of the two circuit courts first acquired jurisdiction.
Before determining this issue there is a preliminary jurisdictional question inherent in the case. Can a married woman, whose husband without good cause abandons her without making suitable provision for her maintenance or for the support of a child of the marriage and who places himself beyond the reach of personal service of process, maintain an in rem or quasi in rem action for separate maintenance, child support and suit money by attachment against the property of the husband found within the state, based upon constructive service of process? While constructive service of process by publication furnishes no legal basis for a general judgment in personam, section 506.160, subd. 1 RSMo 1949, V.A.M.S., the state has power in a suit for separate maintenance to subject the property of a resident of the state to the satisfaction of his marital obligation to support his wife where he has absconded, or absented or concealed himself so that the ordinary process of law cannot be served upon him. Constructive service of process in such a case coupled with a proper proceeding whereby the property is seized and brought within the custody and control of the court, will give the court jurisdiction to render a decree for separate maintenance, child support and suit money which will be valid not in personam but as a charge binding upon, and to be satisfied out of, the property seized. This rule is consistent with the declared public policy of the state which makes the abandonment of a wife and child without good cause and failure to support them a criminal offense upon the part of the husband, section 559.350, RSMo 1949, V.A.M.S., and follows the general rule stated in 42 C.J.S., Husband and Wife, § 615 c, page 223, that "where the object of the suit is to compel the support and maintenance of the wife by reaching and appropriating, or fixing a lien on, property of the husband within the jurisdiction, the suit may proceed to decree as an action in rem or quasi in rem without personal service of process on the husband." See also 27 Am.Jur. p. 27 and annotations in 29 A.L.R. 1381, 64 A.L.R. 1392 and 108 A.L.R. 1302.
The statutory authority for the maintenance of an in rem or quasi in rem proceeding the object of which is to appropriate specific property of the absconding husband to the claims of the abandoned wife in a suit for separate maintenance is to be found in the separate maintenance statute, section 452.130, RSMo 1949, V.A.M.S., which authorizes and directs the court to order and adjudge that support and maintenance be provided and paid by the husband "out of his property"; section 452.140, RSMo 1949, V.A.M.S., which provides that no property shall be exempt from attachment in a proceeding instituted by a married woman for maintenance; section 521.010 RSMo 1949, V.A.M.S., which provides that in any court having competent jurisdiction in any civil action, the plaintiff may have an attachment against the property of the defendant "(4) Where the defendant has absconded or absented himself from his usual place of abode in this state, so that the ordinary process of law cannot be served upon him;" and section 506.160 subd. 1 RSMo 1949, V.A.M.S., which allows service by publication "in all cases affecting a fund, will, trust estate, specific property, or any interest therein, * * *."
Relator disputes this proposition, citing Elvins v. Elvins, 176 Mo.App. 645, 159 S.W. 746; Chapman v. Chapman, 269 Mo. 663, 192 S.W. 448, and Beckmann v. Beckmann, 358 Mo. 1029, 218 S.W.2d 566, loc. cit. 570, 9 A.L.R.2d 428; Id., Mo.App., 211 S.W.2d 536. These cases, however, do not militate against the rule we have announced. In none of them did the plaintiff, proceeding by way of attachment, seize, appropriate and bring before the court specific property of the defaulting husband, seeking a limited special judgment fixing a lien thereupon for the satisfaction of her claim. The Elvins case, supra, holds that a court is without jurisdiction to render a general in personam judgment in a suit for separate maintenance and child support pendente lite based on service of notice by publication. In that case the petition prayed for a general judgment against the husband, and neither the petition nor the judgment undertook to appropriate any distinct property of the defendant to the plaintiff's support and maintenance. The judgment in form was to be recovered by execution upon the general property of the defendant.
The Chapman and Beckmann cases, supra, were not suits for separate maintenance brought under a statute (see § 452.130, supra) which permits a special in rem judgment against specific property, but were divorce suits in which the wife sought an alimony judgment under a statute (see section 452.070 RSMo 1949, V.A.M.S.) which authorizes nothing more than a general in personam judgment against the husband.
In the Chapman case, supra [269 Mo. 663, 192 S.W. 449] after setting up her cause of action for divorce plaintiff alleged in her petition that defendant had two pieces of real estate; that defendant had absconded and absented himself from his usual place of abode in the state and concealed himself so that the ordinary process of law could not be served upon him; and prayed for an order of publication, and that the court adjudge her alimony in gross, alimony pendente lite, attorneys' fees, etc. "and enforce and establish the same as a lawful right, claim and demand to and against said real estate" and enforce the same by sequestration of said property. An order of publication was made which was duly published. The real estate was not brought before the court by attachment process. Defendant defaulted and the court, after hearing evidence, granted a divorce but refused a judgment for alimony on the ground that the court had no jurisdiction on constructive service to render a judgment for alimony. The wife on appeal contended that by describing the property in the petition with a prayer for its sequestration and by the inclusion of all those things in the order of publication, the proceeding was made one in rem as to such property. The Supreme Court held that "there is not in this state any law authorizing a proceeding against defendant's property for alimony on constructive service of process. The state has never exercised the power which it possesses in that respect. The courts cannot get such power until the state gives it to them by law. * * * The court is not authorized by the statute to make any order or decree with reference to any specific property. It can only render judgment for money as alimony." Quoting from Elvins v. Elvins, supra, for the proposition that the right to proceed in rem upon service by publication in such an action must be derived from RSMo 1909 § 1770 (present § 506.160 subd. 1, the opinion stated that there is nothing in that section or in RSMo 1909 § 2375 (present § 452.070) relating to alimony judgments, which authorizes a proceeding in rem against the property of a defendant in a divorce case. Section 1770, supra, brought down to RSMo 1939 as § 891, was repealed by Laws of Missouri 1943, p. 358, and in lieu thereof present § 506.160, subd. 1, V.A.M.S., was enacted, as follows:
"Service by mail or by publication shall be allowed in all cases affecting a fund, will, trust estate, specific property, or any interest therein, or any res or status within the jurisdiction of the court, or in any special proceedings in which notice by mail or by publication is authorized, including but not limited to actions to quiet title and actions to ascertain and determine title to real estate. If the defendant so served does not appear, judgment may be rendered affecting said property, res or status within the jurisdiction of the court as to said defendant, but such service shall not warrant a general judgment against such defendant." (Italics ours.)
While RSMo 1909 § 2375 (present § 452.070) authorizes an in personam judgment and nothing more in a suit for alimony, section 452.130 RSMo 1949, V.A.M.S., by the use of the words "to be provided and paid by the husband * * * out of his property" authorizes an in rem judgment against the property of the husband in a suit for separate maintenance.
The Beckmann case, supra, which voids a personal judgment for alimony, child support and attorneys' fees based upon constructive service, does not rule the case at bar. Undoubtedly constructive service does not warrant a general judgment. Section 506.160, subd. 1 RSMo 1949, V.A.M.S., supra, specifically so provides. That is not to say, however, that constructive service in an in rem proceeding against specific property seized by attachment will not support a special judgment against the property. The distinction between an action in rem for separate maintenance by way of attachment under a statute authorizing an in rem award out of the property of the defendant, § 452.130, supra, and an action for alimony, without employing the remedy of attachment, under a statute which does not authorize an award out of the property of the defendant but contemplates only a general in personam judgment, section 452.070 RSMo 1949, V.A.M.S., is obvious.
Turning to the principal question for decision, i. e. which court first acquired jurisdiction, the parties agree that where two actions involving the same subject are brought between the same parties to test the same right in different courts of concurrent jurisdiction, the first court acquiring jurisdiction, if its power is adequate to the administration of complete justice, retains jurisdiction and may dispose of the whole controversy without the interference of any other court or courts of co-ordinate power. Haefner v. Estate of Gaebler, Mo. App. 1952, 248 S.W.2d 12; State ex rel. Fromme v. Harris, Mo.App., 194 S.W.2d 932; 21 C.J.S., Courts, § 492, page 745.
It is our conclusion that the Circuit Court of the County of St. Louis first acquired jurisdiction by virtue of (1) the personal service of process on Frances Reyburn Nelson on February 15, (2) the filing of Mrs. Nelson's cross-petition for separate maintenance on March 28 in that suit, and (3) the filing of Mrs. Nelson's motion for alimony pendente lite, maintenance and attorney's fees on April 19, all of which occurred before the Circuit Court of the City of St. Louis acquired jurisdiction. This conclusion is inescapable under the familiar rule that jurisdiction is acquired by the issuance and service of process, and in case of conflict of jurisdiction priority is determined by the date of service of process. Haefner v. Estate of Gaebler, supra, and cases cited. See also State ex rel. Nicholson v. McLaughlin, Mo.App., 170 S.W.2d 705; State ex rel. Davis v. Ellison, 276 Mo. 642, 208 S.W. 439.
Respondent contends that jurisdiction first vested in the Circuit Court of the City of St. Louis and became complete on February 16 upon the levy of the writ of attachment issued out of that court. In support of this theory counsel for respondent cite Shea v. Shea, 154 Mo. 599, 55 S.W. 869. In that case plaintiff commenced an action by attachment to annual her marriage, and for alimony. After the levy of an attachment but before publication of notice was completed the attachment defendant, Patrick Shea, died. After publication was completed the attachment plaintiff proceeded to judgment without knowledge of Shea's death, and the land attached was sold under a special execution issued on the judgment. The title thus obtained was upheld as against the claims of the heirs of Patrick Shea, the court holding that jurisdiction over the res had been fully acquired by the filing of the petition, affidavit and bond for attachment, the issuance of the writ and the levy thereof during the lifetime of Patrick Shea, and the fact that he subsequently died before the order of publication was executed did not render void the judgment obtained thereon in ignorance of his death. That case, however, does not involve a conflict between the exercise of jurisdiction by two courts of co-ordinate jurisdiction. Nor does it hold that the levy of a writ of attachment, without more, vests full and complete jurisdiction authorizing the attachment court to adjudicate. It merely holds that a court which issues a writ of attachment acquires jurisdiction of the attached property upon the filing of the petition, affidavit and bond for attachment, the issuance and levy of the writ, and that the subsequent death of the attachment defendant does not oust the jurisdiction of the court to proceed to a valid judgment. Jurisdiction over the res, however, is but one of the essentials necessary to confer upon the court complete and exclusive jurisdiction. The other essential is notification of the owner of the property in the manner required by the statute. State ex rel. Davis v. Ellison, supra. The Shea case does not hold that jurisdiction over the subject matter alone, before the completion of the notification process, clothed the court with the power to proceed to adjudicate the rights of the parties. Granting for the purpose of argument that the property in the case at bar was properly attached, that Mrs. Nelson properly instituted valid in rem or quasi in rem proceedings, and that the Circuit Court of the City of St. Louis had jurisdiction of the bank account and interest of James Martin Nelson III in the trust funds by virtue of the levy of the writ of attachment, something more was required before the Circuit Court of the City of St. Louis had plenary jurisdiction to adjudicate. Section 521.170 RSMo 1949, V.A.M.S., says "The writ and petition shall be served upon the defendant as an ordinary summons". This means that the property must be attached and the defendant notified. If the defendant cannot be personally served (as in this case) a form of substituted service must be had. The law requires not only the attachment of the property but also the notification of the defendant before the court has full and complete jurisdiction to render a judgment in an attachment proceeding. Givens v. Harlow, 251 Mo. 231, loc. cit. 243, 158 S.W. 355; Payne v. Brooke, Mo.App., 217 S.W. 595; Graves v. Smith, 278 Mo. 592, 213 S.W. 128; Weidman v. Byrne, 207 Mo.App. 500, 226 S.W. 280; State ex rel. Ferrocarriles Nacionales De Mexico v. Rutledge, 331 Mo. 1015, 56 S.W.2d 28, 85 A.L.R. 1378.
Jurisdiction in the Circuit Court of the City of St. Louis in the full sense of the word, i. e. power to proceed to an adjudication of the rights of the parties, depended upon the passage of 45 days after the date of the first publication. Publication was commenced on March 23 so that the date on which jurisdiction would have attached was May 7. Mrs. Nelson filed her application for separate maintenance pendente lite and attorney's fees in the Circuit Court of the City of St. Louis on March 15, but the motion could not have been heard in that court in any event prior to May 7 and any order with respect to relator's property made before the return day would have been null and void. Newton v. Newton, 32 Mo.App. 162. In the meantime the Circuit Court of the County of St. Louis was clothed with complete and exclusive jurisdiction to the end of the litigation, State ex rel. Nicholson v. McLaughlin, supra, State ex rel. Davis v. Ellison, supra, not only to determine the question of divorce or no divorce, but also jurisdiction to determine all questions relating to support and maintenance, as well as suit money. Weisheyer v. Weisheyer, Mo.App., 14 S.W.2d 486, loc. cit. 487.
State ex rel. Elliott v. James, 239 Mo. App. 970, 194 S.W.2d 700, holds that the mere pendency of a later divorce case between the parties is no ground for ordering a prior separate maintenance suit to be stayed to abide the divorce action. That holding does not conflict with our ruling. The distinction between the two cases lies in the fact that in the Elliott case the Circuit Court of Jackson County, Independence Division, in which the prior separate maintenance suit was filed, acquired full and complete jurisdiction of both the subject matter and the parties before the divorce case was filed in the Circuit Court of Jackson County at Kansas City, whereas in the case at bar the Circuit Court of the City of St. Louis did not acquire full and complete jurisdiction prior to the time the jurisdiction over both the subject matter and the parties vested in the Circuit Court of the County of St. Louis.
Counsel for respondent insist that although the Circuit Court of the County of St. Louis had jurisdiction to adjudicate the claim of Mrs. Nelson for support and maintenance from the date she filed her cross-petition in the county, that court could not adjudicate her claim for support and maintenance and for attorney's fees incurred from the time of the institution of the separate maintenance action in the city to the time of the filing of her cross-petition in the county; that only the Circuit Court of the City of St. Louis could pass on these claims.
A motion for maintenance pendente lite and suit money is incidental to and constitutes but an adjunct to the main action. Meredith v. Meredith, Mo.App., 151 S.W.2d 536. As its name implies, it is an auxiliary proceeding which depends for its vitality upon the existence of live, pending litigation on the merits. While it is a separate and distinct matter standing upon its own merits and is not dependent in any way upon the merits of the principal controversy, Crooks v. Crooks, Mo.App., 197 S.W.2d 686; Remley v. Remley, Mo.App., 208 S.W.2d 815, and although an order disposing of a motion for allowances pendente lite in a separate maintenance action is a "final judgment" for the purposes of appeal, Meredith v. Meredith, supra, jurisdiction to entertain such a motion necessarily depends upon the continuation of jurisdiction of the court in the main action. When the Circuit Court of the County of St. Louis acquired full and complete jurisdiction over the separate maintenance proceedings nothing remained to which the jurisdiction of the Circuit Court of the City of St. Louis in connection with temporary allowances could attach. State ex rel. Nicholson v. McLaughlin, supra; State ex rel. Aetna Life Ins. Co. v. Knehans, Mo.App., 31 S.W.2d 226, loc. cit. 228.
Respondent in setting the application for maintenance pendente lite for trial was acting in excess of his jurisdiction and was without jurisdiction.
Relator, therefore, is entitled to have final judgment prohibiting respondent from taking further action in Frances Reyburn Nelson v. James Martin Nelson III, cause No. 42,139-D now pending in the Circuit Court of the City of St. Louis, and the Commissioner recommends that a permanent writ of prohibition issue.
The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.
The preliminary writ of prohibition is, accordingly, made permanent.
BENNICK, P. J., and ANDERSON, J., concur.
RUDDY, J., absent when argued and submitted.