Twing v. O'Meara

Day, J. The appellant insists that the judgment decreeing the property in question to Elizabeth Twing is void and may be collaterally attacked, because no statutory ground of attachment is stated, and because no attachment bond was executed. We are of the opinion, however, that the court would have been justified in decreeing the property to Elizabeth Twing as alimony if no attachment had been procured. There was no necessity whatever for the attachment, except to prevent the defendant in that action from aleinating his property before a decree could be obtained. The petition in this case concedes that notice of the divorce proceeding was duly and legally published. Section 2618 of the Code authorizes service by publication in an action for divorce where the defendant is a. non-resident of the State of Iowa, or his residence is unknown. Section 2229 of the Code provides that, when a divorce is decreed, the court may make such order in relation to the children, property, par [331] ties, and maintenance of the parties, as shall be right and proper. In Harshberger v. Harhsberger, 26 Iowa, 503, it is said “service of notice of publication may be made in actions for divorce. Alimony is an incident to divorce, and can only follow it, and the statute authorizing service of notice of publication, in an action for divorce, cannot fairly be construed to limit the power of the court, when service is thus made, to simply granting a divorce. It has jurisdiction of the cause, and may make all proper orders as to alimony, the custody of children, etc., which are incident to the divorce. Of course its orders as to alimony, when the service is by publication, would be binding only so far as the subject-matter out of which the alimony thus allowed was within its jurisdiction. If this court, upon such services, should render judgment for so many dollars as alimony, such judgment would not be held conclusive, and perhaps not even valid in a foreign jurisdiction.” In Harshberger v. Harshberger, supra, although service of the notice was by publication, the court awarded the plaintiff alimony and made it a lien upon the real estate of the defendant situated in another county. This case is decisive of the question that when notice is served by publication the court acquires jurisdiction to allow alimony. That it is competent for the court to set apart to the plaintiff a specific portion of the defendant’s real estate as alimony, see the following cases: Jolly v. Jolly, 1 Iowa, 8; Inskeep v. Inskeep, 5 Id., 204; Cole v. Cole, 23 Id., 433; McEwen v. McEwen, 26 Id., 375; Zuver v. Zuver, 36 Id., 190. It is urged that the property is not described in the petition for divorce, and that the plaintiff did not pray that this specific property should be set off to her as alimony. In our opinion neither of these things is essential to the jurisdiction of the court. In the divorce proceeding the plaintiff asked that she have a decree for such alimony as may be deemed [332] equitable. This prayer was sufficient to authorize the court to give the relief granted in the case. In Zuver v. Zuver, supra, it was held that alimony could be granted even when there was no prayer for it. In our opinion the demurrer to the petition was properly sustained. Abkirmed.