Ellison v. Martin

Adams, Judge, delivered the opinion of the court. This was a partition case, which resulted in a judgment for the sale of the lands for the purpose of division of the proceeds among the.parties according to their respective interests therein as adjudged by the court. The lands are situated in Adair county, and belonged to Rolla Martin, who died intestate, leaving seven heirs at law entitled to these lands, one of whom was Franklin, alias French Martin. Parmelia Martin was the wife of French Martin, and instituted a suit for a divorce against him in the Lewis Circuit Court. In her petition for a divorce she alleged, that her husband, French Martin, was the owner of eighty acres of land in Adair County, but did not describe the land; she asked fo«r alimony during the pendency of the suit, and for a final judgment for alimony, but did not demand any judgment against the land itself. The said French Martin was a non-resident of this State, and was proceeded against as such in the divorce suit by order of publication. He made no appearance, and a judgment by default was rendered against him, which was made final at a subsequent term. And at the time it was made final, the court also - rendered a personal general judgment against him for two hundred dollars for alimony, and ordered execution to be issued thereon. An execution was issued on this general judgment, in favor of the wife, to the sheriff of Adair county, and levied on French Martin’s interest in the land in dispute, and the sheriff sold such interest, and the plaintiff bought the same, and took the sheriff’s deed therefor. The only title set up by the plaintiff is predicated on this sheriff’s deed. The court held, that it conveyed to the plaintiff French Martin’s interest in the premises, and that the plaintiff was entitled to one-seventh part of the lands or their proceeds. [578] From this judgment the defendants have appealed to this court. Several instructions were asked by the defendants, and refused by the court. And also an instruction at the instance of the plaintiff was given. None of the instructions fairly present the only point necessary to consider, and it is therefore unnecessary to set them out, or to comment on them. It is manifest from the only evidence relied on by plaintiff, that he had no standing in court. He stood alone upon the sheriff’s deed. If the judgment for alimony was void, the sheriff’s deed was also void. • Our laws do not allow general judgments to be rendered against parties merely on publication of notice, and without appearance of the defendant. The Legislature never contemplated that such judgments might be given. (Smith vs. McCutchen, 88 Mo., 415.) A judgment on order of publication can only be given in proceedings in rem. A divorce suit is a proceeding in rem, and the res is the status of the plaintiff in relation to the defendant, to be acted on by the court. This relation being before the court in the person of the plaintiff, the court acts on it, and dissolves it by a judgment of divorce. But there was nothing before the court to act on in regard to alimony in this case. Whether property can be brought before the court by describing it in'the petition, and demanding a judgment in r.em for alimony, is a question we are not now called upon to decide. This judgment was a general judgment in personam, and such judgments cannot be rendered in this State merely on publication of notice. Under this view, the judgment must be reversed and the cause remaudpd. The other Judges concur.