Chapman v. Chapman

185 S.W. 221, 194 Mo. App. 483, 1916 Mo. App. LEXIS 231

• Court: Missouri Court of Appeals
• Decided: April 18, 1916
• Status: Published

Opinions

ALLEN, J.

Plaintiff herein sues for divorce, and seeks in the same action to have a receiver appointed to take charge of certain real estate alleged to be the property of her asco'nding husband, Fred E. Chapman, and to have the same, or a part thereof, appropriated to the payment of alimony in gross which she prays the court to award to her as a special lien or demand against such property. The suit proceeds, not only against plaintiff’s husband, but the latter’s brother also, to whom, it is alleged, the husband attempted to convey all of his real property in fraud of plaintiff’s rights. Plaintiff was lawfully married to the defendant Fred E, Chapman on January 26, 1911, and from that date lived with him as his wife, in the city of St. Louis, until June 4, 1914, when, it is said he deserted her.

The amended petition charges that the defendant husband offered various indignations to plaintiff, such as to render her condition intolerable; that he was guilty of such conduct as to constitute him a vagrant, within the meaning of the vagrancy statute; and that he absented himself from plaintiff without reasonable cause for a space of more than one year; and, though able-bodied and possessed of means thereof, totally neglected and refused to support plaintiff or make any provision for her maintenance. The petition further avers that plaintiff is wholly without means of support, and for the prosecution of this action; that the defendant husband, Fred E. Chapman, is the owner of a certain lot of ground, in the city of St. Louis, describing it, with improvements thereon, known as 5059 Wells avenue, and other certain described lots in the county of St. Louis, with improvements thereon, known as 6428 and 6450 Etzel avenue; that said defendant, however, caused the title to all of said real estate to be placed in the name of his codefendant, Walter Chapman, who holds the naked legal title thereto for his benefit. And it is averred that the defendant Fred E. Chapman has absconded and absented himself from his usual place of abode in this State, and has concealed himself so that the ordinary process of law cannot be served upon' him; and that defendant Walter Chapman is a nonresident of the State of Missouri and cannot be served in this State in the manner prescribed by law. The petition prays that plaintiff be divorced from the bonds of matrimony contracted with defendant Fred E. Chapman, with restoration of her maiden name, and that the court “adjudge to her permanent alimony in gross for her support and maintenance, and alimony pendente lite and her attorney’s fees and suit money and costs, and enforce and establish the same as a lawful right, claim and demand to and against said estate within the jurisdiction of this court, and enforce the performance of the judgment by sequestration of said property and such other lawful ways and means as is according to the practice of the court; that a receiver be appointed to take charge of said property; that the defendants be enjoined from selling or in any wise disposing of or incumbering or injuring said property;” and for general relief.

Service was duly had upon both defendants by publication. Both defaulted, and upon a final hearing of the cause the court granted plaintiff a decree of divorce, with restoration of her maiden name, but declined to make any order touching the matter of alimony, and dismissed “the bill” as to defendant Walter Chapman. From this judgment plaintiff prosecutes the appeal before ns.

The evidence discloses that' plaintiff has suffered not only neglect but much of abuse and brutality at the hands of her husband, and that he finally abandoned her without cause and refused to. support her or to contribute in any way to her maintenance. The record also discloses that,- prior to the trial of this cause below, the defendant husband had been adjudged guilty of wife abandonment in a criminal proceeding, from which judgment of conviction he prosecuted an appeal which is now pending. The evidence, too, is overwhelming to the effect that defendant Fred E. Chapman is the real owner of the real estate described in plaintiff’s petition, that is to say, the owner of the “equity” in each piece of property, since each is incumbered by a mortgage. He collected the rents thereof through various agents from, time to time, who remitted to him. One óf these collectors testified that he had collected the rents for the three months prior to the trial, and that he mailed checks therefor, excepting for the “last rent,”' to defendant Fred E. Chapman, at 17 North Main street, East St. Louis, 111.; that he had not remitted the “last rent” for the reason that said defendant had left the East St. Louis address and the witness did not know how to reach him.

I. The learned, trial judge filed a written opinion herein to which we are at liberty to refer, though it is not a part of the record and not to be treated as such. Prom this it appears that the court was satisfied that the property described in the petition was in fact the property of the defendant Fred E. Chapman, but was of the opinion that the court was without jurisdiction to render any judgment whatsoever for alimony in the absence of personal service on the defendant husband; that though plaintiff is the innocent and injured party and entitled to a divorce and alimony, no judgment of any nature respecting alimony may be rendered in her behalf upon constructive service. And the learned trial judge expressed a serious doubt “whether or not a petition asking that alimony shall be declared a lien on defendant’s property in the hands of another can be joined with ordinary proceedings for divorce.” It is quite true that service by publication or personal service beyond the limits of the State will not support a judgment in personam. [Elvins v. Elvins, 176 Mo. App. loc. cit. 651, 159 S. W. 746, and cases cited.] And while the ordinary divorce suit is a proceeding in rem, the marriage status constituting the res, a personal judgment against the husband for alimony, as an incident thereto, cannot be- supported by constructive service upon him. [See Hedrix v. Hedrix, 103 Mo. App. 40, 77 S. W. 495; Ellison v. Martin, 53 Mo. 575; Moss v. Fitch, 212 Mo. 484, 111 S. W. 475; Elvins v. Elvins, supra, loc. cit. 652, 159, S. W. 746.] And a statute purporting to authorize the rendition of a personal judgment against a nonresident defendant upon service either by publication or personal service beyond the territorial limits of the State is to that extent absolutely void. [Priest v. Capitain, 236 Mo. 446, 139 S. W. 204; Moss v. Fitch, supra; Wilson v. Railroad, 108 Mo. 588, 18 S. W. 286.]

While this is quite true, in our opinion it falls far short of determining the chief question here presented for decision. In the case now before us, plaintiff’s counsel, after repeatedly making unsuccessful efforts to have process personally served in this State, and realizing the futility of any attempt to procure a personal judgment in plaintiff’s favor for alimony against her faithless and absconding husband, seeks by this proceeding to have the defendant’s property within the jurisdiction of the court seized and appropriated to the payment of alimony for the support and maintenance of plaintiff. Leaving out of consideration for the present other questions to be touched upon later, let us see whether or not our law can be said to countenance a proceeding of this character, for the relief of an innocent and injured wife whose husband has absconded and, to avoid his marital obligations, keeps his person beyond the reach of the process of our courts, but who leaves behind him property within the jurisdiction of the court wherein the proceeding is instituted.

It is quite true that the question thus presented has not been directly adjudicated in the courts of this State. Our reports appear to contain no reported decision in a case of this precise character. But, though this be true, it does not follow that the proceeding is one entirely beyond the purview and contemplation of our law. While our Supreme Court has consistently held that no general judgment, in personam, may he rendered for alimony, or otherwise, based upon constructive service either by publication or by extraterritorial service, no decision of that court, so far as we have observed, holds or intimates that a proceeding of a character in r,em may not be maintained in our courts to subject the property of an absconding husband, within this jurisdiction, to the support and maintenance of the wife domiciled here. On the contrary, it has been at least intimated that a proceeding of this nature may •perhaps be appropriate where personal service cannot be had upon the husband.

In the early case of Ellison v. Martin, 53 Mo. loc. cit. 578, the court through Adams, J., said:

“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 judgment might he given. [Smith v. McCutchen, 38 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 :u 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 rem for alimony, is a question we are not now (‘ailed 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.”

This is quoted approvingly in Moss v. Fitch, supra, (212 Mo. 484, 111 S. W. 475), in an opinion by Graves, J., where a personal judgment for alimony based upon extraterritorial service was held to be void.

What is so well and carefully said by the learned author of the opinion In Moss v. Fitch, supra, taken together with the excerpts quoted from other eases, appears to justify the first paragraph of the syllabus thereof, as reflecting the gist of the opinion on this point, which is as follows:

“No process issued by a court of this State, and personally served on a defendant in another State, can be the basis of a personal judgment. So that where plaintiff brought suit for divorce against her husband who was at the time in Wyoming, and he was personally served with summons in that State, but not in this State, and did not enter his appearance, the court-had jurisdiction to enter a decree granting plaintiff a divorce, but no jurisdiction to. award her a general judgment for alimony, even though he had property in this State. The substituted service provided for by section 582, Revised Statute 1899, is of no broader legal scope than service by publication provided for by section 575, and service in either mode only gives the court jurisdiction over the res, which in a suit for divorce, without asking for a special judgment against specially described property, is the divorce, the marital relation, the status of -the plaintiff in relation to the defendant. Disapproving certain observations on this point in Hamill v. Talbott, 72 Mo. App. 22, and 81 Mo. App. 210.”

It seems then that the Supreme Court does not, at any rate, look upon the doctrine invoked by appellant’s counsel as being either startling or revolutionary in character. And to our minds there is nothing in the statutory law or the settled policy of this State to prevent the maintaining of an áction of this character, properly brought, whereby property within the court’s jurisdiction, specifically described' in the petition, is acted upon and made to respond to the fulfillment of the marital obligations of the recreant husband, though his person be beyond the court’s jurisdiction and no general judgment may be rendered against him. It is true that the action for divorce is statutory; but there appears to be nothing in our statutory provisions relating thereto, or to alimony as an incident thereto, to prevent the maintaining of a proceeding of this nature.

Section 2375, Revised Statutes 1909, provides that:

“When a divorce shall be adjudged, the court shall make such order touching the alimony and maintenance of the wife, ... as, from the circumstances of the parties and the nature of the case, shall be reasonable, and when the wife is plaintiff, may order the defendant to give security for such alimony and maintenance; and upon his neglect to give the security required of him, or upon default of himself and his sureties, if any there be, to pay or provide such alimony and maintenance, may award an execution for the collection thereof, or enforce the performance of the judgment or order by sequestration of property, or by such other lawful ways and means as is according to the practice of the court.”

It is true that in the ordinary case it may be said that the remedies mentioned presuppose a personal judgment for alimony; but we think that a proceeding of this character, to reach the property of a husband who has absconded, and make it respond to the wife’s demand, may be said to be within the purview of this section. It is the settled policy of our State to enforce the husband’s marital obligations. To this end, abandonment of the wife without cause and failure to support her is denounced as a criminal offense; and the guilty husband is allowed no exemptions from a judgment for alimony in the wife’s favor. The courts, in our judgment, should not hesitate to give vital force to the manifest policy of the State, to afford protection to the wife, in so far as it lies within their power so to do without doing violence to express statutory enactments or overturning established and well-recognized legal principles.

As to proceeding by constructive service in such a case, section 1770, Revised Statutes 1909, appears broad enough to warrant such course. The section provides for service of this character “in suits of partition, divorce, attachment, suits for the foreclosure of mortgages and deeds of trust, and for the enforcement of mechanics’ liens and all other liens against either real or personal property, and in all actions at law or in equity, which have for their immediate object the enforcement or establishment of any lawful right, claim or demand to or against any real or personal property within the jurisdiction of the court.” The suit is for divorce, and proceeds too upon the theory that the wife, under the circumstances, has a just and lawfully enforceable “claim or demand to or against” the husband’s real estate described in the petition'. And we regard this theory, in the proper view of the marriage status and the husband’s obligations thereunder, as being a sound one. In the ordinary action for divorce the res is the marriage status, which at all events is within the court’s jurisdiction, and upon which its decree may operate. But, because of the nature of this proceeding, there is here another res, the hnshand’s property, described in the petition, also within the court’s jurisdiction, and which, by appropriate proceedings to that end, may, we think, be appropriated to satisfy the rightful demands of the wife growing out of the marital obligations assumed by the husband by virtue of the marriage contract, which create a duty that is incident to the marriage status before the court.

Though the appellate courts of this State have not been called upon to decide the precise question here under consideration, the view thereof indicated above has been sustained by courts of last resort in other jurisdictions in many well-considered opinions.

In Benner v. Benner, 63 Ohio St. 220, 58 N. E. 569, the action was one by a wife for alimony and for the maintenance of a child born of the marriage. The petition described real estate of the nonresident husband, and “prayed the allowance, out of the property, of a reasonable amount as alimony, and a sufficient sum for the support of the child.” In affirming a decree below in plaintiff’s favor, the court, among other things, said:

“If the action below was merely one in personam, the judgment cannot be maintained; for, in such an action the court could acquire no jurisdiction to render judgment without personal service on the defendant, or appearance by. him in the action. But if it may properly be regarded as an action in rem, the court could uridoubtedly obtain jurisdiction, by constructive service, to appropriate the property of the defendant, situated in the county where the action was brought, to the purposes of the action, though it could render no personal judgment on which a general execution could issue, or an action against him be maintained. It is contended this action was of the former character, because, prior to the rendition of any decree for the subjection of the property to the support of the plaintiff and child, it became necessary for the court to inquire into and determine the existence of the marriage relation, the residence of the plaintiff, the ground alleged for the allowance of the alimony,.and the amount to be awarded. Oases are cited to sustain this contention which hold that, though ex parte divorce may be obtained on constructive service, alimony cannot be decreed unless the defendant appear, or has been served with process within the jurisdiction of. the court. So far as we have examined them, these do not appear to be cases where the defendant had property within the jurisdiction of the court, which it was sought to reach and have appropriated to the support of the wife, but those only where a general personal judgment for alimony was rendered, or sought. It was said by Mr. Justice Field, in Pennoyer v. Neff, 95 U. S. 714, 723 (24 L. Ed. 565), that: ‘The State, through its tribunals may subject property situated within its limits, owned by nonresidents, to the payment of the demand of its own citizens against them; and the exercise of this jurisdiction in no respect infringes upon the sovereignty of the State where the owners are domiciled. Every State owes protection to its own citizens ; and, when nonresidents deal with them, it is a legitimate and just exercise of authority to hold and appropriate any property owned by such nonresidents to satisfy the claims of its citizens. It is in virtue of the State’s jurisdiction over the property of the nonresidents, situated within its limits, that its tribunals can inquire into that nonresident’s obligations to its own citizens, and the inquiry can then be carried only to the extent necessary to control the disposition of the property. If the nonresident have no property in the state, there is nothing upon which its tribunals' can adjudicate. . . .

“The plaintiff in her action below did not seek, nor obtain, a personal judgment against the defendant. She. and her child were residents of the county in which her suit was brought. The specific property she asked to have subjected to her support was situated in that county, and she sought no other relief than its appropriation, or such part of it as might be necessary for that purpose, in fulfillment of the defendant’s obligation to her in that behalf. The action and judgment were substantially in rein, in the sense that their direct object was to reach .and dispose of property within the jurisdiction of the court. ’’

In Wesner v. O’Brien, 56 Kan. 724, loc. cit. 728, 44 Pac. 1090, 1092, in an action for divorce and alimony where, as here, constructive service was had upon the nonresident husband, it is said:

“A court has no authority to render a judgment in personam without obtaining jurisdiction of the person of the defendant. Here, however, the land was brought within the control of the court in what was substantially a proceeding in rem. The complaining wife was here; the land sought to be subjected to alimony was here. . . . It was necessary for the support of the wife, who was seeking a divorce, and the law provides that alimony may be awarded in such eases. The land was subject to the laws of the State and was within the reach of the proceedings and process of its courts. In such a ease, we think the court has power, not only to terminate the marriage relation,, but to fix the custody and control of the children of the marriage who are before the court, and to appropriate as alimony any real property of the defendant within its territorial jurisdiction.”

In Blackinton v. Blackinton, 141 Mass. 432, 5 N. E. 830, the wife instituted a proceeding seeking, among other things, an allowance for the support and maintenance of herself and minor child out of the husband’s property within the jurisdiction, he being a nonresident and served by publication, under a statute providing that, “if a husband fails, without just cause, to provide suitable support for his wife, or deserts her,” the probate court may, make orders ‘ ‘ relative to the support of the wife and the care, custody and maintenance of the minor children of the parties.” • Touching the jurisdiction of the court below, acquired by constructive service upon the defendant, the court, through Holmes, J., (now Mr. Justice Holmes of the United States Supreme Court) said:

“Assuming that the probate court has jurisdiction of the subject-matter in such a case, we are of opinion that its right to proceed is not confined to cases where personal service can be made npon the respondent within the State. The jurisdiction in divorce is not confined to such cases. ... In like manner, so far as the petitioner seeks a decree protecting her person, and giving her the custody of her child now living in this commonwealth, we have no doubt that the statute confers power upon the probate court to make it. The question whether it also confers power to order the payment of money for maintenance is more difficult, but, in the opinion of a majority of the court, must be answered in the same wa; r. . . .

“The whole proceeding is for the regulation of a status. The incidents of that status are various — some concerning the person, some concerning the support, of the petitioner or her child. The order to pay money is not founded on an isolated obligation, as in a case of contract or tort, but upon a duty which is one of those incidents. The status, considered as a whole, is subject to regulation here, although it involves relations with another not here, because such regulation is necessary rightly to order the daily life, and to secure the comfort and support, of the party rightfully living within the jurisdiction. ’ ’

In Hanscom v. Hanscom, 6 Colo. App. 97, 39 Pac. 885, the suit was for alimony against a nonresident husband having property in the jurisdiction, and the complaint averred fraudulent conveyances made by the husband to defeat the plaintiff’s right. After a thorough discussion of the questions involved, the court held that the suit could be maintained, and that constructive service was sufficient to support the decree.

In Rhoades v. Rhoades, 78 Neb. 495, 111 N. W. 122, it was held that a court of equity will entertain an action for maintenance (or alimony) and. grant the same as against property situated in the jurisdiction, appropriating the same to payment thereof, where the defendant husband has deserted the plaintiff and become a nonresident, and service is had before him by publication, citing Benner v. Benner, supra; Blackinton v. Blackinton, Hanscom v. Hanscom, supra; Pennoyer v. Neff, supra; and other authorities.

In Murray v. Murray, 115 Cal. 266, 47 Pac. 37, the suit was one for maintenance, wherein it was sought to have fraudulent transfers of the nonresident husband’s real property, within the jurisdiction, set aside, and to "have the same subjected to the payment of the wife’s claim. It was held that the trial court had jurisdiction to afford the relief sought, upon service by publication.

In Harshberger v. Harshberger, 26 Iowa, 503, the wife prayed for divorce and alimony, and that the latter be decreed a lien on lands of the nonresident husband in the jurisdiction specifically described. The service was by publication. The court, affirming a decree in the wife’s favor below, said:

“Alimony is an incident to divorce, and can only follow it, and the statute authorizing service of notice by publication in an action for divorce cannot fairly be construed to limit the power of the court, where 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 the court, upon such service, should render a judgment for so many dollars as alimony, such judgment would not be held conclusive, and, perhaps, not even valid in a foreign jurisdiction.”

Other authorities directly or indirectly supporting this view might be discussed, but to do so would serve no useful purpose. We are of ’the opinion that our own statutes relative to divorce and alimony and constructive service are broad enough to authorize our courts to entertain a proceeding of.a character such as this; and that, if need be, equity will supply-remedies necessary to subject the husband’s property to the support and maintenance of the wife and minor children. [See Benner v. Benner, supra; Rhoades v. Rhoades, supra; Murray v. Murray, supra; Hanscom v. Hanscom, supra.] It is true that equity ordinarily acts in personam, and such was the early conception of equity jurisdiction. But in modern practice, courts of equity frequently afford relief in proceedings substantially in rem, where the exercise of such jurisdiction is essential to the granting of adequate relief to the complainant, as in Murray v. Murray and Hanscom v. Hanscom, supra. And our courts have upheld jurisdiction in suits of such character obtained through service by publication under our statute. [See Adams v. Cowles, 95 Mo. 501, 8 S. W. 711, 6 Am. St. Rep. 74; Clark v. Brotherhood of Locomotive Firemen, 99 Mo. App. 687, 74 S. W. 412.]

II. -In some of the cases from other jurisdictions to which we have referred above, the courts have deemed it essential to the rendition of a judgment of the character involved that the property thus sought to be appropriated to the wife’s claims he brought within the control of the trial court in the first instance by seizure in some manner agreeable to the practice of the court. But it is held that:

“Any authorized act by which the court takes charge of property, or asserts its control over it, is sufficient within the meaning of the rule, for the purpose of jurisdiction.” [Benner v. Benner, supra; Murray v. Murray, supra; Rhoades v. Rhoades, supra.]

And in Wesner v. O’Brien, supra, the judgment was sustained, though no steps were taken to bring the property within the control of the court otherwise than by the commencement of the suit and publication of the notice. [See, also, Benner v. Benner, supra, 63 Ohio St. loc. cit. 277, 58 N. E. 569.]

In the case before us, the appointment of a receiver is prayed, hut we think this unnecessary, since the suit proceeds, as in rem, against the property which is thereby directly brought within the control of the court.

III. But granting that [he right to thus proceed against the property of a nonresident husband should he sustained, in the case before us there is the question of the propriety of permitting the plaintiff to reach, in this action, property which the husband has attempted to convey to his co defendant.

In Hanscom v. Hanscom and Murray v. Murray, supra, the right to set aside fraudulent conveyances of the husband, in the same action,.was sustained.

But it must be borne in mind that we have no jurisdiction on appeal if the case is one directly involving the title to real estate; and it is our duty to look-to the question of our own jurisdiction.

In her petition plaintiff charges that the property described belongs in fact to the' defendant husband, though the record title is in his codefendant. But it appears that it is not sought to set aside any conveyances, or directly, adjudicate the question of title, but to appropriate for the purposes aforesaid whatever interest the defendant husband may have tin-such property. In this view, the appeal appears to be within our jurisdiction. A judgment awarding plaintiff alimony as a special lien against the property, charging it with the payment thereof, to the extent at least of the husband’s interest therein, does not operate, ipso facto, to divest any one of title, but merely fastens a charge upon the husband’s interest in the property. And though such judgment becomes a charge upon the land, and is not in personam, it is nevertheless capable of being fully satisfied by the payment in money of the alimony awarded, discharging the land from the lien thereof. [See Kennedy v. Duncan, 224 Mo. 661, 123 S. W. 856.]

Whatever interest, legal or equitable, that the defendant husband may have in property within the jurisdiction of the circuit court, may, in our opinion, be subjected to its judgment respecting an award of alimony to plaintiff. And if there be any formal defects in plaintiff’s petition herein, they are inconsequential at this stage of the case.

IY. We are thus led to the conclusion that it was within the power, and was the duty, of the court below to grant plaintiff relief in this action by way of a suitable award of alimony, charging the real property of her nonresident husband within the jurisdiction with the payment thereof. It is not necessary to state that such judgment, not being personal or general in its nature, must, so long as it remains unsatisfied, spend its force alone upon the property within the court’s jurisdiction, and can otherwise have no vitality.

But the question arises as to the jurisdiction of the circuit court of the city of St. Louis to affect by its decree that portion of the property described in the petition lying just beyond the city limits and situated in the county of St. Louis.

Section 1753, Revised Statutes 1909, provides that:-

“Suits for the possession of real estate, or whereby the title thereto may be affected, shall be brought, in the county within which such real estate, or some part thereof, is situate.”

A part of the real estate sought to be affected does in fact lie in the city of St. Louis, where the suit was instituted. But the plaintiff, by virtue of section 2371, Revised Statutes 1909, was compelled to institute the divorce proceeding in the city of St. Louis, wherein she resides; and alimony, under our practice, is an incident to divorce, and separate actions for alimony could not be instituted in different counties. If the remedy here invoked is to be held available in proceedings of this character, then, all things considered, the circuit court, whose final process runs throughout the State, must, in our opinion, be regarded as clothed, by virtue of our divorce laws, with jurisdiction and authority to reach by its decree property anywhere within the State, whereby to fully adjust the rights of the parties to the marriage contract to property within this State and subject to its laws.

In Wesner v. O’Brien, supra, 56 Kan. loc. cit. 729, 731, 44 Pac. 1090, 1092, anent this question, it is said:

“The jurisdiction depends upon the domicile of the plaintiff, and not upon the location of the land sought to be appropriated as alimony. It must be brought in the county of which the plaintiff is a resident, and cannot be maintained unless the plaintiff has been an actual resident of the State in good faith for one year before the filing of the petition. [Civil Code, section 640.] Alimony is an incident of the divorce proceeding, and, when the action is rightfully brought, any land within the operation of the laws of the State, and which has been brought within the control of the court, may be appropriated as alimony. The ancillary step in a divorce proceeding is not to be treated as an action brought to recover real estate or to determine an interest therein, and is not governed by the provisions of the Code directing that such actions shall be brought in the county wherein the land or some part thereof is situated. The divorce action may be brought where the plaintiff resides, and only one action is necessary, and when it is properly brought there is drawn to the court and within its jurisdiction any lands of the defendant sought to be appropriated as an incident of the divorce, wherever they may be situated within the State. ’ ’

And to the same tenor and effect is the decision of the Supreme Court of Iowa in Harshberger v. Harshberger, supra, where the real estate sought to be reached was wholly situated in a county other than that wherein the action was instituted.

V. Naturally, we hesitate to pass judgment upon a question of this importance as to which our Supreme Court has not definitely spoken. That the law ought to afford a wife, under such circumstances as are here present, relief against the property of her absconding husband, within the State, we think cannot be doubted. And we believe that to afford her such relief is consistent with our law as it is now written.

We -do not agree with the learned trial judge, for whose opinion we have great respect', that a judgment for alimony is, in the very nature of things, a personal judgment. The action for divorce is a proceeding sui generis. ■ [Mangels v. Mangels, 6 Mo. App. 481.] It deals with a status, one incident of which is the husband’s obligation to support and maintain the wife. And viewing our divorce law broadly, and as intended to afford full means for the regulation of that status, and the enforcement of the obligation of the husband thereunder to the wife domiciled in this jurisdiction, it would not seem to he illogical, or contrary to the spirit of our law, to make the husband’s property within the jurisdiction respond to the fulfillment of such obligation, in an appropriate proceeding to reach it and apply it, so far as may be just and proper,, to make provision for the necessities of the abandoned wife.

Our order herein will, accordingly, be that the judgment below be reversed, and the cause remanded to be proceeded with in accordance with the views expressed above. Nortoni, J., concurs. Reynolds, P. J., dissents, and as he deems the decision herein to be contrary to the decision of the Supreme Court in Moss v. Fitch, 212 Mo. 484, 111 S. W. 475, 126 Am. St. Rep. 568, and State ex rel. v. Blair, 238 Mo. 132, 142 S. W. 326, he requests that the cause be certified to the Supreme Court for determination by that tribunal. It is therefore so ordered.