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Edwards v. Edson

104 N.Y.S. 292 Court N.Y. App. Div. Decision date 1907-05-08 English

Delivered by JOHN M. KELLOGG, J.

Contents

Majority

p. 292
(119 App. Div. 684)
EDWARDS v. EDSON.
(Supreme Court, Appellate Division, Third Department.
May 8, 1907.)

Headnote

Divoece—Alimony and Costs—Publication Sebvice.
A judgment for alimony and costs cannot be awarded against a defendant in a divorce action where he has not been served with summons, and does not appear in the action.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 17, Divorce, §§ 226, 515, 593.]
Appeal from Trial Term, Broome County.
Action by Chloe A. Edwards 'against Charles C. Edson. From a judgment against her, plaintiff appeals.
Affirmed.
Argued before SMITH, P. J., and CHESTER, KELLOGG, and COCHRANE, JJ.
John P. Wheeler (D. L. Maxfield, of counsel), for appellant.
Hinman, Howard Sr Kattell (Thomas B. Kattell, of counsel), for respondent.

In 1871 the plaintiff obtained a judgment of divorce in the Supreme Court in this state, the summons haviiig been served upon the defendant by publication only, which judgment awarded to her $43 costs and $15 per month alimony for the term of 10 years. The plaintiff, who has since married, brings this action against the defendant by attaching certain property belonging to him in this state, and seeks to recover 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 , 28 N. E. 406 , 24 Am. St. Rep. 462 ; Burch v. Burch, 116 App. Div. 865 , 102 N. Y. Supp. 305 . Rigney v. Rigney was reversed by the Supreme Court of the United States in Laing v. Rigney, 160 U. S. 531 , 16 Sup. Ct. 366 , 40 L. Ed. 525 , but upon other grounds; and the decision of that case by the Court of Appeals stands as the law of the state that a judgment for alimony and costs cannot

p. 293
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 concur.

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