Page:Harvard Law Review Volume 4.djvu/43

27 ^DEFECTIVE ALIMONY DECREES. 2/ The complex and nature of a suit for divorce and for alimony will be suggested from the following cases : — Gould V. Crow.i « ^ divorce suit is a proceeding hi rem. The status of the husband is the res to be acted on and dissolved by the decree. The decree so pronounced is a judgment in rem ; but such judgments can only have effect upon the thing acted on by the decree, and such rights as are dependent on that for existence. Therefore, if a court, in severing the marriage tie, undertakes to render a decree in personam as to alimony, it can have no extra-territorial effect." In this case there was no per- sonal service upon the husband, which gave the court opportunity to show that judgment for divorce and for alimony proceeded on distinct grounds — that one could stand where the other could not. The allegations and circumstances authorizing the one are not identical with those authorizing the other. Lytle V. Lytle.2 ** In divorce cases, no more than in any other, can the court render a decree for the payment of money by a defendant not personally served. The remedy for the complain- ant must, in these cases, be confined to the dissolution of the mar- riage tie, with the incidental benefits springing therefrom, and to an order for the custody of the children," — thus distinguishing between what is really " incidental " to divorce, from alimony, which is a possible but not invariable consequence of a number of facts of which divorce is only one. Ellison V. Martin.^ Action on an alimony claim. In the divorce suit there had been a prayer for alimony with allegations for divorce, judgment by default for $200 alimony, execution on husband's land, sheriff's sale and deed. By the court: "In her petition for divorce she alleged that her husband owned eighty the confusion and uncertainty which would attend legal proceedings, and the injustice which must frequently take place. The rule that the decree must conform to the alle- gations, as well as the proofs of the parties, is not only one which justice requires, but one which necessity imposes on courts." A Massachusetts jurist adds (Story's Eq. PI., §" 257) : " Every fact essential to the plaintiff's title to maintain the bill and obtain the relief, must be stated in the bill, other- wise the defect will be fatal." See also Johnson v. Johnson, 4 Wis. 140. Fulton V. Fulton, 36 Miss. 517, 520. " The decree of a court of equity upon oral allegations would be an idle act, if no force beyond that of an advisory proceeding of the chancellor. And the reason is, that the courts are not authorized to exert their power in that way." Windsor v. McVeigh, 93 U. S. 283. Mere testimony as to the husband's means, without any pleadings concerning such duly served upon him, is equivalent to " oral allegations.'* 1 57 Mo. 203. 2 48 Ind. 200, at p. 202. » 53 Mo. p. 577.