Moyer v. Koontz

Dodge, J.

The statute of Wisconsin (Stats. 1898, sec. 2689) authorizes service by publication upon a defendant against whom a cause of action appears to exist ivhen the cause of action arose in this state, and the court has jurisdiction of the subject of the action, whether founded on contract or tort.

*24 Clearly, the cause of action arose within this state, and,, so far as our statute is concerned, the question of the right to acquire jurisdiction by publication depends on whether a. cause of action appears to exist against these defendants.

It was decided by this court in Johnson v. Coleman, 23 Wis. 458 , that in equity a cause of action exists by a widow to vacate and annul a decree of divorce obtained by fraud, and that such action can be maintained, after the death of the husband, against both his heirs and the administrators of his estate, provided, of course, there be property so that there are pecuniary interests to be affected; and this, too, in an action simply to annul the decree, without being addressed toward any specific property or rights therein. The doctrine of this case has support from many authorities, although it also has much antagonism in others. Assuming its correctness, it would appear that a cause of action does exist in favor of the plaintiff which arose in this state, and if the same survives (a question not discussed, though inferentially assumed, in Johnson v. Coleman), then that the children and • administrators are the proper parties thereto, so that it exists •against them.

Substantially the only difference between Johnson v. Coleman and this case is that the respondent defendants are nonresidents of this state. The question is whether this difference constitutes a legal distinction.

While procedure in our courts, inclusive of the method of obtaining jurisdiction by substituted service over those nonresident, is, and properly may be, regulated by our legislature, yet such power is subject to the federal limitation that, courts of a state cannot so acquire jurisdiction over nonresidents for mere' purposes of personal adjudication against them; indeed, not for any purpose, except to adjudicate either with reference to property within this state or with reference to the status of one of our own citizens. Our statutes on this subject of the acquirement of jurisdiction oven *25 nonresidents must be read in the light of the interstate limitations resting upon us by reason of the frame of government of the nation of which our state is a part. Pennoyer v. Neff, 95 U. S. 714 , is perhaps the leading case on this subject, and there the rule above stated is announced, and has never since been questioned.

Under the rule in Johnson v. Coleman there would seem to be no doubt that a wife might bring suit in our courts to annul a decree of divorce there entered, and confer jurisdiction by substituted service, in accordance with bur statutes therefor; but it would be for the reason that the purpose of the suit was to adjudicate and act upon her status in relation to her absent husband, just the same as if she were suing for a divorce. Marital status is well described by Mr. Bishop in §§ 698-702, vol. 1, and § 158, vol. 2, Marriage, Div. & Sep., and St. Sure v. Lindsfelt, 82 Wis. 346 , and State v. Luket, 90 Wis. 272 . The question to be decided is simple: Shall this person, citizen of this state, be adjudged to be married or single ? The status of marriage is dual. It cannot exist in the case of the one party without existing equally as to the other, and therefore, incidentally, the status of the nonresident party is to be adjudged as well. The object of such a suit as this, when the husband is alive, is to adjudicate that whereas, by the existing fraudulent decree, the plaintiff is made single, she shall, by the demanded judgment, be adjudicated to still be married. It is the converse of the divorce suit, where the relief sought is that, whereas the plaintiff is now married, she may be adjudged to be single. But, in a case like this, where, by the irrevocable act of death, her status as to her deceased husband has become fixed as that of a celibate, no such question can exist to be acted on. No decree that the courts of Wisconsin can render can change that status. It then becomes a mere adjudication as to a record, for the purpose of satisfying a sentiment or affecting property rights. As is well said in *26 2 Nelson., Divorce & Sep. § 1054, “ The proceeding will bear mere contest for property; for if the decree is vacated the survivor cannot be restored to marital rights [or status].”

It seems clear, therefore, that we have no question of status to act on here, so as to justify or empower our courts to reach their hands beyond the limits of the state, and seek, upon substituted service, to subject nonresidents to a decree, ostensibly to cure a record, the only purpose of which is to affect rights in property without this state. This would be in excess of the rights of the state. It is forbidden by the whole policy of our national government. It infringes that principle of the international law as it existed among the states in 1790, and is still maintained, that the jurisdiction of a state does not extend beyond its boundaries, and, if carried into effect, would violate the fourteenth amendment of the constitution, which prohibits Wisconsin and all other states from enacting any law which shall deprive any person of life, liberty, or property without due process of law.

Our statutes .for service upon nonresidents are subject to the limitation that the cause of action therein required to exist must be one which affects property within this state ■or which affects the status of a resident. Such cause of action is not presented by the complaint in this case, and no jurisdiction to adjudicate thereon can be obtained against the respondents.

By the Court.— The order appealed from is affirmed.