author: GRAVES, C. J. PER CURIAM:

text:
    THE STATE ex rel. MO. PAC. RY. CO. et al., Appellants, v. JOHN M. ATKINSON et al., Commissioners and Members of the Public Service Commission.
    In Banc,
    January 29, 1917.
    1. SLEEPING CAB.: Power of Public Service Commission. The Public Service Commission is given power by statute to require railroad companies, under a proper state of facts, to furniáh sleeping cars for the transportation of passengers, either for their “comfort or convenience” or as an “adequate” equipment or service.
    2. —-: -: Necessity. Sleeping cars on railroads cannot be classed as mere conveniences or luxuries. They have become necessities of modern industrial, commercial and social life; and as such, under a proper state of facts, the Public Service Commission may compel a railroad company to supply them as an adequate passenger transportation equipment.
    3. -: -: Facts Showing Necessity. A showing made by complainant that for nearly thirty years the railroad company maintained a sleeping-car service on its railroad from Pleasant Hill to Joplin and that there has been an increase in population, is sufficient to call from the railway company a clear showing as to the loss if any resulting from maintaining the service; and where, under such conditions, no condition that lessens the necessity for the sleeping car service is shown, and the only excuse for discontinuing the service is that for a little longer than three months the sleeping car had earned only about one-half the rental charge the company had to pay for its use, but that showing takes into account only the amounts it earned on the branch line between Pleasant Hill and Joplin and not what it earned between Pleasant Hill and Kansas City and between Pleasant Hill and St. Louis, the Public Service Commission was justified in making an order requiring the company to furnish a sleeping car for one year, and to keep an account of its full earnings, and permitting it, if it wished, to make application at the end of the year for a change in the order.
    4. -: -: Loss on Branch Line. If a sleeping car on the branch line of a railroad is necessary for the comfort or convenience of the traveling public, the fact that before its discontinuance it was operated at a financial loss, will not render unreasonable an order of the Public Service Commission requiring its installation, if the whole- service of its class and kind on tne entire railroad is profitable. The fact that a sleeping-car service on a branch line, or other isolated portions of the system, results in pecuniary loss, is only one of many facts to be considered in determining the reasonableness of an order requiring the service. It will not of itself render the order invalid.

      5. PUBLIC SERVICE COMMISSION: Party to Order: Notice: Untimely Objection. An objection that the receiver of a railroad, required by the order of the Public Service Commission to install a sleeping-car service over a branch line, was not brought before the commission by proper notice, made for the first time in the motion for a new trial in the circuit court, comes too late. The statute declares that no such objection shall be considered unless set forth in the application for a rehearing by the commission.
    Appeal from Cole Circuit Court. — Row. J. G. Slate, Judge.
    Affirmed.

      James F. Green and R. R. Larimore for appellant.
    (1) No common-law duty requires a railroad company, in the performance of its obligations as a common carrier, to transport, with its passenger trains, either express or sleeping cars, and, in the absence of a statute requiring such service, it has a legal right to refuse to provide such accommodations. Coleman v. Pac. Railroad, 89 Atl. 87; D. & R. G. Railroad v. Wahn, 11 L. R. A. (N. S.) 432, 89 Pac. 39; Russell v. Railroad, 61 N. E. 678; McDermon v. Railroad, 122 Fed. 669. (2) There is no statute in force in this. State requiring carriers to transport sleeping cars attached to their passenger trains, and a proper construction of the act creating the Public Service Commission and defining its powers gives the commission no authority to require such service. Mc-Dermon v. Railroad, 122 Fed. 669; State ex rel. v. Thompson, 36 Mo. 70; State- ex rel. v. Gammon, 76 Mo. 426; Shaw v. Railroad, 101 U. S. 565. (3) Transportation means a taking up of persons or property at one point and putting them down at another. Ferry Co. v. Pennsylvania, 114 IT. S. 196. (4) The order of the commission in this case as to B. F. Bush, Receiver, was made without notice, without opportuntiy to be heard and without said Bush having been made a defendant, and to enforce such an order would be the taking of property without due process of law. Ballard v. Hunter, 204 IT. S. 241; Railroad v. Iowa, 160 IT. S. 389. (5) The order made in this case is not justified by public necessity, and is, therefore, the taking of property without due process of law. Also the enforcement of the order made by the commission will burden relators with great expense and bring them no revenue. State ex rel. v. Fairchild, 224 U. S. 510; Railroad v. North Carolina Comm., 206 U. S. 267; Mo. Pac. Railroad v. Kansas, 216 U. S. 262.

      Alex Z. Patterson and James D. Lindsay for respondents.
    (1) Under the provisions of the Public Service Commission Act, the commission has the authority to require companies operating railways in this State to place sleeping cars in service on their lines. Public Service Commission Act .1913; subdivisions 2, 24 and 26 of section 2; sections 26, 27 and 43; paragraph 1 of section 16; paragraph 2 of section 47; sections 49 and 51; and section 127. Railroad v. Public Service Comm., 75 W. Ya. 100, 83 S. E. 286. (2) The order made by the commission was in the nature of a test, an interlocutory order, a reasonable and practicable method of ascertaining the very truth of the matter, and such an order should not be set aside upon uncertain grounds, nor except on the clearest evidence, nor until the test shall have been made. Holabird v. Railroad Comm., 154 Pac. 831; Des Moines v. Uas Co., 238 IJ. S. 173; Railroad v. Towers, 126 Md. 54; Traction Corp. v. Trenton, 227 Fed. 502; Knoxville v. Water Co., 212 U. S. 1; Willcox v. Uas Co., 212 U. S. 54. (3) An order requiring the railroad company to furnish sleeping car service, though at a loss, is not necessarily nor conclusively for that reason invalid nor unreasonable, since consideration must be given to the company’s returns as a whole, the degree of convenience to the public, and the reasonableness of the demand for the service* under all the facts in the particular case. State v. Railroad, 239 Mo. 234; Railroad v. Railroad Comm., 152 Wis. 654; Railroad v. Railroad Comm., 54 Colo. 64; Railroad v. North Carolina Comm., 206 U. S. 3. (4) It is not essential that a profit be derived from each and every particular kind of service rendered by a railroad company. An order to do a particular act not involving the question of the profitableness of the operation of the railroad as an entirety, though the doing' of the act specified may entail some loss, is not void, unless it be so inherently unjust and unreasonable as to amount to a deprivation of property without due process of law, or a denial of the equal protection of the laws. Railroad v. North Carolina Comm., 206 U. S. 24; Railroad v. Minnesota, 186 U. S. 257; Railroad v. Jacobson, 179 U.' S. 287. (5) The appellants cannot in this court urge or rely on any ground not specifically set forth in the application before the commission for a rehearing. Public Service Commission Act 1913, sec. 110.
   GRAVES, C. J.

Since 1872 the Missouri Pacific Railway Company has owned and operated a line of railroad from Joplin, Missouri, to Pleasant Hill, Missouri, at which point it connected with the main line from St. Louis to Kansas City. During most of this long time and up to about April 11, 1915, it maintained a Pullman car service, by having a Pullman car attached to one of its trains leaving St. Louis, and by having this car detached at Pleasant Hill, and then attached to a train running from Kansas City to Joplin. A like arrangement was had for east-bound passengers, by having a Pullman car attached to a Kansas City train at Joplin, and detached at Pleasant Hill, and there atcaced to a St. Louis train. The taking off of this Pullman service was the occasion of a complaint by the Business Men’s League of Carthage against the railway, company, before our Public Service Commission, which made a provisional order requiring said company to retain such Pullman service, for a period beginning December 15, 1915, and until such order was revoked or set aside by the said commission. The sixth clause of such order reads:

“Order 6. That defendant, Missouri Pacific Railway Company, and Benjamin P. Bush, Receiver, shall have the right at the end of one year from the 1st day of January, 1916, to file with the commission an account in detail showing the number of passengers carried and all receipts and expenditures arising from furnishing the ‘service for that period, and shall also have leave at that time to move that this order be set aside. That the commission shall retain jurisdiction of the case for the purpose of making such further orders as may be necessary.”

The evidence taken before the commission is not flush with facts upon either side as to the earnings of the Pullman car used in this service. The complainant proved the continuous service for nearly thirty years, and in addition proved that when the railway company was in fact competing against the Frisco line for passenger business from Joplin and Carthage to St. Louis, it got its share, but that of late no effort.had been made for such business, because of the much' better time made by the Frisco, over the present slower schedule of the Missouri Pacific Company. On page 3 of relator’s brief, its side of the controversy is thus stated :

‘ ‘ On part, of the railway company it was shown that the sleeper which was taken off was the property of the Pullman Company; that the latter company exacted six thousand dollars a year from the railway company for the use of each sleeper in the service, and if all of the sleepers in use did not average a return of six thousand dollars the difference had to be made up by the railway company. It was further shown that the sleeping car in controversy earned per trip during January, February, March and April, 1911, the following sums: $7.75, $9.32, $8.32 and $7.67, respectively, leaving a deficit to be paid the Pullman Company each trip of $8.69, $7.12, $8.12, and $8.77.”

These figures, however, must be explained. They are not the total earnings of the car. They only include Pullman service of passengers from St. Louis and points between St. Louis and Pleasant Hill, on the west-bound trip, where such passengers went beyond Pleasant Hill and toward Carthage or Joplin. To be explicit, if five passengérs at St. Louis-took this Pullman car (which for convenience we shall call the Joplin Pullman), one destined to Jefferson City, one to Sedalia, one to Warrensburg, one to Pleasant Hill, and one to either- Harrisonville, Butler, Nevada, Lamar, Carthage or Joplin, only the one going south from Pleasant Hill was counted, and the other four were not counted. So, too, as to the east-bound trip; if the passenger took this Joplin Pullman at any point south of Pleasant Hill, the Pullman fare was counted in these figures; but the car might be loaded to the brim at Pleasant Hill and points east, and their fares were not counted.

Under these rather unsatisfactory facts the commission made the provisional order stated above. Upon certiorari to the circuit court of Cole County, that order was sustained and affirmed, and by certiorari here it is sought to quash the judgment of said circuit court. Points urged (and additional facts if required) will be noted in the course of the opinion.

I. The first point urged, is that the Public Service Commission has no power to order sleeping car service from railroad companies. Relator concedes that such commission has the power to order an adequate number of trains and an adequate number of ears to accomodate the public, but draws the line on sleeping cars, on the theory that they are not necessities, but mere conveniences or luxuries.

The jurisdiction of the Commission over railroads is firmly fixed by the statute creating the Commission. The Act of 1913 (Sec. 16, Laws 1913, p. 565) says:

“The jurisdiction, supervision, powers and duties of the Public Service Commission herein created and established shall extend under this act:
“1. To all railroads within this State, and to all transportation of persons or property thereon, and to the person or corporation owning, leasing, operating or controlling the same.”

Note the term “transportation of persons” as used in the above grant of power. The law-makers did not leave the meaning of these words in doubt, nor did they leave them for judicial construction. They have defined their meaning by the act itself. Paragraph 24 of section 2 of the Act of 1913 (Laws 1913, p. 560) reads:

"24. The term ‘transportation of persons,’ when used in this act, includes every service in connection with or incidental to the safety, comfort or convenience of the person transported and the receipt, carriage and delivery of such person and his bag'gage.”

The italics are ours.

Under the definition of "transportation of persons” it is not meant the mere getting of them from one place to another,but there is included the elements of "comfort or convenience.” This definition eliminates the idea of mere necessity, although we are not saying that sleeping cars are not a public necessity in this age of the world. That matter we will discuss later. The present purpose is to show that the statutes themselves contemplate more than carriage merely.

Going further as to the jurisdiction or right of the commission to provide for adequate service, we have paragraph 2 of section 47, Act of 1913 (Laws 1913, p. 585), the pertinent part of which reads:

"Whenever the commission shall he of the opinion, after a hearing had upon its own motion or upon complaint, that the regulations, practices, equipollent, appliances or service of any such common earlier, railroad corporation or street railroad corporation in respect to transportation of persons or property within this State are unjust, unreasonable, unsafe, improper or inadequate, the commission shall determine the just, reasonable, safe, adequate and proper regulations, practices, equipment, appliances and service thereafter to be in force, to he observed and to he used in such transportation of persons and property and so fix and prescribe the same by order to be served upon every common carrier.”

Further the pertinent portions of section 49 of said act (Laws 1913, p. 588) read:

“If in the judgment of the commission, additional tracks, switches, terminals or terminal facilities, stations, motive power, or any other property, construction, apparatus, equipment, facilities or device for úse by any common carrier, railroad corporation or street railroad corporation in or in connection with the transportation of passengers or property ought reasonably to be provided, or any repairs or improvements to or changes in any thereof in use ought reasonably to be made, or any additions or changes in construction should reasonably be made thereto in order to promote the security or convenience of the public or employees, or in order to secure adequate service or facilities for the transportation of passengers or property, the commission shall, after a hearing, either on its own motion or after complaint, make and serve an order directing such repairs, improvements, changes or additions to be made within a reasonable time and in a manner to be specified therein. ’ ’

In all these quotations the italics are ours.

These, and even other portions of the Act of 1913 not quoted, clearly indicate that the commission is not only authorized to see that the railroads are equipped in such manner as will enable them to carry passengers from point to point in the State, but that they are so equipped as to furnish comfort and convenience in the “transportation of passengers.” We can’t go to common law rules, because they have been supplanted by the statute. We must go to the statute, and under its very terms we are forced to say that the commission under proper circumstances has the power to direct and order sleeping car service.

Even if the statutes granting the powers were not as broad as they are, yet in these days of business activities, it can be said that sleeping cars have passed the point of mere conveniences and reached the point of public necessities. We can’t measure public necessities by the old rules. What years ago were deemed only luxuries are today public necessities. Thus we have held that telephones in public offices are public necessities and must be paid for out of public funds. [Motley v. Pike County, 233 Mo. l. c. 46.]

What were mere luxuries years ago have by constant uses, practices and advanced business thought, become necessities of today. The idea is well expressed by the Public Service Commission of West Virginia in case of Public Service Commission v. Railroad, P. U. R. 1916-E, l. c. 364, whereat it is said:

“It is said that this proposed additional sleeper service is not a necessity, but only a convenience. That it is-not an absolute necessity is true. No sleeping car is. No dining or parlor car is. Our fathers had none of them. If they traveled at night they slept in their seat in the day coach. As for meals, they took their lunches with them, or got their meals at the places where the train stopped ‘twenty minutes for dinner’ or other meal. We can at this day get along without sleeping cars. We can travel as our fathers did. If there were no such cars everybody would be on a parity in that respect. Necessity and convenience are relative terms. What was a mere convenience a few years ago may now, in this age of telegraphs and telephones, become a practical necessity. The matter is affected by time, circumstances, custom, conditions and the state of society.”

Our statutes are much broader that the West Virginia statutes. By them the convenience of passengers as well as the absolute necessities may be considered. There is, therefore, nothing in the point made that the commission of Missouri is without authority under any circumstances to direct sleeping car service. Under a proper state of facts our Public Service ■ Commission is fully empowered to order sleeping car service. The only question is, do the facts in this case justify the conditional order made ? That question we take next.

II. The only serious question in this case is the sufficiency of the evidence, and when properly considered • we do not think that there can be a doubt about that point. The evidence for the complainant shows that this sleeping-car service was maintained for nearly thirty years. This is some evidence of its necessity. It will not be presumed that the railway company would for thirty long years continue the doing of an unnecessary act. No condition is shown that would change the necessity for this sleeping-car service, if there was such necessity, during those thirty years. The census reports, of which we take judicial cognizance, show an increase rather than a decrease in population in that territory. In Jasper County, under record in this case, we have Joplin with a population of 32,078; Webb City with 11,817; Carterville with 4,539, Carthage with 9,483 and Jasper with 664. In Barton County we have Lamar with 3,216. In Yernon there is Nevada with 7,175. In Bates County we have Butler with 2,894, and not in the record, but of which we take notice, Rich Hill with more, and Adrian with near 1000. In Cass County is Ilarrisonville with 1,947, and other smaller towns. All these on the line of this railway and all south of Pleasant Hill, and all affected by the discontinuance of the sleeping-car service.

The only thing shown by the railway is the sleeping-car earnings for the three months and eleven days just prior to a discontinuance of the service. Prom this showing it appears that the car was earning some $3000 less than the $6000 per year, which the railroad was paying for the car. The brief in this case admits that the car contract with the Pullman Car Company for service required the railroad to make all the sleeping-cars in use average $6000 per annum, but the contract did not require the railway company to make up the deficit on any particular car, if all the cars used, taken together, averaged $6000 per year. In our statement we have quoted the substance of this contract from the brief of the railway company.

It must be kept in mind that the railway company, although it was no doubt possessed of the facts, did not show the whole earnings of this Joplin sleeper. If going west this sleeper was used by passengers from any point between St. Louis and Pleasant Hill, no account was given of those earnings. So too on the eastern trip; if this car' was used by passengers getting on at Pleasant Hill or points east thereof no account was given of such earnings.

The showing made by complainant was sufficient to call from the railway company a clear showing as to the loss if any entailed by maintaining this service, and this the company has not undertaken to do. We do not mean to say that even if some loss had been, shown the order made would not be sustained, but what we do mean to say is, that the railway company should have shown the actual earnings of this car, 'and not contented itself with the meager showing made. Nor will a showing for a small fragment of time suffice.

Under the facts the commission was justifiable in making the order which was entered. This order required them to run such car for a year, and during such time keep an account of the full earnings of that particular car, and then gave the company, thus armed with all the facts, the right to file a motion for a change of the order. The order made, in view of all the facts, is a reasonable one, and should be upheld. If at the end of the year the full showing is such as to indicate that there should be a change in the order, we have no doubt that the commission will make a proper order.

III. But we had best notice another matter. From Pleasant Hill to Joplin is a branch line of the railway company. We do’ not understand the rule to be that the service upon these branch lines, must of necessity be self-sustaining, before the commission can compel the service, provided the service .is necessary for the “comfort or convenience” of the traveling public. Branch lines, when considered alone, often are not money-makers, but when considered as feeders to a main line, add to the general profit of the company. In other words, slight pecuniary loss on a given service, which service is demanded by the “comfort or convenience” of the public, will not render an order for such service bad, if the whole service on the railroad of that class and kind is profitable. In Atlantic Coast Line Railroad Co. v. North Carolina Corporation Commission, 206 U. S. 1, the syllabus, which fairly reflects the opinion, reads:

“It is within the power of a state railroad commission to compel a railroad company to make reasonable connections with other roads so as to promote the convenience of the traveling public, and an order requiring the running of an additional train for that purpose, if otherwise just and reasonable, is not inherently unjust and unreasonable because the running of such train will impose some pecuniary loss on the company.”

In State v. Railroad, 239 Mo. l. c. 234, this court said:

“Loss to. a railroad is no defense to a petition for a mandamus to compel obedience to such a law. [State to use v. Railroad, 83 Mo. 144, 150; Railroad v. Bristol, 151 U. S. 556; Railroad v. Ohio, 173 U. S. 285; Railroad v. Corporation Commission, 206 U. S. 1.]

So also in Railway v. Railroad Commission, 152 Wis. l. c. 673, it is said :

' “The evidence shows that to put on an extra local train each way daily would cost about $7000 per month and that the estimated receipts would not equal the expense. It is not shown, however, that the whole passenger revenue of the. road in this State is not ample to meet the additional expense with a fair margin of profit. But even if that were not so, if the service required is a reasonable one it is no answer to say that it would have to be performed at a financial loss. In Atlantic Coast Line R. Co. v. North Carolina Corp. Comm., 206 U. S. 1, 26, the court says: ‘Because as the primal duty of a carrier is to furnish adequate facilities to the public, that duty may well be compelled, although by doing so as an incident some pecuniary loss from rendering such service may result.’ This is reaffirmed in Mo. Pac. R. R. Co. v. Kansas, 216 U. S. 262. In determining what is reasonably adequate service the paramount factor is public need and convenience, modified no doubt by many other considerations, such as the size of the station, the.extent of the demand for transportation, as well as the reasonable cost of giving additional service.”

In Railway Co. v. Railroad Commission, 54 Colo. l. c. 93. it is said:

“The law imposes upon it- the duty of furnishing adequate facilities to the public on its entire system, not a part; and it cannot be excused from performing its full duty merely because, by ceasing to operate a part of its system, the net returns would be increased; so that it cannot be said under the facts, that requiring plaintiff in error to perform its duty to the public by furnishing an adequate service over its line between Denver and Leadville, although a pecuniary loss is entailed, is unreasonable or deprives it of any constitutional right, either Federal or State. [Mo. Pac. Ry. Co. v. Kansas, 216 U. S. 262; Atl. Coast Line R. R. Co. v. N. C. Corp. Com., 206 U. S. 1; Corporation Comm. v. Railroad, 137 N. C. 1.]
“In brief, under the facts of the case at bár, an order requiring a railroad company in the possession and enjoyment of its charter powers and privileges, to furnish a necessary service, does not, even though a compliance with the order entail a loss, deprive it of its property without due process of law, or compel it to devote its property and revenues to a public use without just compensation, for the obvious reason that such an order merely requires it to discharge its legal obligations. Of course, that a service ordered will entail a loss is a circumstance to consider in determining the reasonableness of the order; but a common carrier cannot successfully complain that a loss will thus be occasioned when it appears that the ordered service requires nothing more than necessary transportation facilities.”

This seems to be the general trend of modern authority. If as we have concluded, in this day of transportation, sleeping-car service is necessary for the “comfort or convenience” of the traveling public, then mere loss on one portion of such service on a branch line, would not of necessity invalidate an order for the service. Thé whole service of the particular kind and character must be considered, and not isolated portions of it. The fact that an isolated portion did not pay would only be one of many facts to be considered in determining the reasonableness of the order.

IV. Lastly it is urged that Mr. Bush, the receiver of the railway company, was never brought before the commission by proper notice. This question was raised for the first time in the motion for rehearing in the circuit court. It comes too late.

But beyond this the law determines this claim adversely to the railway company. Mr. Bush was included in the order made by the commission. After this the parties filed their motion for rehearing before the commission as by the law required. [Sec. 110, Laws 1913, p. 640.] That section provides, among other things, that: “No corporation or person or public utility shall in any court urge or rely on any ground not so set forth in said application. ’ ’

The point here urged was not made in the application for a rehearing before the commission. The clause was put into the law for a purpose. That purpose was to give the commission a fair chance to correct its own error. Had it been suggested that Mr. Bush was not properly before the commission, proper steps could have been taken by the commission. The railway company cannot rely upon this point now. The judgment of the circuit court should be and is affirmed.

All concur except Bond, J., who dissents.

PER CURIAM:

The foregoing opinion of Graves, P. J., in Division No. One is adopted as the opinion of the Court In Banc.

All concur, except Bond, J., who dissents and Williams, J., not sitting.


source: Caselaw Access Project

author: ROY, C. PER CURIAM:

license: Public Domain

text:
    JAMES ORCHARD v. LACLEDE LAND & IMPROVEMENT COMPANY, Appellant.
    Division Two,
    February 2, 1917.
    1. ORDER OF PUBLICATION: Different Number in Order and Suit. An order of publication differently numbered from tbe action in which judgment is rendered for taxes, and differing as to name of one of the defendants, is properly admitted in evidence in rebuttal to defendant’s claim under a tax sale and deed executed under the judgment, and justifies the court in finding that it was the only process issued against the only defendant named in both order and judgment, if no objection is made when it is offered that it was an order made in a different suit.
    2. -: Different Recitals in Judgment. A recital in the judgment of proper service of process upon a defendant in a tax suit must' yield to a recital in the order of publication, if the two conflict.
    3. —i-•: Wrongfully Naming One Defendant. A judgment for taxes is not to be held void, in a collateral attack to' quiet title, for that the order of publication to the defendants which rightfully named the one defendant who was the owner, wrongfully named another defendant. As to the defendant correctly named the judgment is not invalid because another defendant’s name was incorrectly given in the order. .
    4. -rDescription of Land. An order of publication in a tax suit which describes the land as “S. W. 4, sec. 22-31-2 W” is void, and a judgment based thereon is void. Under the statute (Sec. 1879, R. S. 1909) the letter “T” may stand for township, and the letter “R” for range; but to omit both the words and letters is to render the statute useless and meaningless.
    Appeal from Reynolds Circuit Court. — Now. E. M. Dearing, Judge.
    Affirmed.

      J. B. Daniel and Arthur T. Brewster for appellant.
    (1) The order of publication in suit No. 19 is in no way identified with the one upon which the judgment in case No. 90 is predicated. (2) The description of the land in the order of publication in tax suit No. 19' is sufficient. Sanzenbacher v. Sant huff, 220 Mo.. 283; State ex rel. v. (Vail, 120 Mo. 49; Miller v. Keaton, 236 Mo. 706. (3) The record of an order of’publication is not required by law and is not evidence of the contents of a published order. Davidson v. Land Co., 253 Mo. 231. (4) Where the juris•diction of a court is general it will be presumed to be acting within its jurisdiction until the reverse is shown. Lawson’s Presumptive Ev. (2 Ed.), pp. 29, 36. (5) An order of publication is sufficient to give the court jurisdiction of a defendant correctly named though it incorrectly names another defendant. , Miller v. Keaton, 236 Mo. 710.

      C. M. Bufará and S. A. Cunningham for respondent.
    (L) The recital of jurisdiction or of service of process contained in the judgment must be construed in connection with the whole record and may be overthrown by other recitals in the record of equal dignity and imparting equal verity, showing that the former recitals are untrue. Kunzi v. Hickman, 243 Mo. 118; Stark v. Kinchraber, 186 Mo. 647; Feurt v. Caster, 174 Mo. 303; Cloud v. Pierce City, 86 Mo. 357; Captain v. Trust Co., 177 S. W. 633. (2)TThe order of publication is as much a part of the record proper as the judgment itself, and if there is any conflict between the recitals in .the judgment as to the terms of the order and the order itself, the latter must control, for a recital of the order must yield to the order itself. Stewart v. Allison, 150 Mo. 346 ; Milner v. Shipley, 94 Mo. 106; Adams v. Cowles, 95 Mo. 507; Winningham v. Trueblood, 149 Mo. 584; Norton v. Reed, 253 Mo. 236. (3) In order to constitute constructive process by an order of publication not only must the order be made but it must be published in the manner required by law. Woodruff v. Lumber Co., 242 Mo. 381. (4) An order of publication is void when it fails to properly style the case by naming only the defendants not personally served and omitting the resident defendants. Yan Natta v. Real Estate Co., 221 Mo. 373. (5) The statute under which the land was sold for delinquent taxes, designates what abbreviations are allowed, and no others can be used except such as are set out in said statute. Sec. 6857, R. S. 1879; Akins v. Adams, 256 Mo. 10; O’Day v. McDaniel, 181 Mo. 534. (6) Where a case was tried by the court without a jury and no declarations of law were given, the judgment supported by any evidence or any theory of the case must be affirmed. Hanenkratt v. Brougham, 164 Mo. App. 110; G-riggs v. Bridgewater, 167 Mo. App. 382.; Bank v. Boyer, 161 Mo. App. 149. (7) A judgment for taxes, to be valid as against the land, must find that the defendants named in the suit were the owners of the land. Rothenberger v. G-arnett, 224 Mo. 191.
   ROY, C.

Defendant has appealed from a judgment against it in a suit to quiet title to the southwest quarter of section 22, township 31, range 2 west, in Reynolds County.

The plaintiff put in evidence a complete chain of title from the Government to himself, which showed that one Alonzo T. Slaight acquired the title on February 8, 1881, and that plaintiff acquired Slaight’s title in 1911.

The defendant put in evidence a sheriff’s deed purporting to convey the land to the defendant. It was dated November 29, 1887, and recited that it was made in pursuance of a sale of the land under an execution based on a judgment of the circuit court rendered on May 27,1887, in a suit against Alonzo T. Slaight a,nd Laclede Land & Improvement Company, for the taxes on said land for the year 1885.

The plaintiff put in evidence an order of publication, the first part of which is as follows:

‘ ‘ Order of Publication.
“Reynolds County Circuit Court, May term A. D. 1887. ' -
“In Vacation. February 17, 1887.
“State of Missouri, County of Reynolds — ss.
“In the Circuit Court of Reynolds County, To May term, 1887, No. 19.
“The State of Missouri, at the relation and to the use of H. C. Stevens, Collector of the Revenue of Reynolds County, Missouri, Plaintiff, against Alonzo T. Slaight and Ozark Land Company, and all unknown persons interested in the real estate herein described, defendants.”

That order was directed to Alonzo T. Slaight as a non-resident of the State, notifying him of the commencement of said suit. It stated the object and general nature of the suit thus: “to enforce the lien of the State of Missouri for back taxes due for the year 1885 on the following real estate belonging to said defendants, to-wit, Sw. 4, sec. 22-31-2W.”

The defendant objected to that evidence, but stated no grounds for such objection. It was overruled.

The judgment was read in evidence, the first part of which is as follows:

“ The State of Missouri, at the relation and to the use of H. C. Stevens, Collector of the Revenue of Reynolds County, in the State of Missouri, Plaintiff, vs. Alonzo Slaight and Laclede Land & Improvement Company, Defendant.
No. 90.
Action to Enforce Payment of Taxes. ,
“Now at this day this cause coming on to he heard, comes the plaintiff by attorneys and Laclede Land & Improvement Company by attorney also comes and the other defendants, although duly served with legal process herein comes not, but makes default, and it appearing to the court that this is.an action for the enforcement of the lien for back taxes due the State and county aforesaid, on the following real estate in Reynolds County in the State of Missouri, to-wit: S. W. 1/4, sec. 22, Twp. 31, R. 2 W.”

I. Appellant insists that the order of publication read in evidence was in case No. 19, while the judgment was rendered in case No. 90, and that, for ^at reason, such order of publication's not material to the issues in this case and cannot be used to impeach the recital of service of process contained in the record of the judgment under which the land was sold.

It must be conceded that the order of publication appears to be numbered differently from the judgment, and they differ as to the name of one of the defendants. When that order of publication was offered in evidence there was no objection made, on the ground that it was an order made in a different suit. If such an objection had been made the discrepancy in the numbering probably could have been explained. Had there been a proper order of publication in the case in which the judgment for taxes was rendered, the defendant would have been prompt to discover it and put it in evidence. The failure to do so, under the circumstances, justified the trial court in finding that the order of publication in evidence was the only process that had been issued against Slaight' in the suit in which the judgment put in evidence was rendered.

II. The judgment recites the proper service of process on Slaight, but that recital must yield to the order of publication read in evidence. Where the two are conflict the latter must control. [Stewart v. Allison, 150 Mo. 343; Norton v. Reed, 253 Mo. 236.]

III. Appellant contends that the order ' of publication is void as against Alonzo T. Slaight because the name of the corporation defendant is different in the order of publication from what it is in the judgment. Van Natta v. Harroun Real Estate Co., 221 Mo. 373, is cited. In that case the name of one of the two defendants was left out of the order ■ of publication. Both defendants made a special appearance in the case and moved to quash the process in the ease for several reasons, none of which covered the point now under discussion. That point was not covered by the briefs of counsel in that case; yet it was there said of the order of publication:

“It was also void for the further neason that it did not properly style the case, the name of the Harroun Real Estate Company, one of the parties defendant, having been omittéd, and represented that W. A. Moses was the only party defendant. The order of publication being void, and there being no personal service on defendant Moses, the'court had no jurisdiction as to him.”

There the attack on the order of publication was made in-the same suit in which it was issued, and not collaterally as here. The courts are much more ready to sustain an objection to process or its service where the objection is made as in that case. Without criticising or approving that case, we do not consider it authority here. The defendant Slaight was named both in the process and in the' judgment. We presume that he was named in the petition. He was notified that a suit was pending against him for taxes on real estate. Hnder the law a judgment against him would bind all his interest in the land independently of whether any one else had any interest in it. Our statute, section 1770, does not require that the names of all the parties to the suit shall be shown in the order of publication. If there are cases where it is necessary, from the nature of the proceeding, that the names of the parties be shown in the order of publication, this is certainly not one of them. Brenen v. North, 39 N. Y. S. 975, is the only case out of .this State directly in point. It was there held in a collateral attack that a decree of foreclosure of a mortgage was not void as against a defendant who was notified by publication, though in that publication the names of some of the defendants were omitted. This case is different from that, because of the fact that the name of the Ozark Land Company was substituted for that of the other corporation defendant. But that fact did not invalidate the process so far as Slaight was concerned, however it might affect the process as to the other defendants.

IY. The order of publication is void because of its failure to properly describe the land- Section 6857, Revised Statutes 1879, now section 11520, provides that in tax proceedings the letter T may stand for township, and the letter R for range. To hold that a description in which those letters are omitted and nothing substituted for them is sufficient, would be equivalent to saying that the statute is useless and meaningless. This exact point has been before this court only once before in Akins v. Adams, 256 Mo. 2. In that case there was an intimation that the 'description was considered insufficient, but the case went off on another proposition. It was there said that the statute “is founded on prevailing usages in this State in relation to the use of customary numerals and abbreviations in land descriptions.” Thus it is seen that the use of those letters to designate the township and range is not only customary, but is recognized by the statute. The description in the order of publication bere involved is not good under the custom nor under the statute, nor for any other reason.

The judgment is affirmed.

White, G., concurs.

PER CURIAM:

The foregoing opinion of Roy, 0., is adopted as the opinion of the court.

All of the judges concur.


author: FARIS, J.

text:
    HAM & HAM LEAD AND ZINC INVESTMENT COMPANY, Appellant, v. CATHERINE LEAD COMPANY.
    Division Two,
    February 2, 1917.
    1. TRIAL: New Trial on All Counts After Adverse Verdict on Some: Distinct jCauses. Where plaintiff sues defendant in two or more counts Ud separate and distinct causes of action, and recovers on the first, but loses on the others and files no motion for a new trial on them, but a new trial is granted defendant on the first count, plaintiff cannot have the issues made in the other counts again submitted to a jury. If each count states a distinct cause of action the issues contained in each are foreclosed by an adverse verdict thereon unless he files a motion for a new trial thereon.
    2. -: -: Rights Arising Out of One Transaction. But where plaintiff sued to recover commissions for the sale of mining stock, and the first count of his petition was bottomed on contract and the third was for quantum meruit, and the jury returned a verdict for him on the first count for the full amount he had sued for, but a verdict for defendant on the third count, and plaintiff filed no motion for a new trial on the third count, but defendant asked and obtained a new trial on the first count, plaintiff did not lose the right to try out, on a subsequent trial, the issue of quantum meruit on the third count. Since there is only, one cause of action, the granting of a new trial to defendant on the first count served to give plaintiff a right to a trial on the third count though he had not moved for a new trial on that count and no contract is shown upon which a verdict on the first count can stand.

      3. VERDICT FOR RIGHT PARTY. A judgment for defendant will not be affirmed on appeal on tbe theory that it is a righteous one and for the right party, where plaintiff has erroneously been denied a trial upon one count of his petition.
    4. SALES: Right to Commission: No Contract. If defendant lead company, knowing that plaintiff was endeavoring to sell its mine, acquiesced therein, encouraged and furthered his efforts in that behalf, and accepted the offer of and sold to a purchaser whom plaintiff was the sole efficient producing actor in furnishing to defendant, upon terms and conditions which defendant knowingly allowed, or induced plaintiff to offer to such purchaser, then the law implies a promise on the part of the defendant to pay plaintiff as much as his services, as the efficient producing cause in so bringing about such sale, were worth.
    Appeal from St. Louis City Circuit Court. — Hon-. Leo S. Rassieur, Judge.
    Reversed and remanded.

      Joseph Wheless for appellant.
    Where the same cause of action is sued on in different counts, and judgment is for plaintiff on one count and for defendant on the other, “the reversal of the judgment, without qualifying or limiting the scope of the order of reversal, and the return of the cause to be again tried, reversed the entire judgment and opened the case for a retrial of the entire controversy.” Wollman v. Loewen, 108 Mo. App. 581; Bottling Co. v. Exposition Co., 240 Mo. 634; Gann v. Mfg. Co., 129 Mo. App. 425; Railroad v. Wyatt, 223 Mo. 355; Deiermann v. Bag Co., 144 Mo. App. 474.

      Collins, Barker & Britton for respondent.
    (1) Where, a suit is brought in two counts, one on contract and the other on quantum meruit and both counts are submitted to the jury and verdict rendered for plaintiff on the count in contract, and expressly rendered for the defendánt on the count in quantum meruit, and motion is filed by the defendant, asking for a new trial on the judgment rendered on count in contract, and defendant does not ask for a rehearing on the verdict against it on the count in quantum, meruit, and defendant’s motion for a new trial is sustained, from which order plaintiff appeals without reference to the count on quantum meruit, on new trial, plaintiff is barred as to quantum meruit count. Appellant requested the jury to find for it on count in contract; the jury so found; appellant is bound thereby. Appellant also accepted the jury’s finding and by this and its subsequent acts, has elected to stand on contract count. Wonderly v. Haynes, 186 Mo. App. 75; Cramer v. Barmon, 193 Mo. 327; Woilman v. Loewen, 108 Mo. App. 581; Gann v. Mfg. Co., 129 Mo. App. 425; Phillips v. Mfg. Co., 129 Mo. App. 403; Hoyle v. Farquharson, 80 Mo. 377; Downing v. Railroad, 70 Mo. App. 657; Marquis v. Clark, 64 Mo. 601; Courtney v. Kneib, 131 Mo. App. .209; Taylor v. Short, 38 Mo. App. 34; Sideway v. Land Co., 163 Mo. 342; Scott v. Parkview Co., 241 Mo. 112. (2) When, on consideration of the. whole record, the judgment is plainly right and is for the right party, the court will not reverse for errors of law which do not affect the merits. Wear v. McCorkle, 1 Mo. 588; Putman v. Boyer, 173 Mo. App. 394; Yogg v. Mo. Pac. Ry. Co., 138 Mo. 172. There is nothing in this record, or in the record of the previous trial that would justify submitting •the count on quantum meruit to the jury.
   FARIS, J.

This is -an action brought by plaintiff in the circuit court of the city of St. Louis for the recovery of certain commissions which it alleges to be due it for the sale of the mining property of defendant. Plaintiff being by the court coerced into a nonsuit, moved to set the same aside, and when this motion was overruled appealed here in due form.

The case has been here before, the instant one being the second appeal herein. The facts necessary to a full understanding of the case, and which may not be pertinent solely to the instant appeal, will be found reported under the identical title in 251 Mo. 721, to which reference is made. Such other facts as are peculiarly pertinent to the instant case and incidentally to the former one, run substantially thus:

Plaintiff below, wbo is appellant here, had, as it deemed, one cause of action against defendant. Therefor it sued in three counts, designated as its first, second and third count, respectively. The second count was voluntarily dismissed by plaintiff, so we need not concern ourselves here about it. In the former trial between the parties (Ham & Ham L. & Z. Co. v. Catherine Lead Co., 251 Mo. 721), plaintiff had a verdict on its first count (which count it bottomed upon a specific written contract) in its favor, and a verdict on the third count (which was bottomed on quantum meruit) against it. Defendant thereupon filed its motion for a new trial upon the first count, praying that the verdict be set aside and a new trial granted to it. Plaintiff having gotten through the verdict on the first count all that it could possibly have gotten by its suit, filed nothing, but acquiesced in the jury’s verdict in its favor on the said first count, and likewise (so far as then concerns the taking of any affirmative action on its part) acquiesced in the jury’s verdict on the third count.

. The trial court upon defendant’s motion for a new trial upon the verdict against it on said first count, sustained the same; granted to defendant such new trial thereon and from the order granting said new trial plaintiff appealed. Upon a hearing here, we in all things sustained the action of the court nisi (Ham & Ham L. & Z. Co. v. Catherine Lead Co., supra), affirmed the case and remanded it for the new trial which the trial court had granted. Upon the coming on of such new trial no new issues seem in anywise to have been raised by amendment to the pleadings, at least, res adjudicata was not pleaded; but upon the trial, and on plaintiff’s offering to read the third count to the jury, defendant objected for that “the verdict of the jury on the said count in favor of the defendant rendered on the former trial of the case constituted a bar thereto.” This objection was sustained and plaintiff excepted.

One of the first questions we meet here touches the-correctness of the action of the trial court in ruling that the verdict of the jury against plaintiff upon the count on a quantum meruit, is "a bar to a trial upon that count. Of course, if these counts had been upon separate and distinct causes of action, there would he no ground for question or quibble. The verdict in such case upon the facts present would have been an impassable bar to the maintenance by plaintiff here of any further action on this count. This is so self-evident as to need no citation of authority. But the question before us is wholly different. When plaintiff got its verdict in the first trial upon the first count- of its petition it had then got all it was entitled to, for it' had but, one single cause of action, which, ex abundanti cautela, it had stated in two different ways. So long as plaintiff had a verdict on the first count it could not have one on the third count, for it was entitled (granting that it was entitled to anything) to but one relief, which by the verdict in its favor on the first count it had gotten in full. But defendant, not satisfied with the verdict against it, moved specifically for a new trial on the verdict against it on the first count; it was aw&rded that new trial and plaintiff appealed. When that new trial was found by us to have been properly granted, did it go to the whole case, or only to the verdict on the first count? In short, did it serve to grant to plaintiff a new trial on the third count, though it ha.d not moved for such new trial. We think it did, though the precise point is seemingly of first impression in this jurisdiction. The case of Cramer v. Barmon, 193 Mo. 327, is called to our attention as upholding the view that plaintiff should have taken some affirmative action indicating that it did not acquiesce in the jury’s verdict against it on the third count, otherwise that verdict stands and bars a re-trial thereon. The latter case is not in point, and if it were in point it has been overruled,' in a case however wherein its lack ■of appositeness was judicially conceded. [Star Bottling Co. v. Exposition Co., 240 Mo. 634.]

The Barmon case, supra, was an action in two counts for false imprisonment and malicious prosecution, respectively: Below, -defendant got a court-directed verdict in his favor on the first count (which prayed for damages in the snm of $5000; a sum sufficient then, to give us jurisdiction upon appeal); while upon a trial the jury-found for plaintiff on the second count for $1500. Both parties moved for new trials upon the findings and verdicts against them on the two counts, respectively. The court, nisi sustained the motion of defendant; but overruled that of plaintiff and the latter appealed. The case rode off and out of this court on the question of jurisdiction, since we held that only the sum of $1500 was involved and not the sum of $5000, the amount prayed for in the count on which plaintiff lost by a directed verdict, and that the jurisdiction lay therefore with the Court of Appeals.

It is true that this Barrnon case contains dicta leaning in principle toward the view that, absent an appeal directly from the action of the court overruling plaintiff’s motion for a new trial on the first count, the court-directed verdict thereon was final. If that case had gotten back here upon a second appeal then the facts would have been a little more apposite. As it stands it is not so clearly in point as to be very persuasive against the manifest principle to the contrary, even if it has not been overruléd.

The late case of Bottling Co. v. Exposition Co., 240 Mo. 634, is likewise in point only upon somewhat remote principle. There piaintiff sued defendant, and defendant interposed, among other things defensive, a counterclaim. Upon a trial had both parties moved for a new trial. The motion of defendant for a new trial was overruled; but that of plaintiff was sustained and defendant therein appealed; held that both parties got a new trial when both asked therefor, though the new trial actually granted was granted upon plaintiff’s motion and not upon defendant’s motion, the latter being overruled. It will be seen that this case is not in point upon the facts, though apposite upon the principle involved, and upon one view going much farther than we are required to go in the instant case.

The case of Hoyle v. Farquharson, 80 Mo. 377, so far as we can gather from the meager statement of facts therein, was an action in two or more counts for separate and distinct causes of 'action, and not as in the instant case, merely two counts for the identical cause óf action. If we correctly understand the facts in the Hoyle case it was correctly ruled, hut it has no bearing upon the question now here vexing us. Likewise, the case of Scott v. Parkview Realty Co., 341 Mo. 112, dealt with separate causes of action against the same deféndant, pleaded in separate counts, and of course has no relevancy whatever to the instant case. For where a plaintiff sues a defendant in two or more counts for separate and distinct causes of action, the joinder is in effect a joinder for economy of costs and convenience’s sake of several suits in one, and manifestly if a party be cast in one of these suits, he must take affirmative action to get relief, or forever be concluded.

But it would be a harshly technical and stilted rule indeed, which after a party had gotten upon one theory (afterwards detérmined to be a procedurally erroneous one) all possible .relief to which he was entitled, would yet compel him to carry with him affirmatively throughout an appeal another and jury-rejected theory of recovery, or else lose his possibly righteous cause of action wholly. Plaintiff here was (at most) entitled to but one commission, whether it got it upon its count on an express contract, or upon its count on a quantum meruit, concerned it little, as a question of abstract justice, however important it might be upon what has been cynically denominated the “sporting theory of the law.” When the jury brought in a verdict in plaintiff’s favor on the theory of an express contract, naturally, having but a single cause of action, its right to recover on a quamtum, meruit (if the jury’s verdict was right) was lost. Plaintiff could not appeal, for it was not aggrieved. It became aggrieved only when the court nisi granted to defendant a new trial on the first count; when the learned trial court deeming a recovery not warranted upon the first count, set aside that recovery, plaintiff was for the first time aggrieved by the court’s action; it had not been so aggrieved (for the reason stated, to-wit, that it had gotten all to which it was in any view entitled) by the jury’s action. It may well be that plaintiff never became aggrieved till long after tbe time had elapsed within which it was permitted by law to file a motion for a new trial. In fact, the record npon the former appeal discloses that almost two months passed after the trial before the defendant’s motion for a new trial npon the first count was sustained. Naturally, no complaint was made in that motion by defendant, for that the jury’s verdict on the third count was erroneous. From the action of the court in sustaining that motion plaintiff appealed. When, in what way, and by what recognized procedure could plaintiff upon his first appeal have either raised, or brought up to us for review the jury’s action in finding against him on the third count. A somewhat analogous, if not identical situation upon principle was presented in the case of Turner v. Anderson, 236 Mo. 523. It is true respondents in the Turner case urged here that error had been committed against them below. Even upon appellants’ sole appeal we agreed with respondents and reversed the case for a new trial upon a theory rejected below. Respondents there had not appealed, for they had won below and consequently were not aggrieved. They had won on a wrong theory, however. Because of this we sent the case back to be retried upon the right theory, which, as stated, had been rejected below and eliminated by an instruction. So, the urging of the error here by those who had not appealed because they were not£ £ aggrieved, ’ ’ in no wise served to save the point or help the situation. For there is no place in appellate procedure whereat a respondent, having won all he asked for below, may preserve an error for review here. If such error is not preserved by abstract justice dehors a respondent’s brief, it cannot be kept alive by futilely printing it therein. Since this is a court wherein upon appeals alone errors are reviewed, the attempted saving of the point by respondents in the Turner case in no material way serves to distinguish that case from the instant one.

It follows that the learned court nisi erred in sustaining the objection of defendant tó the third count.

II. We are urged to affirm this case, however, because the judgment is said by respondent to.be righteous and for the right party. This may well be true, and we may even concede that upon the record before 118 this is so, but plaintiff was not required to offer proof upon á count that the court had stricken out. It was not required to make out a case by its evidence when the court nisi in effect had said no such case was pending, and it has saved its exception to that ruling.'

III. Other matters, settled upon the former appeal, are again urged upon our attention with much vehemence, and seemingly with some misunderstanding, or disregard, of what we said in our former opinion; but we think we need not lengthen' this opinion by discussing them. We cannot make it too plain that no recovery can be had against this defendant upon the alleged written contract set out in our former opinion at pages 727 and 728 thereof. If a recovery be possible (touching which we specifically refrain from giving an opinion, because there is, not before us any sufficient evidence from which to form an opinion), such recovery must needs be along the theory of quantum meruit. If defendant knowing that plaintiff was endeavoring to sell its mine, acquiesced in, encouraged and furthered its efforts in that behalf, and accepted the offer of, and sold to a purchaser whom plaintiff was the sole efficient producing actor' in furnishing to defendant, upon terms .and conditions which defendant knowingly allowed, or induced plaintiff to offer to such purchaser, then the law would imply a promise on the part of defendant to pay plaintiff as much as its services as the efficient producing cause in so bringing about such sale were reasonably worth. [Crain v. Miles, 154 Mo. App. l. c. 348; Gelatt v. Ridge, 117 Mo. l. c. 561.]

It follows that for the error in sustaining the objection to the third count, this case must be reversed and remanded. Let this be done.

All concur.


text:
    FANNIE E. CHAPMAN, Appellant, v. FRED E. CHAPMAN and WALTER CHAPMAN.
    Division Two,
    February 2, 1917.
    1. JURISDICTION: Divorce. Jurisdiction to hear and determine suits for divorce and alimony in this State depends upon and is limited by statute.
    2. DIVORCE AND ALIMONY: Law Governing. The action for divorce and alimony, the defenses thereto and the proceedings thereunder, are, as far as suited to the present day situation, controlled by the law of the ecclesiastical courts of England (which is, common law with us) as modified, changed, or, in some matters, supplanted by our statutes. ,
    3. -: Action at Law. A suit for divorce and alimony is an action at law. The fact that the court in the progress of the trial may be called upon, incidentally, to decide collateral questions of equity jurisprudence does not convert the suit into one in equity. Nor does the fact that the trial is without a jury, nor the fact that the provision as to the sequestration of property is still in the statute (by oversight kept in the statute when the Territorial Act of 1807 was revised in 1855), make the proceeding a suit in equity.
    4. -: Execution Equal to Sequestration. Whether or not any vitality is left in the statutory provision for sequestration of property in a suit for divorce and alimony (Sec. 2375, R. S, 1909), it can be of no service in a case in which the defendant is brought into court by publication and has real estate in this State subject to execution, for in such case an execution is as far-reaching and valuable as sequestration.
    5. -: Sale of Property Upon Constructive Notice. There is no law in this State authorizing a proceeding against defendant’s property for alimony on constructive service of process. The State has never exercised the power it possesses in that respect, and the courts cannot exercise it until it is given to them by law. Whatever allegations the petition for divorce and alimony may contain, even though it describes particular real estate, asks that it be sequestered and the judgment for alimony be made a special lien thereon and plaintiff awarded special execution against it, and those allegations are included in the published order of publication, no such judgment can be rendered on constructive notice.
    6. -: -: Lien Prior to Judgment. A writ of sequestration, even though the statute be not void, cannot issue until after judgment for alimony is obtained. Prior to such judgment plaintiff is not entitled to any lien against defendant’s property for the amount of money to be awarded as alimony, nor to “any lawful right, claim or demand to or against” any of his property described in her petition. The court can only render judgment for money as alimony; it is not authorized by statute to make any order or decree in reference to any specific property.
    7. -: -: -Equitable Right to Subject Assets to Judgment. Wherever the law gives a certain remedy against legal assets (that is, assets which can be reached by the ordinary processes of courts of law), then equity gives similar relief against equitable assets which are beyond the reach of legal process. But it is a perversion of the rule to suppose that equity gives a remedy for anything as against equitable assets when the law gives none for the same thing as against legal assets.
    8. -:-: Proceeding in Rem. The statutes do not authorize a proceeding in rem against defendant’s property to satisfy a judgment for alimony in a divorce proceeding obtained on constructive service of process, either at law or equity.
    Appeal from St. Louis City Circuit Court. — Ho». George II. Shields, Judge.
    Abpirmed.

      Henry H. Oberschelp for appellant.
    The trial court erred in not awarding alimony and rendering judgment therefor against the real estate set forth in the petition and publication. (1) If a defendant is not personally served and does not enter a voluntary appearance, a personal judgment cannot be rendered. Nevertheless, as the State has control over the marriage status of its inhabitants and also over property within its boundaries, in a suit for divorce and alimony, based on service by publication, the court may acquire jurisdiction to render a judgment in rem not only as to the marriage status, dissolving it, but also as to the property within the State, subjecting it to alimony award of the court, if the proper foundation is laid by the pleadings and the¡ process. Wesner v. O’Brien, 56 Kan. 724; Harshberger v. Harshberger, 26 Iowa, 503; Benner v. Benner, 63 Ohio St. 220; Hanscom v. Hanscom, 6 Colo. App. 97; Pennoyer v. Neff, 95 U. S. 714;- Moss v. Fitch, 212 Mo. 498; Ellison v. Martin, 53 Mo. 578. (2) In suits for divorce and alimony based on service by publication, in considering tbe extent of tbe court’s jurisdiction in rendering a judgment in rem, there are two distinct res to be considered; one the marriage status to be dissolved; the other the husband’s-property within the State sought to be subjected to the alimony award of the court. Oases under point one. (3) • Jurisdiction as to these separate res depends mainly upon the allegations in the petition and order of publication. If both set forth the marriage and prayer for its dissolution, the court acquires jurisdiction over the marriage status. But for the court also to acquire jurisdiction over the property to be subjected to the alimony award, both must also set forth the husband’s ownership of certain real estate in the State, fully describe the same with prayer to establish and enforce alimony award against said property. Cases under point one. (4) While this precise question has never been presented to the appellate courts of this State, yet the Supreme Court and this Court of Appeals have clearly indicated that if it were they would award alimony and enforce it against the thus described real estate. Moss v. Fitch, 212 Mo. 498; Ellison v. Martin, 53 Mo. 578; Elvins v. Elvins, 176 Mo. App. 645. (5) Wherever husband’s property within a State has thus been brought under the control of the court in suits for divorce and alimony, throughout the United States, according to the published decision, alimony has always been awarded and enforced as a special judgment in rem against the described property. Wesner v. O’Brien, 56 Kan. 724; Harshberger v. Harshberger, 26 Iowa, 503; Benner v. Benner, 63 Ohio St. 220; Hanscom v. Hánscom, 6 Colo. App. 97. (6) The sections of the Eevised Statutes under the heading Divorce and Alimony, sections 2370-2381, contain no provision for process. Any judgment on constructive service for its validity as to the divorce as well as to' the alimony depends upon publication in accordance with section 1770 et seq. Sec. 1770, E. S. 1909, authorized the publication to dissolve the marriage, as this is a suit “in divorce,” and it likewise authorized the publication for the purpose of rendering a judgment in rem for alimony against the property mentioned, as it may be regarded as enforcement of a lien, and most certainly is an action which has for its “immediate object the enforcement or establishment of a lawful right, claim or demand to or against any real or personal property within the jurisdiction of the court.” Benner ,v. Benner, 63 Ohio St.' 226. (.7) As property of the husband has been brought under the control of the court by the pleadings and process, and the evidence showed and the court found it to belong to the husband, it was the duty as well as the right of the court not only to grant divorce but also to award alimony and enforce the same against said property. Sec. 2375, B. S. 1909.
   ROY, C.

Plaintiff sued for divorce and alimony. The trial court granted the divorce, but refused the alimony. She appealed to the St. Louis Court of Appeals, where, in an opinion by Allen, J., the judgment was reversed and the cause remanded. Beynolds, P. J., filed a dissenting opinion, and deemed the majority opinion in conflict with Moss v. Fitch, 212 Mo. 484, and State ex rel. v. Blair, 238 Mo. 132. The cause was accordingly certified to this court. Both the opinions in the Court of Appeals and that of Judge Shields of the trial court are found in 185 S. W. 221.

The suit was begun September 1, 1914. Successive writs of summons were returned “not'found.”

On August 5, 1915, she filed an amended petition in which Walter Chapman, a brother of the original defendant, was made a party defendant. It alleged the necessary residence of the plaintiff in the city of St. Louis, and also alleged indignities, vagrancy, desertion and failure to support as the grounds for divorce. It also alleged that she was without means of support; that defendant purchased and paid for two pieces of real estate therein described, one in the city and the other in the county of St. Louis, and had the title thereto put in the defendant Walter Chapman, who paid nothing therefor, and who was holding the title in trust for Fred-E. Chapman; that said Fred E. Chapman had absconded and absented himself from his usual place of abode in this State, and had concealed himself so that the ordinary process of the law could not be served upon him; that defendant Walter Chapman was a non-resident of the State, and could not be served in this State in the manner prescribed by law. There was no allegation that the title to the land was put in Walter .Chapman in fraud of plaintiff’s rights. The prayer for relief was as follows:

“Plaintiff therefore prays for an order of publication against both defendants and that plaintiff be divorced from the bonds of matrimony contracted as aforesaid with the defendant, Fred E. Chapman, and that the •court will 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 real 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 encumbering or injuring said property, and that plaintiff be restored to her former name, Fannie P. Price, and make such further orders and judgments touching the premises as may be proper.”

There was an order of publication, which was duly published, and which recited all the facts stated in the petition including the description of the real estate and the prayer for relief as made in the petition.

Both defendants made default. The evidence in every respect supported the allegations of the petition. The plaintiff’s evidence was a pitiful narration of the brutal treatment, neglect and desertion of plaintiff by her husband. The evidence showed each of the properties to be worth something over $4000, with an encumbrance of $2000 on each, and that the title was 'put in Walter Chapman prior to the marriage of plaintiff with Fred E. Chapman. The trial court found that the property belonged to Fred E. Chapman, and gave plaintiff a divorce, but refused a judgment for alimony, on the ground that the court had no jurisdiction on a constructive service to render a judgment for alimony.

The fact that the able jurists, including the trial judge, who have passed on this case are equally and radically ’ divided prompts us to proceed with extreme caution.

It should be conceded that the jurisdiction of the courts in this State to hear and .determine suits for divorce and alimony depends upon and is the statutes. [Doyle v. Doyle, 26 Mo. 545; McIntire v. McIntire, 80 Mo. 470; State ex rel. v. Grimm, 239 Mo. 340.]

II. On the other hand, the action for divorce and alimony, the defenses thereto, and the proceedings therein, are, as far as suited to our day, and situation, controlled by the law of the English ecclesiastical courts (common law with us) as modified, changed, or, in some matters, supplanted by our statutes.

In Stokes v. Stokes, 1 Mo. 320, it was said: “The proceeding in this case is not a common law or chancery proceeding, but is a proceeding sui generis, founded on the statute. But as the statute makes use of terms used in the ecclesiastical' courts, where alone divorces are prosecuted in England, we think the rules of that court should govern, as far as they may be applicable to our institutions in law.”

In Twyman v. Twyman, 27 Mo. 383, Scott, J., who had then recently written the Doyle case, supra, held that condonation would defeat the action for divorce. The doctrine as to condonation comes from the ecclesiastical law (1 Bishop on Marriage and Divorce, p. 129), and not from our statute.

In State ex rel. v. St. Louis Court of Appeals, 99 Mo. 216, it was said: “Payment of such alimony may undoubtedly be enforced by execution and sequestration of property. But the power of the court does not end here. Though we have no ecclesiastical courts, still original jurisdiction in divorce matters is conferred upon the circuit courts; and since we have adopted the common law we have also adopted the English practice, so far as it relates to the substantial rights of the parties, except as the common law is modified by statute. [Morton v. Morton, 33 Mo. 614; Waters v. Waters, 49 Mo. 385; Crews v. Mooney, 74 Mo. 26; 1 Bishop on Marriage and Divorce (6 Ed.), sec. 86.] Taking away privileges in the cause is sometimes resorted to to enforce payment of alimony awarded pending the litigation. [2 Bishop on Mar. & Div. (6 Ed.), sec. 498; 1 Am. & Eng. Encv. Law, 485-6; Walker v. Walker, 20 Hun, 400.] It is said that the failure of the husband to pay alimony will in extreme cases only justify the court in striking out his answer; hut when he is the plaintiff his failure or refusal to obey such an order will warrant the dismissal of the cause.”

This court in In re Gladys Morgan, 117 Mo. 249, said: “The circuit court exercising ecclesiastical powers in divorce proceedings is governed, as to the substantial rights of the parties, by the common-law practice in such cases, except as modified by statute law.”

Mangels v. Mangels, 6 Mo. App. 481, did not hold that divorce is a strictly statutory proceeding, hut did say, l. c. 486, that the ecclesiastical law should he followed, ■“having regard, of course, to the altered conditions of things here, the spirit of our laws, and any modifications introduced by statute.”

In Keller v. St. Louis, 152 Mo. 596, the plaintiff sued as the mother of a minor child for personal injuries to the child. The parents of the child had been divorced by a decree which gave the mother the “care and custody” of the child, saying nothing about its maintenance. It was held that as the duty of maintenance was on the father, he alone could sue for injuries to the child. This court then said:

“The statute provides that ‘When a divorce shall he adjudged, the court shall make such order touching the alimony and maintenance of the wife, and the care, custody and maintenance of the children, or any of them, as from the circumstances of the parties and the nature of the case, shall he reasonable.’ [R. S. 1889, sec. 4505.] Divorce as known to our law is the creature of statute, and the power the court has over the rights and liabilities of the husband and wife is to be measured by the terms of the statute. In the decree in this instance, no order was made ‘touching the maintenance of the children.’ The order made was limited to the ‘care and custody’ .of the children, which were awarded to the plaintiff. So far as this decree is concerned, the duty of maintenance and the correlative right to the service of the children were left just where they were before the decree was entered, unless the order transferring the right of the husbands to the care and custody of the children, to the wife, had the effect, ex vi termini, of transferring, to her, his duty of maintenance, with its reciprocal right to the services of the children.”

With all due respect, we suggest that though the statute was well applied to the facts in that case, yet, in so far as the language there used was broader than the facts called for, it was obiter dictum, and not in accordance with the well recognized law in this State. The same may be said of Creasey v. Creasey, 175 Mo. App. l. c. 241, where it was said: “Divorce, with its incidents, is, in our State, entirely a statutory proceeding.” No authorities are cited in either of those cases.

III. It follows as a necessary result from what is said above, that a proceeding for divorce and ah'mony ^ an actioi:i IawJ nnless our statutes have in some particular made it a proceeding in equity.

The first legislation in Missouri concerning divorce and alimony was the Act of May 13, 1807 (1 Ter. Laws, page 90). It allowed a jury trial at the request of either party. The Revised Statutes of 1825, p. 330, sec. 3, provided :

“Be it further enacted, That the circuit court sitting as a court of chancery, shall have jurisdiction in all causes of divorce and alimony, or maintenance, by this act allowed; and the like process, practice and proceedings shall be had and pursued in all causes as are usually had and pursued in other causes on the equity side of said court, except that the answer of the defendant shall not be under oath. ’ ’

Section 6 of that revisory act provided for the rendition of the judgment for divorce and alimony, for the requirement of security for the payment of the alimony, for an execution to collect the same and for the enforcement of the judgment by the sequestration of property. That section was in all essentials the same as our present section 2375.

In the revision of 185-5 (R. S. 1855, p. 663, sec. 4), the provision that the suit should be an equitable one and that the court should sit therein as a court of chancery was left out. By some oversight perhaps, the words in regard to the sequestration of property (an equitable process), were kept in the Statute.

35 Cyc. 1386, sec. A, says:

“Formerly sequestration had its chief importance as a chancery remedy, a ‘species of “grand distress,” ’ whereby the property of a party, or of a corporation, was seized by officers of the court of chancery to punish contempts or to compel obedience to the order or decree of the court, final or interlocutory. Thus it issued to compel an appearance or an answer, especially against corporations, after fruitless resorts to writs of distringas. Before the use of the writ was authorized it had to be shown that imprisonment had failed to break the spirit of the party in contempt or, by a return of non est inventus, upon an attachment, that he could not be found. The court commonly named the persons, usually four, to take possession of and retain the personal property, of the party in contempt and the revenues of his lands, until such time as the contempt should be purged. The modern abolition of imprisonment for debt has been construed to abolish sequestrations as processes to compel obedience to decrees for the payment of money; and in the case of decrees for the performance of acts other than the payment of money the statutes providing for decrees by default upon failure of deféndant to appear or answer and for the issuance of execution, as in the ease of judgments at law, upon decrees in equity; have deprived the writ of sequestration of practically all of its former importance in this phase. Indeed the authorities upon this branch of the law of sequestration are confined chiefly to the decisions of the English courts before the declaration of American independence, the subject having never assumed much practical importance in the United States generally in this aspect.”

In Coughlin v. Ehlert, 39 Mo. 285, it was held that a judgment for alimony is simply an order for the pay ment of money. It was there said: “A writ of sequestration is a process for contempt; but it was said in Roberts v. Stoner, 18 Mo. 481, that ‘ a sequestration merely to compel the payment of money cannot now issue, as imprisonment for debt is now abolished.’ ” McMakin v. McMakin, 68 Mo. App. 57, is to the same effect.

The fact that the trial in a divorce case is without a jury, and that the provision as to the sequestration of property is still printed in the statutes, may cause the casual observer to say that the proceeding is in equity. In Rosenfeld v. Stix, 67 Mo. App. l. c. 586, it was said: “A divorce suit is substantially one in equity.” The contrary was held in the Mangels case, supra.

While it may be true that in a divorce case the court may be called on, incidentally, to decide collateral questions of equity jurisprudence, yet, in the light of the facts as they are, we must hold that, in this‘State, the suit for divorce and alimony is one at law and not in equity.

IY. In view of the law as above stated, it is hard to say that there is any vitality left in the statutory provision for a sequestration. ' But, grant- . .. , . . , mg that it may, m some circumstances, be of service, still it could not be in this case. On the facts as stated the property described is subject to execution on any valid judgment against the defendant. An execution would be as good as a sequestration at its best. Even if such sequestration is not invalid for all purposes, it would be useless in this case.

V. The appellant concedes that a judgment in personam for alimony on constructive service is void, but contends that by describing the property in ^-ie petition with a prayer for its sequestration in satisfaction of the alimony, and by the inclusion of all those things in the order of publication, the proceeding was made one in rem as to such property, and that a judgment in accordance with the prayer of the petition will be valid.

The appellant’s brief says:

“If a defendant is not personally served and does .not enter a voluntary appearance, a personal judgment cannot be rendered. Nevertheless, as the State has control over the marriage status of its inhabitants and also over property within its boundaries, in a suit for divorce and alimony, based on service by publication, the court may acquire jurisdiction to render a judgment in ran not only as to the marriage status, dissolving it, but also as to the property within the State, subjecting it .to alimony award of the court, if the proper foundation is laid by the pleadings and the process.”

There is just one mistake in that statement, and it is a vital one. The foundation must be laid deeper than the pleadings and process; it must be in the lato. That brief cites Pennover v. Neff, 95 U. S. 714, where it is said:

“So the State, through its tribunals, may subject property situated within its limits owned by non-residents 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 non-residents deal with them, it is a legitimate and just exercise of authority to hold and appropriate any property owned by such non-residents to satisfy the claims of its citizens. It is in virtue of the State’s jurisdiction over the property of the non-resident situated within its limits that its tribunals can inquire into that non-resident’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 non-resident have no property in the State, there is nothing upon which the tribunals can adjudicate.”

We concede that to be true; and we will assume that the State can do as much in a suit brought against one of its own citizens who has absconded or who has absented or concealed himself so that the ordinary process of the law cannot be' served upon him-. But there is not in this State any law authorizing a proceeding' against defendant’s property for alimony on constructive service of process. The State has never exercised the power which it possesses in that respect. The courts cannot get such power until the State gives it to them by law.

The petition seems to regard the statutory provision for sequestration of defendant’s property as authority for a proceeding in rem against such property. There are two reasons why that part of the statute cuts no figure in this case. We have seen that it is unconstitutional and void. Even if the statute in that respect is. not void, the writ of sequestration cannot issue until after the judgment for. alimony is rendered. Prior to such judgment the plaintiff is not entitled to any lien, nor to £ £ any lawful right, claim or demand to or against ’ ’ the property described in the petition, as required by section 1770 of the Revised Statutes authorizing orders of publication. The court is not authorized by. the statute to make any order or decree with reference to any specific property. It can only render judgment for money as alimony.

Pennoyer v. Neff, supra, so much relied upon by the appellant, says (l. c. 727):

“The want of authority of the tribunals of a State to adjudicate upon the obligations of non-residents, where they have no property within its limits, is not denied by the court below; but the position is assumed, that, where they have property within the State, it is immaterial whether the property is in the first instance brought under the control of the court by attachment or some other equivalent act, and afterwards applied by its judgment to the satisfaction of demands against its owner; or such demands be first established in a personal action, and the property of the non-resident be afterwards seized and sold on execution. But the answer to this position has already been given in the statement, that the jurisdiction 'of the court to inquire into and determine his obligations at all is only incidental to its jurisdiction over the property. Its jurisdiction in that respect cannot be made to depend upon facts to be ascertained after it has tried the cause and rendered the judgment. If the judgment be previously void, it will.not become valid by the subsequent discovery of property of the defendant, or by his subsequent acquisition of it. The judgment, if void when rendered, will always remain void; it cannot occupy the doubtful position of being valid if property be found, and void if there be.none.”

Bunnell v. Bunnell, 25 Fed. 214, involved the validity of a decree sequestering the property of the defendant in a suit for divorce and alimony. The bill for divorce alleged the grounds thereof, the ownership of the property in controversy and prayer for alimony out of the property of defendant. There was constructive service. The statute provided for the sequestration of defendant’s property for the payment of-the alimony. It was there said by Brown, J., afterward Mr. Justice Brown: “The act makes no provision for proceeding against the property pending the suit for divorce, and the sequestration can only take place after the decree is rendered. If the wife were treated as having an inchoate lien upon the property for alimony, and were allowed to proceed as an attaching creditor when her bill is filed, the suit might then partake of the nature of a proceeding in rem, and a decree for alimony be enforced against the property itself.”

The Pennoyer case is there cited in support of that proposition.

We call attention to the majority opinion in the Court of Appeals herein. It says: “It is true that in the ordinary case it may be said that the remedies mentioned presuppose a personal judgment for alimony.” It then gives moral and sentimental reasons why an exception to the general rule should be made in this. case. Those reasons, strong as they are, have not as yet moved the Legislature to act, and the court cannot for such reasons make an exception where the law makes none.

We will now consider other cases which have been cited.

In Benner v. Benner, 63 Ohio St. 220, the statute provided for constructive service “in actions in which it is sought by provisional remedy to take, or appropriate in any way, the property of the defendant, when the defendant is a foreign corporation, or a non-resident of the State.” Rhoades v. Rhoades, 78 Neb. 495, was based on a similar statute.

Wesner v. O’Brien, 56 Kan. 724, was for the recovery of a tract of land which had been adjudged to the wife as alimony in a divorce proceeding in which there was constructive service. The petition and order of publication described the land. There was a prayer that the land be adjudged to the plaintiff as alimony. The statute provided, “which alimony may be allowed to her in real or personal property.”

Harshberger v. Harshberger, 26 Iowa, 503; Twing v. O’Meara, 59 Iowa, 326, and Rea v. Rea, 123 Iowa, 241, were based on a statute which authorized the court, in granting the divorce, “to enter such orders in relation to the property and maintenance of the parties as shall be right.”

In all those cases cited from other states the statutes were so different from ours that the opinions of the courts thereon have no application here.

Hanscom v. Hanscom, 6 Colo. App. 97, was for maintenance of the wife without divorce, and sought, in aid of the suit, to have a fraudulent conveyance set aside. It was held that while a suit for divorce and alimony was one at law, the suit for maintenance alone was in equity. But the court expressed its opinion as to what could be done both in a suit for divorce and alimony and in that for maintenance. It is said that in such suit for divorce and alimony a decree could be entered on constructive service binding the property of the defendant. In support of that proposition, it cited just three cases, Draper v. Draper, 68 Ill. 17; Wightman v. Wightman, 45 Ill. 167, and O’Callaghan v. O’Callaghan, 69 Ill. 552. An examination of those cases reveals the fact that, so far as appears, there was personal service on the defendant in all of them. For that reason it is impossible to regard those cases as authority for the ruling in support of which they were cited.

The court in the Hanscom case then proceeded to dispose of the question whether property could be reached in such suit for maintenance. It said:

“It is true, generally, that the holder of a legal demand must reduce his claim to judgment against the debtor, and in some way make it a lien upon the property sought to be reached, before he can institute proceedings to annul a conveyance made in fraud of his rights; but where the debtor has absconded, and cannot be reached by the process of the court, leaving behind him property, which, by reason of its situation or character, cannot be subjected to the payment of his liabilities in any proceeding at law, the creditor may resort to equity in the first instance, and in the same proceeding have his claim established, charged against the debtor’s property, and all obstructions in the way of its enforcement removed. It is peculiarly the province of a court of equity to afford a remedy where the law affords none, and so, where the law is powerless to aid the creditor, by reason of the debtor’s absence, and the situation of his property, equity will assume jurisdiction, adjudicate the claim, and, by acting upon the property itself, adjust the rights of all parties to the proceeding, and afford the appropriate relief. .[Scott v. McMillen, 1 Lift. 302; Kipper v. Glancey, 2 Blackf. 356; Peay v. Morrison, 10 Graft. 149; Pendleton v. Perkins, 49 Mo. 565; Farrar v. Haselden, 9 Rich. Eq. (S. C.) 331; Greenway v. Thomas, 14 Ill. 271; Kamp v. Kamp, 46 How. Pr. 143.] In such a case the foundation of equitable jurisdiction is the inability of the law to enforce a legal demand; but where the debt or claim is not legal, but equitable, the jurisdiction does not depend upon adventitious facts, and is not affected -by- the presence or absence of the defendant. ’ ’

Pendleton v. Perkins, 49 Mo. 565, thus cited by the Colorado court, simply holds that where the debtor has absconded so that judgment cannot be obtained against him, and he has no property in the State subject to attachment, but has money in a city treasury belonging to him and not subject to garnishment under the statute, it may be reached by bill in equity, without a previous judgment at law, and without showing fraud or any other ground of equitable jurisdiction.

Wherever the law gives a certain remedy as against legal assets, i. e. assets which can be reached by the ordinary processes of the courts of law, then equity gives similar relief against equitable assets, which are beyond the reach of legal processes. In that matter it is said “equity follows the law.” But it is a perversion of that rule to hold that equity gives a remedy for anything as against equitable assets when the law gives none for the same thing as against legal assets.

The Colorado court did not determine the question whether the judgment for maintenance of the wife was such.as could be made a charge against the legal assets of the husband. It took that for granted without deciding it. How came, that court to make such an oversight ? That opinion itself explains it thus:

“It may therefore be considered as established in this .State that upon a proper cáse made, equity will award alimony, or separate maintenance,' to a wife, in a proceeding where no divorce is sought. This seems to be conceded, but the contention, as we understand it, is that a claim for alimony apart from divorce involves only a personal liability against the husband, and cannot be made a charge upon his property in the first instance; so that, for the purpose of subjecting his property to its payment, a prior personal judgment must be obtained against him. Upon our first examination of the case our views coincided with those of counsel. Our impression was that the court was without power, in this proceeding, to adjudge the amount which might be awarded to the plaintiff to be a charge /upon specific property, and that as the principal defendant had not been personally' served with summons, so that no judgment could be rendered against him, the suit must fail; but a more comprehensive and critical investigation has led us to a different conclusion; and in view of the heartless conduct charged against him, and the serious', hardship of the case if the plaintiff must be denied a remedy, we have not formed the opinion which we now-entertain reluctantly.” The italics are ours.

Murray v. Murray, 115 Cal. 266, is like the Hanscom case, and cites it as authority for the ruling.

Blackinton v. Blackinton, 141 Mass. 432, was brought by the wife for maintenance of herself and child. There was constructive service. No property of defendant was described in the petition. There was a judgment for the expenses of the suit and for a monthly, allowance until further orders. On appeal, Holmes, J., now Mr. Justice Holmes, said:

“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. It is quite true that these considerations may not suffice to give the decree extraterritorial force, and that, in general, courts do not willingly pass decrees, unless they think that other courts at least ought to respect them. But that is not the final test. We think that the statute was intended to authorize such decrees as that appealed from, and tacitly to adopt the rules as to service expressly laid down for divorce. We do not see any sufficient ground for denying the power of the Legislature to pass the act. We are therefore of opinion that the decree was within the power of the court, and can be carried out against the defendant’s property within the jurisdiction, and against his person if he be found here..”

We fail to see' how that case can be regarded as authority on the point under discussion here. There was no property described in the pleadings in that case. The judgment for alimony was upheld on thé ground that such alimony was a part of the res, i. e., the status of the marriage relation, a proposition directly opposed to the doctrine of our Missouri cases, and of the almost unanimous rule of the courts of other States. [See, Ellison v. Martin, 53 Mo. 575; Moss v. Fitch, 212 Mo. 484; Anderson v. Anderson, 55 Mo. App. 268; Hedrix v. Hedrix, 103 Mo. App. 40; Stone v. Stone, 134 Mo. App. 242; Fleming v. West, 98 Ga. 778; Smith v. Smith, 74 Vt. 20; Lytle v. Lytle, 48 Ind. 200; Rea v. Rea, 123 Iowa, 241; Dillon v. Starin, 44 Neb. 881; Rigney v. Rigney, 127 N. Y. 408; Harding v. Alden, 9 Me. 140; Cooley’s Const. Lim. (7 Ed.), p. 584.]

In Elvins v. Elvins, 176 Mo. App. 645, a case for alimony or maintenance without a divorce, just as was the Blacldnton case, Allbn, J., in a well considered opinion, cited the Massachusetts case, but did not follow it. Attention was there called to the fact that in the Rhoades case, supra, the Nebraska statute was very different from ours. It was there said: “It would seem, then, that the right to proceed in rem upon service by publication, in such an action, if at all, must be derived from the provisions of section 1770, supra.” That section provides for orders of publication: “In suits in 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 in 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.”

There is nothing in that section, nor in section 2375, in regard to the judgment for alimony, nor in both of those sections construed together, which authorizes a proceeding in rem against the property of the defendant. And that is true whether the provision as to sequestration of property be considered valid or void.

The fact that in the above cases of Ellison v. Martin, Moss v. Fitch and Elvins v. Elvins, the courts took a passing glance at this question without deciding it should not affect its present consideration.

We call attention to the fact that no relief was prayed against Walter-Chapman; but, if there had been, the case would not be different for the reasons above given.

We do not want to be understood as holding that Walter Chapman has any place in this proceeding under any theory of pleading.

-The judgment of the St. Louis Court of Appeals herein is reversed and that of the trial court is affirmed.

White, G., not sitting.

PER CURIAM:

The foregoing opinion of Rot, C., is adopted as the opinion of the court.

All of the judges concur.