On Rehearing.
LAND, J.In our former opinion we held that the judgment for alimony was valid as an incident to the proceedings for a separation from bed and board and for a divorce. Further reflection has convinced us that we erred in so holding. The demand for alimony and judgment rendered thereon were purely in personam, unaccompanied by seizure of or proceedings against property within the state.
Conceding that the proceedings for divorce were quasi in rem, it does not follow that the court had incidentally jurisdiction to render a personal judgment against the nonresident defendant, who was not personally cited, and who did not make a voluntary appearance.
In Herber v. Abbott, 39 La. Ann. 1112, 3 South. 259, this court, held that a judgment against a nonresident defendant, not personally cited, in an attachment suit, had no validity except as against the thing subjected to the control of the court. We make the following extract from the opinion in that case:
“Indeed, we do not see how such a judgment could operate as a judicial mortgage affecting the present and future property of an absentee, not personally cited at the rendition, without impeaching our own jurisprudence and that of the United States Supreme Court. Merchants’ Bank of Baltimore v. Bank of the United States. 2 La. Ann. 663; Millaudon v. Beazley, 2 La. Ann. 916; Broughton v. King, 2 La. Ann. 569; Thayer v. Tudor, 2 La. Ann. 1010; Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565.”
It is -well settled that costs are incidental to and follow a judgment, but the Supreme Court of the United States has held that in actions in rem or quasi in rem a personal judgment for costs cannot be rendered against a nonresident not cited or appearing, though the court may order such costs paid out of the proceeds of the property subject to its control. Freeman v. Alderson, 119 U. S. 185, 7 Sup. Ct. 165, 30 L. Ed. 372. Hence the circumstances that a particular demand is incidental to a demand in rem or quasi in rem cannot affect the rule of constitutional law that a personal judgment cannot be validly rendered against a nonresident on mere constructive notice by publication or otherwise. Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565.
Although the precise question now under consideration has not been decided by the Supreme Court of the United States, it has been held by inferior federal tribunals to be a plain proposition of law that a state court is without jurisdiction to award a money judgment for alimony against a defendant on whom no personal service has been made, and who has not voluntarily appeared in the proceedings. Bunnell v. Bunnell (C. C.) 21 Fed. 244; Hekking v. Pfaff, 91 Fed. 60. 33 C. C. A. 328, 43 L. R. A. 618.
This same doctrine is laid down by Judge Cooley as follows:
“But in divorce cases, no more than in any other, can the court make a decree for the payment of money by a defendant not served with process, and not appearing in the case, which shall be binding on him personally. It must follow in such a case that the wife, when complainant, cannot obtain a valid decree for alimony, nor a valid judgment for costs.” Const. Lim. (7th Ed.) p. 584.
See, also, Rigney v. Rigney (N. Y.) 28 N. E. 405, 24 Am. St. Rep. 462; Dillon v. Starin (Neb.) 63 N. W. 12; Smith v. Smith (Vt.) 51 Atl. 1060; Anderson v. Anderson, 55 Mo. App. 268.
*737In De La Montanya v. De La Montanya (Cal.) 44 Pac. 345, 32 L. R. A. 82, 53 Am. St. Rep. 165, it was held that constructive service of summons cannot give jurisdiction in a divorce suit to award alimony and the exclusive custody of the children, where the husband and children are outside of the state, and do not appear, even if their domicile be within the state.
The solitary ease of Sprague v. Sprague (Minn.) 76 N. W. 268, 42 L. R. A. 419, 72 Am. St. Rep. 636, is cited in opposition to the current of authorities already mentioned. In that case alimony was awarded against the husband, who was the plaintiff in the suit, and there was no question of the validity of the judgment as against him. The wife, who was temporarily absent from the state when the divorce proceedings were had, but who had been personally served with summons outside of the state, complained that the court was without jurisdiction, and sought to obtain judgment in a separate suit for a large amount of alimony. It is stated in the opinion that the wife judicially admitted that she had consented to the divorce proceedings. The judgment awarded a lump sum, payable out of the estate of the husband, and therefore seems to have been considered as operating on the property of the husband within the jurisdiction of the court. The case stands alone on its particular facts, and cannot be considered as contravening the well-settled principle of constitutional law that an award of alimony is a judgment purely in personam, and not in rem, or quasi in rem.
We reached this conclusion in our former opinion when we held that a decree for alimony is a judgment for money, subject to appeal, and susceptible of enforcement through a writ of fieri facias. The obligation of duty of the husband to pay alimony is not secured in this state by any lien or privilege on property, nor does it vest in the wife any rights in, to, or upon the property of the husband. Hence such a demand is purely in personam, and a judgment thereon cannot be validly rendered against the nonresident husband not personally cited or appearing without a denial of due process of law.
During the pendency of the suit for separation from bed and board the court condemned the absent defendant to pay alimony at the rate of $100 per month from April 1, 1897, and the further sum of $50 costs and $200 attorney fees.
Soon after the rendition of this order the defendant, while transiently in the state, was ordered and notified to show cause why he should not pay such alimony, and in default be punished for contempt for failing to do so. Defendant made no appearance, and no further proceedings were had on the rule. The notice of the order or decree to pay alimony did not cure the previous defect of want of citation, nor can we conceive how the service of the rule on defendant can be considered as an acquiescence on his part in the decree or its execution. The rule was predicated on the refusal of defendant to obey the order of the court, and he persisted in such refusal after service of the rule on him.
Notice of judgment cannot operate as an acquiescence therein on the part of the defendant, nor can such notice operate as a citation or summons for future proceedings in the same cause.
We are constrained to hold reluctantly that the decree of alimony in question was an absolute nullity for want of citation.
It is therefore ordered that our former decree herein rendered be vacated, that the judgment of the Oourt of Appeal be reinstated, and that this application for review be dismissed, at the cost of the applicant.