DISSENTING OPINION.
REYNOLDS, P. J.I find myself unable to agree to the conclusion arrived at by my learned associates in this case.
The action appears to have been originally brought by plaintiff against Fred E. Chapman for divorce, alimony, etc. After several writs of summons had been returned “not found” as to Fred E. Chapman, it seems that an amended petition was filed, making Walter Chapman a codefendant. As my associate has set out the substance of this amended petition and its prayer, it is not necessary to here repeat it at length. I add to the summary of this amended petition that it charges that Fred E. Chapman, the. husband, took the deeds and titles to the real estate described, and which is sought to be here sequestered, in the name of his brother, the defendant Walter Chapman, who, it is averred, paid nothing for it and who at all times held and still holds the bare legal title thereto in trust for plaintiff’s husband, who, it is alleged, is the absolute and real owner thereof, and that as. far as plaintiff had been able to ascertain, *505her husband Fred E. Chapman has no other property. Charging that the defendant Fred E. Chapman has absconded and absented himself from his usual place of abode in this State and has concealed himself so that the ordinary, process of law cannot be served upon him, and that the defendant Walter Chapman is a nonresident of this State and cannot be served therein, and that his present whereabouts are unknown, an order for publication is asked for as to each of these defendants. The prayer of the amended petition is that plaintiff be divorced from the bonds of matrimony contracted with Fred E. Chapman, and that the court adjudge to her alimony in gross for her support and maintenance and alimony pendente Me, as also attorney’s fees, suit money and costs, and further that the court establish such money judgment as may "be so rendered in favor of plaintiff, as a .lawful right, claim and demand against the real estate described and which, as it is averred, is within the jurisdiction of the court, and that the court enforce the judgment by sequestration of the property described, or by such other lawful ways and means according to the practice of the court; that a receiver be appointed to take charge of the real property described and that the defendants be enjoined from selling or in anywise disposing of or encumbering or injuring the property, that plaintiff be restored to her former name, and for such other and further relief, etc.
The order of publication follows the amended petition and notifies the defendants to appear in court on the first Monday of the October term, 1915. At the October term default and inquiry was duly granted as to both defendants and at that term the cause was heard and continued to the December term, at which term the court rendered a judgment and decree granting plaintiff a divorce and restoration of her former name but declined to award alimony as prayed, and dismissed the cause as to the defendant Walter Chapman. From this judgment of the circuit court plaintiff has appealed to our court.
It might be sufficient for the expression of my views as to the law of this case to present the opinion of the *506trial judge, which has been brought up by appellant, as it is evidently the result of careful consideration by a judge of long service on the bench and at the bar of this State. I content myself with attaching that opinion as an appendix or note to this, adding a few remarks of my own.
In Doyle v. Doyle, 26 Mo. 545, loc. cit. 549, our Supreme Court held that "the extent of the jurisdiction of our courts in matrimonial cases is limited by statute.” So that court again held in McIntire v. McIntire, 80 Mo. 470, loc. cit. 472.
In Mangels v. Mangels, 6 Mo. App. 481, our court, in a learned opinion by Judge Bakewell, held that under our statute divorce was a proceeding sm generis; neither according to common law or to chancery proceedings: a strictly statutory proceeding.
In Sharpe v. Sharpe, 134 Mo. App. 278, loc. cit. 281, 114 S. W. 584, our court held that all the legislation we have on the subject of divorce is grouped in chapter 20, Revised Statutes 1899, under the head of "Divorce, Alimony and Custody of Children.” This is now article III, chapter 22, sections 2370 to 2381, both inclusive. Revised Statutes 1909.
Our court further held in the Mangel case, supra (6 Mo. App. loc. cit. 485), that:
i (Tpere ean pe xio question that the particular provision in the Divorce Act (referring to what is now section 2371, Revised Statutes 1909) must be taken to restrain the general provision of the Practice Act.”
Herein, says Judge Bakewell, our law differs from that of New York.
It follows that we must look alone to our divorce statute for the procedure in this case. Finding no warrant in that statute for engrafting on an action for divorce one belonging alone to equity, that is, an action to subject real estate to a lien and to affect title to real estate, I am unable to see any ground upon which that part of the relief asked can be bottomed.
I may here say, parenthetically, that title to real estate being involved, I do not see how our court has *507any jurisdiction of this appeal. However, as the case is to be certified to the Supreme Court, that question need not be now considered.
I am, as I think, warranted in my conclusion on the case by a consideration of the decisions of our Supreme and appellate courts.
At an early day in the jurisprudence of our State, it was held that- a judgment in personam for a debt against a nonresident of our State, obtained upon a mere order of publication and without the service of any process within this State, is a judgment without process and is void. [See Smith v. McCutchen, Garn., 38 Mo. 415, decided in 1861.] This has been steadily adhered to and enforced by our Supreme Court in many cases; as see Wilson v. St. Louis & S. F. Ry. Co., 108 Mo. 588, 18 S. W. 286; Moss v. Fitch, 212 Mo. 484, 111 S. W. 475; State ex rel. McIndoe et al. v. Blair, Judge, 238 Mo. 132, 142 S. W. 326. So, too, by our court, as see Hedrix v. Hedrix, 103 Mo. App. 40, 77 S. W. 495, and Elvins v. Elvins, 176 Mo. App. 645, 159 S. W. 746.
Moss v. Fitch, supra, was a proceeding very much like that attempted here.
In that case Judge Graves has said (212 Mo., loc. cit. 497, 111 S. W. 477):
“To determine just where the plaintiff stands in this case we take up two preliminary questions. First, what is the status of the judgment for alimony under which the plaintiff, on execution sale, purchased the property? To our mind, whatever may be the rule in other States, the rule is firmly established in this State that no personal judgment can be had on process of this State, executed' outside of the State, or upon service by publication.”
That learned judge reviews with his usual care the leading cases of the State which establish this proposition. It is true that in his opinion Judge Graves (212 Mo., loc. cit. 499, 111 S. W. 475) quotes from Ellison v. Martin, 53 Mo. 575, loc. cit. 578, what is really a dictum of Judge Adams, to the effect that “whether property can be brought before the court by describing it in the *508petition, and demanding a judgment in rem for alimony, is a question” the court was not then called upon to decide. The fact that this remark is made by Judge Adams in the Ellison case, by no means gives it the force of a decision, nor does the inclusion of it in a quotation from the Ellison opinion by Judge Graves even imply that he had adopted it as a matter of decision.
In State ex rel. v. Blair, Judge, supra, a case in which it was attempted to reach funds belonging to one Kennedy, a nonresident, who had not been personally served with process - in this State in the proceeding against parties summoned as his garnishees, it is said (238 Mo. loc. cit. 152, 142 S. W. 331):
“Before it can be legally said that Kennedy owes or is indebted to the Florence Company, in any sum whatever, for unpaid shares of stock, held by him, there must be a trial had to determine that question, which cannot be had upon constructive service by publication, for the obvious reason that when such a judgment is rendered, if ever, against Kennedy, it must be a personal judgment against him; and under the statute mentioned there is no other means by which that question can be determined.”
Citing a number of cases, Judge Woodson, who wrote the opinion in that case, continues (238 Mo. loc. cit. 153, 142 S. W. 332):
“We therefore hold that the circuit court of Jasper county acquired no jurisdiction over the person of Kennedy, and for that reason the question as to whether or not he was indebted to the Florence Company for shares of stock held by him, cannot be adjudicated in this case, and for that reason the motion to quash should be sustained. ’ ’
The shares of stock were in a corporation of this State and within the jurisdiction of the court.
Our own court, in two notable cases, namely, Hedrix v. Hedrix, supra, and Elvins v. Elvins, supra, the former opinion cited by Judge Graves approvingly in Moss v. Fitch, supra, the latter referred to by Judge Shields in his opinion in the case at bar, the Hedrix case arising *509under our divorce statute, the Elvins case under our wife maintenance statute, expressly holds that a personal judgment based upon service beyond the boundaries of the State or by publication against one not at the time a resident and found within the State, cannot be made the foundation for a personal judgment. In Hedrix v. Hedrix, supra (103 Mo. App. loc. cit. 46, 77 S. W. 497), our court said:
“Whatever views at times may have prevailed in other States (2 Freeman, Judgments [4th Ed.], sec. 567), the courts of Missouri early recognized the principle, that the authority of a judicial tribunal was confined to the territorial limits of the State establishing it, and the line of decisions in this State recognizing that involuntary jurisdiction could be acquired of the person of defendant only by service of process upon him within the limits of the State, is unbroken.”
Hence it is held that the judgment for alimony rendered in a divorce case in which there had been no personal service within this State, was void and would not sustain a proceeding in garnishment. i A multitude of cases are cited for this.
In Elvins v. Elvins, supra, the wife with an order for maintenance entered in an action in which there had been no service of process on the defendant within our State, it is said (176 Mo. App. loc. cit. 651, 159 S. W. 748):
“It must be conceded that, if the order here appealed from is purely a judgment in personam, then the court can acquire jurisdiction to make the order only by personal service within the limits of‘‘this State; for it is well settled that service by publication, or personal service beyond the limits of the State, will not support a judgment in personam.”
Many authorities are cited in support of this proposition.
In the case at bar, a proceeding for divorce in which there has been no personal service whatever and no appearance by the defendants it is sought to obtain a money judgment against the husband for alimony pendente lite *510and in gross and suit money, on substituted service. Such a judgment, as we have seen, has been uniformly held in our State to be void. It is then sought to enforce this void judgment against real property standing in the name of another but said to be the property of the husband. To do the latter, it would be necessary for the court, in this statutory action for divorce, to declare void and wipe out deeds made at the instance of the husband to his codefendant, but charged to be of the realty of the husband, and to enforce against this realty a void judgment. As has been so aptly said by Judge Graves at page 501 of 212 Mo., at page 479 of 111 S. W. (126 Am. St. Rep. 568), in Moss v. Fitch, supra:
“No process issued by the courts of this State and served upon the party defendant in another State can be the basis of a personal judgment. And this is true whether the party in fact is a citizen of this State or of another State.”
To my mind the attempt to render a money judgment and then enforce it against real estate not even standing in the name of the husband but charged to be his in equity, is so absolutely illogical and so contrary to a long line of decisions in our State, that I am unable to appreciate the line of reasoning by which it is sought to be sustained.
It is admitted that the vital question here presented has never been distinctly before any of our appellate courts. While that is no conclusive reason against it,.a failure of the bar and courts of our State to resort to such a proceeding in a divorce case, surely is of some weight, when we realize that for almost a century of our existence as a State and with the law of. divorce always present in our State and construed in a multitude of eases by our appellate courts, no such position has ever been taken by counsel or sustained by our courts. As was said by the Supreme Court, when our Special Jury Law was attacked as unconstitutional, “Such a view ought not to be lightly considered or adopted. ’ ’ [Eckrich v. St. Louis Transit Co., 176 Mo. 621, loc. cit. 637, 75 S. W. 755, 759.] As this case was presented in the trial *511court as also before us ex parte, neither of the defendants appearing or represented in either court, we should be slow in making such a radical departure from what I think is a settled rule.
As said by our courts in several of the cases cited, we must look to our own laws for. guidance in matters of divorce; hence I have not considered cases cited from other jurisdictions.
Deeming the decision of the court contrary to the previous decisions of our Supreme Court and of our own court in the cases which I have cited, especially those of Moss v. Fitch, 212 Mo. 484, 111 S. W. 475, and State ex rel. v. Blair, 238 Mo. 132, 142 S. W. 326, I respectfully ask that this cause be certified and transferred to the Supreme Court for its determination.
The opinion of Judge Shields, above referred to, is as follows:
“This is a suit for divorce. After several summons were issued on which the returns were ‘not found,’ the plaintiff filed an amended petition wherein she set up the grounds for divorce and the jurisdictional averments, and then averred that she was wholly without means of support, and that her- husband, Fred E. Chapman, purchased and paid for with his own money certain real estate in city block 3788 of the city of St. Louis, and certain other real estate in the county of St. Louis, Mo., but took the deeds and title to said real estate in the name of his brother, defendant Walter Chapman, who paid nothing therefor, and who at all times held and still holds the legal title thereto in trust for plaintiff’s said husband, the absolute and real owner thereof; and that, so far as plaintiff has been able to ascertain, her said husband has no other property; that her husband has absconded and absented himself from his usual place of abode in this State and has concealed himself so that the ordinary process of law cannot be served upon him; that diligent efforts have been made to find the defendant Fred E. Chapman and serve him with summons, but has failed; and that the sheriff made the returns ‘not found;’ that the other defendant, Walter Chapman, is a nonresident *512of the State of Missouri and cannot he served in this State, in the manner prescribed by law; that plaintiff does not know his present whereabouts, nor how he could be personally served. Plaintiff therefore prays an order of publication against both defendants, and that plaintiff be divorced from the bonds of matrimony contracted as aforesaid with defendant Fred E. Chapman; that the court will allow to her permanent alimony in gross for her support and maintenance, and alimony pendente lite and'for 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 this 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 incumbering or injuring said property; and that plaintiff be restored to her former name, Fannie P. Price, and to make such further orders and judgments touching the premises as may be proper. The petition has the usual oath in divorce cases as to collusions, etc.
“An order of publication was issued against the husband, Fred E. Chapman, and also his brother, Walter Chapman, who was alleged to hold the property for her husband. The order of publication not only set out the bringing of the divorce suit and the grounds for divorce, but also the fact that plaintiff sought to make whatever alimony might be allowed in gross a lien on the property described in the petition. The case was heard, and the plaintiff introduced evidence showing that she was the injured and innocent party, and that the conduct of her husband was such as under the law entitled her to a divorce and the restoration of her maiden name.
“The only question in the ease is whether or not the plaintiff can obtain a judgment for alimony in gross and have the same made a special charge on the property held by Walter Chapman, as the property of her husband, Fred E. Chapman. I think the preponderance of *513the evidence shows that the property described in the petition, although in the name of defendant Walter Chapman, belongs to the husband, Fred E. Chapman. Both pieces of property were incumbered by deeds of trust. The trustees and holders of each are not made parties to the suit. Counsel for plaintiff cites eases from the Supreme Courts of other States showing that, where the parties defendant are brought in by constructive service, the court may grant a divorce with alimony in gross and make the same a lien, not only on the real estate within the jurisdiction of the court, hut property in other counties of the State. [Benner v. Benner, 63 Ohio St. 220, 58 N. E. 569; Hanscom v. Hanscom, 6 Colo. App. 97, 39 Pac. 885; Wesner v. O’Brien, 56 Kan. 724, 44 Pac. 1090, 32 L. R. A. 289, 54 Am. St. Rep. 604; Blackinton v. Blackinton, 141 Mass. 432, 5 N. E. 830, 55 Am. Rep. 484.]
“The question is: Can this he done in the State of Missouri? It is the law in this' State that divorce proceedings are purely statutory, and is included in sections 2370-2381, R. S. 1909. [Sharpe v. Sharpe, 134 Mo. App. 278, 114 S. W. 584.] An examination of this statute does not show any authority to render a judgment for alimony in gross and charge it against specific property of the husband. And this perhaps is one of the reasons why the Court of Appeals and the Supreme Court have declined to pass on this question in the cases before them: In the case of Hedrix v. Hedrix, 103 Mo. App. 40, 77 S. W. 495, the court held that personal service beyond the limits of this State, under section 582, R. S. 1889, does not authorize a personal judgment, and that a judgment for alimony in a divorce proceeding, which was a personal judgment, rendered upon such service, is void; the court saying on page 46 of 103 Mo. App. 77 S. W. 497:
“ ‘In the opinion of this court, a true and correct interpretation of section 582 of the statute does not contemplate nor attempt to authorize, nor does it purpose a personal judgment based upon service of process on defendant beyond the boundaries of the State of Missouri. Whatever views at times may have prevailed in other *514States (2 Freeman, Judgments [4 Ed.], sec. 567), the courts of Missouri early recognized the principle that the authority of a judicial tribunal was confined to the territorial limits of the State establishing it, and the line of decisions in this State recognizing that involuntary jurisdiction could be acquired of the person of the defendant only by service of process upon him within the limits of the State is unbroken. [Smith v. McCutchen, 38 Mo. 415; Wilson v. Railway, 108 Mo. 588; Latimer v. Railway, 43 Mo. 105; Ellison v. Martin, 53 Mo. 575.] The ease of Ellison v. Martin, 53 Mo. 575, differed from the case at bar only in the respect that service wás had upon the defendant by publication, in lieu of the method of personal service now substituted by statute, and resorted to herein. The judgment for alimony therein was held void, as was the title obtained by execution sale thereunder, and the court in turn holds that the Legislature never contemplated that general judgments might be rendered merely on publication of notice without appearance of the defendant. Alike on principle and authority the judgment for alimony in the divorce proceeding was void, and the garnishment writ was rightly quashed, and the judgment of the lower court is affirmed. ’
“In the case of Elvins v. Elvins, 176 Mo. App. 645, 159 S. W. 746, the court held that service by publication or personal service beyond the- limits of the State will not support a judgment in personam; that, while a divorce suit is a proceeding in rem (the marriage status constituting the res), a personal judgment for alimony cannot be supported by constructive service upon the defendant; that an order for support and maintenance pendente lite cannot be made and enforced without determining the jurisdiction of the court to make such an order on constructive service, since the question of jurisdiction underlies the power of the court to make and enforce any order affecting the rights of the defendant.
“The court says, on page 661 of 176 Mo. App., on page 748 of 159 S. W.:
*515“‘It must be conceded that, if the order here appealed from is purely a judgment in personam, then the court can acquire jurisdiction to make'the order only by personal service within the limits of this State; for it is well settled that service by publication, or personal service beyond the limits of the State, will not support a judgment in personam’ citing many cases.
“The court then refers to the claim of respondent’s counsel in that case that the court may acquire jurisdiction iipon service by publication as to the property of a nonresident husband situated within the jurisdiction of the court and reviews .cases from other States on that subject which are relied on by plaintiff in the case at bar to sustain his contention, and, after reviewing the same, the court says, on page 655 of 176 Mo. App., on page 749 of 159 S. W.:
“ ‘There appears to be no authority in this State to support respondent’s position. In Ellison v. Martin, 53 Mo. 575, it is remarked: “Whether property can be brought before the court by describing it in the petition and demanding a judgment in rem for alimony is a question we are not now called upon to decide.” We are pointed to no case in this State in which a wife has attempted to thus proceed in rem against the property of a nonresident husband, to appropriate such property to the payment of alimony or maintenance.’
* ‘ ‘ This question came before the Supreme Court in the case of Moss v. Fitch, 212 Mo. 484, 501, 111 S. W. 475, 479, and after a full discussion of the case and a review of the Missouri cases on the subject the court says:
“ ‘So that we repeal that, whatever may be the holdings elsewhere, our court places the acquisition of jurisdiction upon which a personal judgment can be rendered upon the fact of personal service of the party with process in this State. In other words, no process issued by the courts of this State and served upon the party defendant in another State can be the basis of a personal, judgment. And this is true whether the party in fact is: a citizen of this State or of another State. To be more explicit, when our process crosses the State line, it loses *516its vitality as an instrument upon which a personal judgment can he entered. We are cited to the case of Hamill v. Talbott, 72 Mo. App. 22, and the same case, 81 Mo. App. 210, from the Kansas City Court of Appeals. There are some observations in these two opinions which are at variance with the views heretofore announced by this court and the St. Louis Court of Appeals, supra. To the extent that they announce a different view, they are and should be overruled. In the case at bar there is no sufficient evidence to show that Mills entered appearance or otherwise submitted to the jurisdiction of this court. Prom this it follows that plaintiff's judgment for alimony and all proceedings thereafter as to the execution and sale were absolutely void, and she acquired no title to the land by reason thereof.’
“Turning to the case of Hamill v. Talbott, 72 Mo. App. 22, which is thus overruled by the Supreme Court, we find the court held: Where the service on a defendant is constructive, and though he at the time is absent from the State, yet, if he is a citizen of such State, a personal judgment may be taken against him notwithstanding there was no personal service.
“Now, if the Supreme Court overrules the case of Hamill v. Talbott, 72 Mo. App. 22, and 81 Mo. App. 210, which held differently from the universal holdings of the Supreme Court as to constructive service, I do not see how the mere attempting to charge property of the defendant husband with alimony in gross on constructive service could be held valid.
“In other words, the settled law of the State of Missouri is that no judgment for alimony can be rendered against a defendant who is brought into court by constructive service, and such has been the law for many years.
‘ ‘ The plaintiff in the case at bar asks ‘ 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 ag'ainst said real estate within the jurisdic*517tion 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 and defendants be enjoined from selling said property, etc. In other words, the court is asked to render a judgment for alimony in gross, which in the very nature of things must be a personal judgment, and cannot be upon constructive service, and then make it a charge against said real estate of the husband which said property is in the name of the husband’s brother who is also brought into court on constructive service.
“I also have very serious doubts whether or not a petition asking that alimony shall be declared a lien on defendant’s property in the hands of another can be joined with an ordinary proceeding for divorce.
“If a divorce proceeding is purely statutory and the decisions of the court are that alimony cannot be allowed on constructive service, on what theory could the averment that the nonresident defendant had property in Missouri on which plaintiff seeks a lien overturn the settled law in this State!
“The judgment of the court will be, that the plaintiff have a decree of divorce against her husband, Fred E. Chapman, and the restoration of her former name; but, as the defendants are not in court by personal service in this State, no alimony can be awarded. Plaintiff’s bill as to Walter Chapman is dismissed.” . -