sarily withdrawn from its operation by the divorce." Dean v. Richmond, 22 Mass. 461.

"The decree of divorce a mensa et thoro between the parties did not affect their status of marriage; it simply justified their separation." Drum v. Drum, 69 N. J. Law, 557, 55 Atl. 86.

"The parties still remained husband and wife in the eye of the law. An action for limited divorce is really an appeal to a court of equity by one of the parties to a marriage contract for a modification of the marriage relations, duties and obligations as they exist at common law." People v. Cullen, 153 N. Y. 629, 47 N. E. 894, 44 L R. A. 420.

"The relation of husband and wife is not dissolved. It only undergoes a very inconvenient suspension and which is intended to operate as a continual invitation to the parties to return to their first love." Chancellor Kent, Barrere v. Barrere, 4 Johns. Ch. (N. Y.) 187-197.

Independently of authority, a decree that simply creates a terminable abnormal relation between husband and wife cannot be said to affect the underlying marital status. At any rate, we give to this decree of separation all the effect the New York courts claim for it when we treat it as a temporary or at least a terminable modification of the personal rights and obligations of the parties arising out of the marriage contract, without the slightest intention of rescinding the contract itself. It leaves the contract and the permanent contractual relation untouched, and it excuses one of the parties from the obligation of cohabitation, while still holding the other party to the performance of his other contractual duties. Such a decree must rest on the jurisdiction of a court of equity to regulate the conduct of the parties before it. From the wife's standpoint it is a personal license to refuse to live with her husband. In theory, a court of equity intervenes to protect her against the assertion of a legal right on the part of the husband on the ground that it is unsafe and improper to require her to submit to cohabitation. From the husband's standpoint, he is, in effect, prevented from exercising his right to cohabitation, although, as Chancellor Kent says, the right of cohabitation is not destroyed, but is merely suspended; and in theory a court of equity assumes the right to control his conduct for the time being for the protection of his wife.

Such being the nature and effect of the decree when both of the parties are before the court, it is difficult to see upon what theory any extraterritorial effect can be claimed for the decree as against a nonresident, nonappearing defendant not served with process.

When both parties are before the court, the decree is conclusive as to the issues of fact upon which it is based. Harding v. Harding, supra. But, in so far as it attempts to regulate the future conduct of the parties, an ex parte decree for judicial separation is necessarily local in its operation on the nonappearing defendant.

The state of New York has no right to regulate, and we do not suppose this decree attempts to regulate, the manner in which the nonresident, nonappearing husband should conduct himself toward his wife in Connecticut. The decree does not purport to authorize or require Mr. and Mrs. Pettis to live in Connecticut in a state of marital celibacy unknown to our law. It merely purports to afford the wife a local protection against the assertion by her husband of his right of cohabitation. And, if we assume that in spite of its ex parte character it accomplishes that purpose, we give it all the effect, so far as Mr. Pettis is concerned, which can be claimed for it.

We have thus shown that a decree of judicial separation does not affect status; that it is not a final decree, but is terminable at any time by the reconciliation of the parties; that it rests upon the jurisdiction of equity to control the conduct of parties before it, and that, in so far as it purports to regulate the conduct of a defendant not within its jurisdiction, it is necessarily local in its operation. Such a decree has no resemblance to a judgment in rem. It is purely personal, and therefore, as against a nonresident, nonappearing defendant, entitled to no extraterritorial effect, by way of comity or otherwise. The other Judges concurred, except WHEEL

There is no error. ER, J., who dissented.39

39 See Thompson v. Thompson, 226 U. S. 551, 33 Sup. Ct. 129, 57 L. Ed. 347 (1913); and notes, 27 Yale Law Journal, 117 (1917); 4 A. L. R. 858.

ENGLISH LAW.-The English courts have jurisdiction to decree a judicial separation when both parties (1) are domiciled in England at the time of the commencement of the action; or (2) had their matrimonial domicile in England when the cohabitation ceased, or the events occurred on which the claim for separation is based; or (3) were both resident in England at the time of the commencement of the suit. Anghinelli v. Anghinelli, [C. A. 1918] Prob. Div. 247; Dicey (3d Ed.) p. 296.

LOB.C.L. (2D ED.)-45

SECTION 4.-HUSBAND AND WIFE

I. PERSONAL RIGHTS and DUTIES

RHOADES v. RHOADES.

(Supreme Court of Nebraska, 1907. 78 Neb. 495, 111 N. W. 122, 126 Am. St. Rep. 611.)

EPPERSON, C.40 The question presented by this appeal is one of some importance, and has not heretofore been passed upon by this court. The facts are substantially as follows: July 1, 1884, the plaintiff, Alice M. Rhoades, and the defendant George M. Rhoades were married in Adams county, Neb., where they then resided. One child, born June 4, 1885, is the issue of their marriage. The parties moved to Hall county, this state, in 1886, and continued to live together as husband and wife until June, 1887, when Mrs. Rhoades left her husband because of his extreme cruelty, and has since justifiably lived apart from him. Shortly after the separation, defendant moved from Nebraska, and at all times since has been a nonresident of the state, and his whereabouts are unknown to plaintiff. Defendant is the owner of an undivided one-half interest in a certain quarter section of land in Hall county. In 1901 plaintiff instituted this action in the district court of that county, upon notice by publication, alleging the above facts, and others, which would entitle her to a divorce, and prayed that the court determine a reasonable sum due from defendant for her maintenance and support without divorce, and the interests of defendant in the Hall county land be subjected to the payment of such sum; that a receiver be appointed to take charge of the interests of the defendant in said premises and collect the rents and profits arising therefrom; and that plaintiff have such other and further relief as may be just and equitable. Defendant filed a special appearance and objected to the jurisdiction of the court. His objections were overruled, and, upon his refusal to plead further, trial was had and a judgment entered for plaintiff. The court found the facts substantially as above stated, and, further, that plaintiff and her child were entitled to maintenance and support out of the rentals of defendant's said property in the sum of $500 per year; that the temporary receiver appointed at the commencement of the action had taken possession of the interests of defendant in said real estate, and the tenant in possession had attorned to said receiver and paid to him the share of defendant in the rents and profits therefrom. It was adjudged and decreed by the court that the undivided interest of de

40 Part of the opinion is omitted.

fendant in the Hall county land be impounded and the rents and profits devoted to the maintenance and support of the plaintiff. That N. S. Taylor be appointed receiver to take possession of said property and manage the same and collect the rents and profits arising therefrom, together with the rents and profits which have come into the hands of the temporary receiver from said premises, and that he distribute the same: (1) To the payment of the costs that may be adjudged against the plaintiff in this suit; (2) To the payment of such reasonable fees as the court may determine for his services as such receiver, and one-half of the taxes levied and assessed against said premises, and one-half of the necessary repairs and improvements thereon; (3) That the balance be paid, as collected, to the plaintiff herein. Defendant appeals.

The sole question for determination is: Did the district court have jurisdiction, upon service by publication, to subject the interests of the nonresident husband in the Hall county land to the maintenance and support of his wife and child?

1. It has been held that a court of equity will entertain an action brought for alimony, and will grant the same, although no divorce or other relief is sought, where the wife is separated from her husband without her fault. Earle v. Earle, 27 Neb. 277, 43 N. W. 118, 20 Am. St. Rep. 667; Cochran v. Cochran, 42 Neb. 612, 60 N. W. 942; Price v. Price (Neb.) 106 N. W. 657. And it is clear that the district courts of this state, being courts of general equity jurisdiction, are not limited in the exercise of such jurisdiction by statute. Cochran v. Cochran, supra. However, the question presented by this record was not involved in the cases above cited. It is here sought, under the general equity powers of the court, to appropriate property of a nonresident, which is situated within the jurisdiction of the court, to the maintenance of his wife and child.

2. It is urged that service by publication is not authorized by statute in cases of this kind. Section 1078, Cobbey's Ann. St. 1903, provides that service may be made by publication "in actions brought against a nonresident of this state, or a foreign corporation having in this state property or debts owing to them, sought to be taken by any of the provisional remedies, or to be appropriated in any way." It is apparent that the Legislature intended the clause, "to be appropriated in any way," to apply to actions similar to the case at bar. It cannot be claimed that the clause is limited to actions where an appropriation of property is sought by provisional remedies. The preceding language includes all cases where property is sought to be thus taken, and hence the expression, "to be appropriated in any way," could serve no useful purpose in the statute if construed to refer only to actions where an appropriation of property is sought to be taken by provisional remedies.

3. Neither can it be successfully contended that there was no "ap

propriation," or that the property was not brought within the control of the court. "Control of the property by the court before the rendition of the judgment is essential to the jurisdiction to render it, and, if rendered without such jurisdiction, it cannot be made valid by the subsequent seizure of the property of the defendant. But we do not understand that it is necessary, in order to bring the property under the control of the court, that it shall be actually taken on attachment or other writ. Any authorized act by which the court takes charge of property or asserts its control over it is sufficient, within the meaning of the rule, for the purpose of jurisdiction." Benner v. Benner, 63 Ohio St. 220, 58 N. E. 571. In Murray v. Murray, 115 Cal. 266, 47 Pac. 37, 37 L. R. A. 626, 56 Am. St. Rep. 97, it was said: "According to the common experience of mankind, the owner of property keeps some oversight of it, wherever situated, and will probably be apprised of the seizure thereof, and so warned of the purpose of the seizure. To accomplish this object, the taking of property into the possession of a receiver is at least as well adapted as the similar taking by attachment, and it is a common practice to apply property which has been attached in the course of an action in personam against a nonresident to the satisfaction of the judgment obtained, although no personal service of summons has been effected. Attachment is not the only means by which the court may acquire control of the property of the absentee defendant, so as to impress the action, as to such property, with the jurisdictional characteristics of a proceeding in rem." Benner v. Benner and Murray v. Murray, supra, are cases similar to the one at bar. See authorities cited in those decisions. A temporary receiver was appointed at the commencement of this action, who took possession of the land in controversy and collected the rents and profits therefrom. We are therefore of opinion that there was a sufficient seizure of the property to bring it within the control of the court when the judgment was rendered.

It

4. This court has held that service by application is sufficient in proceedings substantially in rem. Fowler v. Brown, 51 Neb. 415, 71 N. W. 54; Anheuser-Busch Brewing Co. v. Peterson, 41 Neb. 897, 60 N. W. 373. But it is urged that this action is one in personam, and the court acquired no jurisdiction by constructive service. is fairly well settled in this state than an action for alimony, in the strict sense of the term, is a proceeding in personam, and personal service must be had, or an appearance made, to authorize a personal judgment against the defendant. Dillon v. Starin, 44 Neb. 883, 63 N. W. 12, and cases cited. We concede the force of the rule above stated, but it is inapplicable to the facts in this case. Williams, J., answering a similar contention, in Benner v. Benner, supra, said: "Cases are cited to sustain this contention which hold that, although ex parte divorce may be obtained on constructive service, alimony