Perry v. Perry

DORAN, J.

The respondent's “Complaint for Money,” filed herein, alleges that on June 6, 1947, the Chancery Court of Bergen County, New Jersey, made an order modifying a previous order of November 23, 1946, and directing that appellant husband pay to the respondent wife, the sum of $25 per week for support and maintenance of the minor children of the parties. It is further alleged that the sum of $3,012.41’ with interest, remains due and unpaid.

Appellant’s answer, by way of affirmative defense, alleges that at the time the supposed order was made, the husband was a resident of the State of New York; that no order for publication of notice was ever made by the New Jersey court, and-that no process was served upon appellant in the State of New Jersey, and that appellant had never appeared in person or by attorney at the hearing. At the trial of the instant action, an affidavit of service was introduced in evidence showing that the notice of hearing of the petition to modify the original order was served upon appellant not in the State of New Jersey where the matter was pending but in the State of New York.

■ -The trial court found that all material allegations of the complaint were true, and that those of appellant’s affirmative

[463]

defense were untrue, and rendered judgment as prayed. It is the appellant’s contention that “The New Jersey Court acquired no jurisdiction to make an order in personam against appellant”; that the order in question directing payment of $25 per week for the children’s support being

in personam,

and based upon personal service outside the State of New Jersey, was invalid, therefore was not entitled to full faith and credit in California.

As authority for the above position, appellant cites the classic case of

Pennoyer

v.

Neff,

95 U.S. 714 [24 L.Ed. 565], holding that a personal judgment rendered in a state court, in an action upon a money judgment against a nonresident of the state, without personal service within the state, the defendant’s personal appearance, is without validity.