Opinion
December 1, 1911.
John N. Johnson, for the appellant.
John W. Remer, for the respondent.
Plaintiff by this action seeks to enforce in this jurisdiction a judgment of the Circuit Court of Cook county in the State of Illinois, rendered July 18, 1902, while both were residents of that State and after personal service upon defendant and his appearance in the action, whereby she obtained an absolute divorce from defendant, with alimony at the rate of forty dollars per month; to recover arrears of which, amounting to $4,165, and interest, judgment is prayed for.
Defendant seeks leave to interpose an amended answer, setting up the following new matter: "That under Section 18 of chapter 40 of the Revised Statutes of the State of Illinois, such an alleged judgment is not final, but may, with respect to alimony, be altered from time to time as may appear reasonable and proper; but the courts of the State of Illinois hold that alimony adjudged to a wife in a decree of divorce is a vested right only up to the time of her remarriage to another man, when it ceases and determines." As to the first part of the proposed answer, it is ineffectual, for while it sets up the power of the courts of the State of Illinois to alter the provisions for alimony contained in a judgment, it does not allege that such power has ever been exercised in this case. The second part, however, may be available to defendant, for prior paragraphs of the present answer set up the remarriage of plaintiff to Charles Werner "a few weeks" after the rendition of the judgment of divorce, and it may be that the amount concededly paid by defendant for alimony was sufficient to pay all the alimony which had accrued up to the time of the remarriage, which, if defendant can establish the state of the law in Illinois to be as claimed, might constitute a defense. We are not now called upon to determine whether the view of that law, which is sought to be pleaded, is correct. Assuming that he can establish this defense, it would have a material bearing upon the force to be given to the Illinois judgment, for, as was said in Suydam v. Barber ( 18 N.Y. 468), no greater effect is to be given to the judgment of any State than belonged to it in the State where it was rendered.
The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the application for leave to serve an amended answer granted upon payment by defendant of the taxable costs and ten dollars motion costs.
INGRAHAM, P.J., LAUGHLIN, SCOTT and MILLER, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion for leave to serve amended answer granted on payment by defendant of taxable costs and ten dollars motion costs. Order to be settled on notice.