Opinion
6 Div. 447.
March 25, 1926.
Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.
S. J. Stiggins, of Maitland, Fla., and W. A. Weaver and T. J. Lamar, both of Birmingham, for appellant.
The judgment or decree of the Louisiana court declaring the alimony paid does not show any notice to appellant, or that she was present in court or represented by counsel; but, even if so, appellant should have been permitted to show that same was untrue. Kingsbury v. Yniestra, 59 Ala. 320. That judgment, rendered without jurisdiction, is a mere usurpation and is void. Foster v. Glazener, 27 Ala. 391; Peet v. Hatcher, 21 So. 711, 112 Ala. 514, 57 Am. St. Rep. 45.
Palmer Daugette, G. C. Boner, and Smith, McCary Tharp, all of Birmingham, for appellee.
The original and subsequent judgments are governed by the law of Louisiana. Forbes v. Davis, 65 So. 516, 187 Ala. 71. The original decree retained jurisdiction over the parties and the subject-matter. Morgan v. Morgan, 99 So. 185, 211 Ala. 7; State v. Sacred Heart Orphan Asylum, 98 So. 406, 154 La. 883. Full faith and credit will be given to the judgment of the Louisiana court, and it will be presumed that the court had jurisdiction. Smith v. Alexander, 42 So. 29, 148 Ala. 557.
At common law, actions in debt could not be maintained on decrees in equity for the payment of money. Van Buskirk v. Mulock, 18 N.J. Law, 184. Later, however, this restriction was removed as to a decree for money due and payable immediately upon its rendition, but not as to a decree directing payments which were to accrue in future. Dow v. Blake. 35 N.E. 761, 148 Ill. 76, 39 Am. St. Rep. 156; Israel v. Israel, 148 F. 576, 79 C.C.A. 32, 9 L.R.A. (N.S.) 1168, 8 Ann. Cas. 697, and note 700; Lynde v. Lynde, 56 N.E. 979, 162 N.Y. 405, 48 L.R.A. 679, 76 Am. St. Rep. 332, 679, affirmed in 21 S.Ct. 555, 181 U.S. 183, 45 L.Ed. 810; 19 Corp. Jur. 364, § 826.
The more modern cases, however, are in accord with the highly authoritative doctrine laid down by the federal Supreme Court in the case of Sistare v. Sistare, 30 S.Ct. 682, 218 U.S. 1, 54 L.Ed. 905, 28 L.R.A. (N.S.) 1068, 20 Ann. Cas. 1061, reversing 66 A. 772, 80 Conn. 1, 125 Am. St. Rep. 102:
"First, that, generally speaking, where a decree is rendered for alimony and is made payable in future installments, the right to such installments becomes absolute and vested upon becoming due, and is therefore protected by the full faith and credit clause, provided no modification of the decree has been made prior to the maturity of the installments, since, as declared in the Barber Case [Barber v. Barber, 16 U.S. (21 How.) 582, 16 L.Ed. 226], 'alimony decreed to a wife in a divorce of separation from bed and board is as much a debt of record, until the decree has been recalled, as any other judgment for money is.' Second, that this general rule, however, does not obtain where by the law of the state in which a judgment for future alimony is rendered the right to demand and receive such future alimony is discretionary with the court which rendered the decree, to such an extent that no absolute or vested right attaches to receive the installments ordered by the decree to be paid, even although no application to annul or modify the decree in respect to alimony had been made prior to the installments becoming due."
In our early case of Harrison v. Harrison, 20 Ala. 629, 56 Am. Dec. 227, which was an action on a South Carolina decree for annual alimony, payable unconditionally in quarterly installments, the action was entertained and judgment given for the accrued installments, without any objection from defendant as to the character of the judgment sued on.
The judgment sued on in the instant case falls very clearly, we think, within the principle of the qualification stated in Sistare v. Sistare, supra. As to the plaintiff's right to receive payment of the installments of alimony as they accrued, there existed, not merely the general power of the court to modify or revoke its order in the premises, ineffective to deny plaintiff's vested right unless and until duly exercised by the decreeing court; but there was written upon the face of the order itself, except as to the first installment, a clear restriction upon defendant's duty to pay in such sense as to deny to plaintiff any vested right in future accruing installments, and reserving to the rendering court exclusively the right and the power to ascertain the existence vel non of the contingency upon which they were to be paid. Certainly a court of law in this state is without authority to entertain and adjudicate an issue of purely equitable nature and cognizance, as presented by the allegations of the amended complaint.
"In order that an action may be maintained in one state upon a judgment recovered in another state, it is necessary that the judgment should be a valid and final adjudication remaining in full force and virtue in the state of its rendition, and capable of being there enforced by final process. Such judgment must be of a nature to create a definite and absolute indebtedness against the judgment defendant." 34 Corp. Jur. 1105, and cases cited in note 95.
In accordance with this well-settled rule, we are of the opinion that the judgment and decree here exhibited could not support a recovery for more than the amount of the first installment, with interest thereon, upon proof that it had not in fact been paid. And, no proof being made of its alleged nonpayment, no judgment could be rendered for plaintiff.
We think also that the judgment and decree pleaded and proved by defendant must, in any view of the original decree for alimony, be accorded the effect of a satisfaction and revocation of that decree.
No objection was made to the form and sufficiency of its certification as a judicial record; plaintiff's contentions being, substantially, that the record as certified failed to show jurisdiction in the premises, in that it did not show that plaintiff had notice of the proceeding, and that, in any event, the decree, being rendered after plaintiff's action herein was filed, cannot serve as a bar to its prosecution.
As to the first proposition, it is well settled in this state, as it is elsewhere, that:
"When a properly authenticated judgment of a sister state is presented to a court of this state, and a want of jurisdiction in the court of the sister state to render the judgment so authenticated does not appear upon the face of the properly certified transcript, it will be presumed prima facie that the court rendering such judgment had complete jurisdiction to do so." Forbes v. Davis, 65 So. 516, 517, 187 Ala. 71, 74, citing the previous cases; McLaughlin v. McLaughlin, 79 So. 354, 202 Ala. 16; 19 Corp. Jur. 377, § 847.
The judgment and decree here in question, not only do not show any want of jurisdiction of plaintiff's person, but affirmatively show that the parties were before the court by the recital that the case had been regularly set down for trial, and regularly taken up and tried "after issue joined."
Nor was the efficacy of that judgment, as a bar to plaintiff's recovery herein, defeated by the fact of its rendition after this suit was begun. Defensive matter thus arising after suit, but before pleas filed or issue joined, may be pleaded and proved in bar of further maintenance of the suit. Sadler v. Fisher's Adm'rs, 3 Ala. 200; Brown v. Brown, 13 Ala. 208, 214, 48 Am. Dec. 52; Wright v. Evans, 53 Ala. 103, 107.
The presumption in favor of a foreign judgment, that the rendering court had jurisdiction of the parties defendant, may be contradicted by extrinsic evidence. Kingsbury v. Yniestra, 59 Ala. 320; Crimm v. Crimm, 99 So. 301, 211 Ala. 13; 19 Corp. Jur. 375, § 845. But, in order to make such evidence available, the facts showing a want of jurisdiction must be specially pleaded. Andrews v. Flack, 6 So. 907, 88 Ala. 294; Hunt v. Mayfield, 2 Stew. 124; Crimm v. Crimm, supra; 34 Corp. Jur. 1120, § 1593. Hence, there being no special replication to defendant's plea of the judgment, setting up a want of jurisdiction, extrinsic evidence was not admissible upon that question. And, it may be added, the bill of exceptions does not show a seasonable offer of such evidence, nor any specific exception reserved to a refusal of the court to receive it.
Whether, as assumed by the trial court, the plaintiff, Mrs. McAlister, was, from the nature and terms of the judgment and decree for alimony, constructively before the Louisiana court for the purposes of modification, revocation or satisfaction of that decree, so that actual notice to her of such a proceeding was not necessary to the jurisdiction of the court, is a question of some difficulty, and its decision here will be pretermitted as unnecessary.
Our conclusion is that, upon the showings of the record, the trial court properly rendered judgment for the defendant, denying plaintiff's right to recover upon the judgment exhibited by her.
Affirmed.
THOMAS, MILLER, and BOULDIN, JJ., concur.