Israel v. Israel

• Decision Date: 17 October 1906
• Docket Number: 37.
• Citation: 148 F. 576
• Parties: ISRAEL v. ISRAEL.
• Court: U.S. Court of Appeals — Third Circuit

148 F. 576

ISRAEL v. ISRAEL.

No. 37.

United States Court of Appeals, Third Circuit.

October 17, 1906

David Wallerstein, for plaintiff in error.

D Stuart Robinson, for defendant in error.

Before DALLAS and GRAY, Circuit Judges, and BRADFORD, District Judge.

BRADFORD District Judge.

This is a writ of error taken by Abraham Israel to reverse a judgment for $2,640.71 and costs recovered against him in the court below by Tillie B. Israel, defendant in error, in an action of assumpsit, founded on a certain judgment or decree for the payment of alimony, maintenance and costs, rendered by the Supreme Court of New York, in a suit for divorce brought by him against her. The plaintiff in the court below introduced in evidence an exemplified copy of the record of the proceedings in the New York suit and rested. The defendant offered no evidence and a verdict for the plaintiff was taken subject to the question reserved 'whether there was any evidence to go to the jury in support of plaintiff's claim. ' This point was determined adversely to the plaintiff in error and judgment was entered on the verdict. The assignments of error broadly raise the question whether the judgment or decree for the payment of alimony, maintenance and costs in the New York suit could support the action of assumpsit in the court below. It appears from the record that the New York suit was brought by the plaintiff in error to secure an absolute divorce from the defendant in error, and that, the latter in her answer to the complaint having denied the charges made against her and set up a counterclaim and prayed for a dismissal of the complaint and, by way of affirmative relief for a separation from bed and board and suitable support and maintenance, it was, July 21, 1902, adjudged and decreed by the court, among other things, as follows:

'Fourth. That the plaintiff pay the defendant weekly on Monday of each and every week commencing on the 30th day of June, 1902, and until the further order or judgment of this court, the sum of thirty dollars for the support and maintenance of defendant and the said children, such payment, however, not to be in lieu of dower or right of dower of the defendant in the plaintiff's real estate or any interest in his personal estate in case of his death intestate.

'Fifth. That the defendant recover from the plaintiff the costs of this action to be adjusted by the clerk of this court.'

It appears from the record that the costs of the New York suit were adjusted by the clerk at the sum of $223.85, and were, September 15, 1902, adjudged and decreed to be paid by the plaintiff to the defendant.

The defendant in error contends that by virtue of the Constitution and laws of the United States full faith and credit are to be given in Pennsylvania to the judgment or decree of the Supreme Court of New York, and therefore that the action in the court below was sustainable. The plaintiff in error denies that the Constitution or legislation of the United States so applies to the New York judgment or decree as to support that action. Article 4, section 1, of the Constitution declares that 'full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state,' and that 'the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof. ' By the act of May 26, 1790, c. 11, 1 Stat. 122, as amended and incorporated in section 905 of the Revised Statutes (U.S. Comp. St. 1901, p. 677) it is provided that the records and judicial proceedings of the courts of any state, when duly authenticated, 'shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken. ' It appears from the record that the judgment on the verdict in the court below includes $2,130 representing alimony and maintenance for seventy one weeks, at the rate of $30 per week, as adjudged and decreed in the New York suit, and, further, that of the above sum of $2,130 only $120, or four weeks' alimony and maintenance was payable on the rendition of the New York judgment or decree. The balance, amounting to $2,010, represented alimony and maintenance which was not then payable, but only to accrue thereafter. It appears that under the statutes of New York the judgment or decree, so far as it directed the payment of alimony and maintenance not then accrued or payable could at any time thereafter be annulled, varied or modified by the court rendering it. It, therefore, was not a conclusive and final judgment or decree with respect to the sum of $2,010, representing alimony and maintenance for sixty seven weeks accruing after its rendition. It did not constitute a fixed, unconditional and absolute liability for its payment. Any rule which would allow suit to be maintained in another state on such a judgment or decree for future alimony and maintenance, would directly tend to the creation of confusion, embarrassment and conflict between courts. The Supreme Court of Illinois in Barclay v. Barclay, 184 Ill. 375, well said with respect to the liability to pay alimony which had become due under a decree providing for future alimony:

'The decree for alimony may be changed from time to time by the chancellor, and there may be such circumstances as would authorize the chancellor to even change the amount to be paid by the husband, where he is in arrears in payments required under the decree. * * * The peculiar character of the obligation is such that it is always subject to modification by the court in which the decree was entered, according to the varying circumstances of the parties, and no other court could undertake to administer the relief to which the parties are entitled except that having jurisdiction in the original suit. An attempt to do so by such other court would bring about a conflict of authority and a condition of chaos with reference to questions of this character, because no other court would have before it the facts with reference to such change in conditions and as to such original right of the parties.'

In Pennington v. Gibson, 16 How. 65, 14 L.Ed. 847, the court laid it down 'as the general rule, that in every instance in which an action of debt can be maintained upon a judgment at law for a sum of money awarded by such judgment, the like action can be maintained upon a decree in equity which is for an ascertained and specific amount,' but, in referring to Hugh v. Higgs, 8 Wheat. 697, 5 L.Ed. 719, where it was held that no action at law was sustainable 'on the decretal order of the Court of Chancery,' said:

'It might very well be error to allow the action of debt upon a decretal order of the chancery, and yet perfectly regular to sustain such an action upon the final decree. The former is subject to revision and modification, the latter is conclusive upon the rights of the parties.'

We are well satisfied that, aside from the operation of the constitutional and legislative provisions touching the faith and credit to be given to the records and judicial proceedings of the courts of other states, when duly authenticated, no action was sustainable in Pennsylvania on the New York judgment or decree so far as it embraced alimony and maintenance not then accrued. And we are equally well satisfied that such constitutional and legislative provisions do not lend any support to an action in Pennsylvania for the recovery of such alimony...