McAlister v. McAlister

• Decision Date: 25 March 1926
• Docket Number: 6 Div. 447
• Citation: 107 So. 843,214 Ala. 345
• Parties: McALISTER v. McALISTER.
• Court: Alabama Supreme Court

107 So. 843

214 Ala. 345

McALISTER v. McALISTER.

6 Div. 447

Supreme Court of Alabama

March 25, 1926

Appeal from Circuit Court, Jefferson County; Joe C. Hail, Judge.

Action by Mrs. T.D. McAlister against T.D. McAlister. From a judgment for defendant, plaintiff appeals. Affirmed.

S.J Stiggins, of Maitland, Fla., and W.A. Weaver and T.J. Lamar both of Birmingham, for appellant.

Palmer Daugette, G.C. Boner, and Smith, McCary & Tharp, all of Birmingham, for appellee.

SOMERVILLE J.

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...