Peeples v. Peeples, 38736
| Decision Date | 05 April 1961 |
| Docket Number | No. 38736,No. 2,38736,2 |
| Parties | Osella K. PEEPLES v. D.C.PEEPLES |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. A copy of the judgment of a court of a sister state attested by the clerk of such court with a certificate by one of the judges of the court wherein such judgment was rendered that such attestation is in due form is sufficient to authorize its admission in evidence even though the judge signing the certificate was not the chief or presiding judge of such court. 28 U.S.C.A. § 1738.
2. (a) 'Full Faith and Credit,' as that term is used in Art. IV, Sect. I of the Constitution, means that a judgment in one State must be given the full effect it is given by law in the State of its origin in any other State.
(b) Where such a judgment is pleaded in a court of this State and on its face recites requisite jurisdictional facts, the defendant sued thereon, in order to raise an issue as to the jurisdiction of the court rendering the judgment, must plead and prove that such facts were legally insufficient under the law of the State of origin to give the court wherein the judgment was entered jurisdiction.
(c) The pleadings and affidavits introduced in this case by the defendant were not sufficient to raise such an issue, and the trial court erred in entering a summary judgment for the defendant based thereon and in refusing to enter a summary judgment for the plaintiff.
Osella K. Peeples filed suit against Duncan C. Peeples in the Superior Court of Screven County. She alleged that the defendant was indebted to her in the sum of s1,125, plus interest in the amount of s32.80, on a judgment obtained by her in the Eleventh Judicial Circuit in and for Dade County, Florida, on January 8, 1960, and that said judgment was unsatisfied and the defendant had neglected to pay the same. She attached to her petition a copy of the judgment from which it appears that it was rendered on the plaintiff's claim for alimony after the issuance of a rule nisi dated November 23, 1959, directing the defendant to show cause why he should not be adjudged in contempt of court, or, in lieuthereof, a judgment entered against him for accrued alimony. The judgment recites 'that the defendant in this cause was served by a certified mail with a copy of the petition and rule to show cause.' The defendant filed his answer, which he subsequently amended, and the parties having each made motions for a summary judgment, the trial court, after hearing argument, overruled the plaintiff's motion and sustained the defendant's motion. The assignment of error in this court is to that judgment.
W. Colbert Hawkins, Sylvania, for plaintiff in error.
Hilton & Hilton, L. H. Hilton, Sylvania, for defendant in error.
1. The defendant in error contends that the copy of the foreign judgment sued on and attached to the plaintiff's petition as an exhibit was not properly authenticated as provided for in Code § 38-627. In this connection he contends that that Code section requires that the attestation of the clerk appended to the copy of the judgment must be authenticated by the certificate of the chief justice, or presiding magistrate, of any court that has more than one judge, and that where, as shown by the affidavits introduced by the defendant in support of his motion for a summary judgment in the case the court wherein the judgment was entered has 14 judges and that the chief judge, or presiding judge, thereof did not sign the certificate, such certificate was insufficient to authorize the introduction of the copy of the judgment in evidence. In support of this position, counsel for the defendant in error cite the case of Brown v. Beckner, 56 Ga.App. 662, 193 S.E. 356. In that case it was held that, under the provisions of Code § 38-627, a copy of a judgment of a foreign court, attested by the clerk and authenticated by one of two judges of the court rendering the judgment whose certificate did not show that he was the chief or presiding judge of the court, was improperly admitted into evidence.
Code § 38-627 as contained in the original Code of 1933 was taken from the Acts of Congress of May, 1790 and March, 1804, as embodied in U. S. Revised Statutes, § 905, and in former § 687 of Title 28 of the U.S.C. These acts of Congress were embodied in our Code pursuant to the provisions of the Full Faith and Credit Clause of the U. S. Constitution, which provides Art. IV, § 1, Par. 1 of the U. S. Constitution. Code § 1-401. It was consistently held in construing and applying former § 687, supra, that while it was merely cumulative of other methods by which the public acts of sister States might be proved in the courts of a State, and that the States might by law and by the application of common-law principles provide for other, and less stringent, methods of proof and so comply with the Full Faith and Credit Clause, that such enactments could not be enforced so as to require a party relying upon such public acts of the sister State to observe any greater formality in proving them than was required by the Federal law, Goodwynn v. Goodwynn, 25 Ga. 203, 206; Kingman v. Cowles, 103 Mass. 283; Brown v. Chicago & Northwestern Ry. Co., 129 Minn. 347(2), 152 N.W. 729; Carpenter v. Ritchie, 2 Wash. 512, 28 P. 380; Block v. Schafter, 62 Okl. 114, 162 P. 456.
By the act of June 25, 1948, c. 646, 62 Stat. 947, former § 687 of Title 28 of the U.S.Code was revised and became § 1738 so that, as revised, paragraph 2 thereof reads as follows: 'The records and judicial proceedings of any court of any such State, Territory or Possession, or copies thereof, shall be proved or admitted in other courts within the United States and its Territories and Possessions by the attestation of the clerk and seal of the court annexed, if a seal exists, together with a certificate of a judge of the court that the said attestation is in proper form.' 28 U.S.C.A. § 1738. (Italics ours.) This revision clearly eliminates the requirement of the former § 687, as construed in Brown v. Beckner, supra, that the certificate of the judge that the attestation of the clerk, in due form, be made by the chief justice or presiding magistrate of a court having more than one judge and merely requires that such certificate be made by any judge of the court wherein the judgment sued on was rendered. It follows that, if the Brown case was ever the law it is no longer such, since under the rules of law announced in the cases cited above this State cannot by merely failing or refusing to amend Code § 38-627 place greater restrictions upon a party seeking to rely on a foreign judgment than are imposed by the procedure enacted by Congress pursuant to the provisions of the Full Faith and Credit Clause of the U. S. Constitution. The exhibit to the petition in the instant case is a judgment for amounts of alimony in arrears due the plaintiff, Osella K. Peeples, by the defendant, Duncan C. Peeples. That judgment appears upon its face to have been entered in the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida on January 8, 1960, and signed by J. Fritz Gordon, Circuit Judge. This judgment is authenticated by the following attestation:
'State of Florida,
'I, B. Leatherman, Clerk Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, do hereby certify that the above and foregoing is a true and correct copy of the final judgment filed January 8, 1960 in Chancery Order Book 1429 on page 551 in the cause wherein Osella K. Peeples is plaintiff and Duncan C. Peeples is defendant, bearing Chancery No. 168705.
'All according to the records and filed in my office.
'In witness whereof, I have hereunto set my hand and official seal this the 18th day of January, A.D. 1960.
'B. Leatherman
'Clerk Circuit Court.'
This attestation is certified to in the following form:
'State of Florida
'I, the undersigned, Judge of the Circuit Court of the Eleventh Judiciall Circuit of the State of Florida, in and for the County of Dade, do hereby certify that said Court of record, and having a Clerk and a seal; that E. B. Leatherman, who signed the foregoing attestation, is the duly elected and qualified Clerk of the said Circuit Court of the County of Dade and State of Florida, and was at the time of signing said attestation; that his said signature thereto is entitled to full faith and credit.
'And I further certify that said attestation is sufficient and in due form of law.
'Witness my hand and official signature, this the 18th day of January, A. D., 1960.
'J. Fritz Gordon
'Judge of ...
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