De Vall v. De Vall

• Decision Date: 14 June 1910
• Citation: 109 P. 755,57 Or. 128
• Parties: DE VALL v. DE VALL.
• Court: Oregon Supreme Court

109 P. 755

57 Or. 128

DE VALL v. DE VALL.

Supreme Court of Oregon

June 14, 1910

Appeal from Circuit Court, Wallowa County; J.W. Knowles, Judge.

Action by Beatrice De Vall against Thomas De Vall. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.

This action was brought in the circuit court for Wallowa county by Beatrice De Vall against Thomas De Vall, to recover a sum of money determined to be due her by a trial court of another state. It appears that by consideration of the circuit court of Lincoln county, Wis., in a suit brought for that purpose in which the defendant herein was defendant and appeared in person and by an attorney, a decree was passed October 1 1895, granting to the plaintiff herein, who was plaintiff in that suit, a divorce a vinculo, giving to her the custody of four minor children, and awarding her $10 a month for their education and maintenance and for her support. The decree provided, however, that it was not absolute either as to the custody of the children, or in respect to the amount to be paid to the plaintiff for her support, or their maintenance and education. That court on October 9, 1897, upon plaintiff's application therefor and the defendant's appearance in person and by an attorney, directed that, until further ordered, the award so made be increased to $18 a month. The last command not having been fully obeyed, the plaintiff petitioned that court for a recovery of the sum of money in arrears, alleging that on April 1, 1907, it was $1,008. Notice of the application was served upon M.C Porter, an attorney, who later filed an affidavit disclaiming any authority further to act for the defendant. The record of that court recites, substantially, that Porter was a member of the firm of Flett & Porter, who were officers of the court and at all times had been the attorneys of record for the defendant in the divorce suit, and that no other attorneys had been substituted for them. Based on such notice that court on October 8, 1907, determined that the defendant pay to the plaintiff $1,008, the amount remaining due April 1 1907, and that she have execution therefor.

The complaint herein alleges that the Wisconsin court is one of general jurisdiction over matters in equity and at law; sets out the proceedings hereinbefore mentioned; avers that the defendant has not paid the sum of $1,008 or any part thereof and that by virtue of the Wisconsin statute of 1898, chapter 109, such adjudication is final and has the force and effect of a judgment at law for the recovery of money. Allusion is then made to certain sections of that statute, copies of which are attached as an exhibit. The prayer demands judgment for the sum so determined by the Wisconsin court with interest thereon from April 1, 1907, at 6 per cent. per annum, and for the costs and disbursements of this action.

The answer denies the averments of the complaint and alleges that about June 12, 1901, the defendant became a resident of Wallowa county, Or., where he has ever since resided; that he never thereafter had been within the state of Wisconsin; that in the year 1902, the partnership mentioned in the complaint was dissolved, and W.H. Flett, who had been a member thereof removed to Seattle, Wash., where he has since resided; that after the issuance of the order for the payment of $18 a month, neither M.C. Porter nor any other attorney has had authority to appear for or represent the defendant in any court in Wisconsin; that the defendant has not, since that time, been served with, or admitted the service of, any notice or process issued from any such court, nor has he appeared in any manner therein; and that if any judgment or decree has been rendered against him since October 9, 1897, by such court, it was without jurisdiction of his person.

The reply having put in issue the allegations of new matter in the answer, the cause was tried, resulting in a judgment for the defendant, and the plaintiff appeals.

Thomas M. Dill, for appellant.

A.S. Cooley, for respondent.

MOORE, C.J. (after stating the facts as above).

Full faith and credit is required to be given in each state to the judicial proceedings of every other state, and Congress is empowered to prescribe the manner in which the actions of such tribunals shall be proved, and the effect thereof. Const. U.S. art. 4, § 1. Pursuant to this authorization, the manner of authenticating judicial records has been ordained, and it is declared that when attested as prescribed, such enrollments shall be given the degree of faith and credit in every court within the United States that they have in the tribunals from which they are taken. Rev.St. § 905 (U.S.Comp.St.1901, p. 677). Our statute reiterates this rule but asserts that a judgment of another state can only be enforced in Oregon by an action, suit, or proceeding. B. & C. Comp. § 750. It will thus be seen that a memorandum of judgment of a sister state cannot, by being recorded in a lien docket in Oregon, become an incumbrance on real property therein or authorize the issuance of an execution based on such mere entry, but the enactments referred to make a valid judgment of another state such an obligation that when a copy thereof is properly authenticated it may afford the foundation of an independent action in a sister state. Cole v. Cunningham, 133 U.S. 107, 112, 10 Sup.Ct. 269, 33 L.Ed. 538. The full faith and credit clause of the organic law of the United States and the act of Congress passed in conformity therewith serve to establish a rule of evidence, rather than to fix a criterion of jurisdiction. Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 291, 8 Sup.Ct. 1370, 32 L.Ed. 239. As the construction of such clause involves a federal question, its interpretation by the Supreme Court of the United States is controlling. Brigham v. Henderson, 1 Cush. (Mass.) 430, 48 Am.Dec. 610.

In an action of debt, brought in the circuit court for the District of Columbia, upon a judgment of the Supreme Court of New York, a plea of nil debet was interposed and it was on general demurrer determined to be ineffectual, a majority of the Supreme Court of the United States intimating that the full faith and credit clause of the Constitution of the general government contemplated a power in Congress to give a conclusive effect to a duly authenticated judgment of another state. Mills v. Duryee, 7 Cranch, 481, 484, 3 L.Ed. 411. In that case Mr. Justice Johnston, fearing that the implied acceptance in all cases of a plea of nul tiel record, as the only defense available in such an action, might at some future time be understood to preclude all inquiry into the jurisdiction of the court giving the judgment, dissented on the ground that the power of judicial tribunals to hear and determine causes could not be exercised over property not within reach of their process, or over persons not owing them allegiance, or not subject to their jurisdiction by being found within their limits.

The only question involved in that case was the sufficiency of the plea of nil debet in an action of debt based on a judgment of another state, and hence the inquiry of jurisdiction was not included, and any discussion of the matter was extrajudicial. The doctrine promulgated by the majority of the court in that case was reannounced in another opinion. Hampton v. McConnel, 3 Wheat. 234, 4 L.Ed. 378. In explaining the irrefutable character of the adjudication by a court of another state, it was subsequently held that in the two cases last cited, it was meant by the conclusiveness of the judgment that the determination of the causes related to a decision on the merits only, to which full faith and credit was required to be given. McElmoyle v. Cohen, 13 Pet. 312, 326, 10 L.Ed. 177. Any doubt on this subject was finally put at rest by a later opinion stating that neither the full faith and credit clause spoken of nor the act of Congress mentioned prevented an inquiry into the jurisdiction of the court of a sister state by which a judgment rendered therein was offered in evidence, and that a copy of such record, though duly authenticated, might be contradicted as to the facts necessary to give the court rendering the judgment power to hear and determine the cause, or if it appeared in a collateral proceeding in another state, that such facts did not exist, the record would be a nullity, notwithstanding it might contain recitals that they did exist. Thompson v. Whitman, 18 Wall. 457, 469, 21 L.Ed. 897. To the same effect see, also: Public Works v. Columbia College, 17 Wall. 521, 528, 21 L.Ed. 687; Christmas v. Russell, 5 Wall. 290, 305, 18 L.Ed. 475; Cole v. Cunningham, 133 U.S. 107, 112, 10 Sup.Ct. 269, 33 L.Ed. 538; Grover & Baker Sewing Machine Co. v. Radcliffe, 137 U.S. 287, 294, 11 Sup.Ct. 92, 34 L.Ed. 670; Simmons v. Saul, 138 U.S. 439, 448, 11 Sup.Ct. 369, 34 L.Ed. 1054. The legal principle thus announced has been recognized by this court. Foshier v. Narver, 24 Or. 441, 443, 34 P. 21, 41 Am.St.Rep. 874.

The full faith and credit clause of the Constitution of the United States and the resultant federal legislation having been held by the highest judicial tribunal of the general government to be a rule of evidence, and the degree of proof thereof regulated, an action founded on a judgment of a sister state must be governed by the rules of pleading prevailing where such action is brought. Napier v. Gidiere, Speers, Eq. (S.C.) 215, 40 Am.Dec. 613, 616. This declaration must be accepted with the qualification, however, that the procedure obtaining in the latter state cannot impair the efficacy of a judgment of a sister state, or deny an adequate remedy for its enforcement.

The rule is settled in this state that in pleading a judgment of a court of...