DeVall v. DeVall

Opinion by Mr. Chief Justice Moore. 1. 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. Section 1, Article IV, Constitution of United States. Pursuant to this authorization, the manner of authenicating 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. Section 750, B. & C. Comp. 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 — 134 — 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). 2. The full faith and credit clause of the organic law of the United States and the act of Congress passed in conformity therewith (Section 1, Article IV, Constitution United States and Rev. St. Section 905, U. S. Comp. St. 1901, p. 677) 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). 3. As the construction of the full faith and credit clause of the federal constitution 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). 4. 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 or 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. — 135 — 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 Pac. 21: 41 Am. St. Rep. 874.) — 136 — 5. 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, Spears’ 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 eificacy of a judgment of a sister state, or deny an adequate remedy for its enforcement. 6. The rule is settled in this State that in pleading a judgment of a court of special power to hear and determine causes it is not necessary to allege the facts conferring jurisdiction, but it may be averred that such judgment was duly given or made: Section 87, B. & C. Comp.; Fisher v. Kelly, 30 Or. 1, 11 (46 Pac. 146) ; Rutenic v. Hamaker, 40 Or. 444, 450 (67 Pac. 196) ; Ashley v. Pick, 53 Or. 410, 414 (100 Pac. 1103.) When, however, a party alleging a judgment of a subordinate-tribunal elects to set forth the facts conferring power to hear and determine a cause, the pleading must be complete in this- respect and state all the facts necessary to give jurisdiction: Fishburn v. Londershausen, 50 Or. 363, 373 (92 Pac. 1060: 14 L. R. A. (N. S.) 1224.) It will be remembered that the complaint herein avers that the court in Wisconsin which rendered the judgment was a tribunal having general jurisdiction over causes in equity and at law, and sets forth certain sections of the statutes of that state relating to the granting of divorces and to the bestowing of alimony. 7. The principle prevails in this State that the awarding of permanent alimony on granting a dissolution of the marriage contract must be found in the statute conferring — 137 — the right: Northcut v. Lemery, 8 Or. 316, 323; Weber v. Weber, 16 Or. 163, 164 (17 Pac. 866) ; Huffman v. Huffman, 47 Or. 610, 615 (86 Pac. 593: 114 Am. St.Rep. 943). The same rule obtains in Wisconsin: Barker v. Dayton, 28 Wis. 367, 379; Hopkins v. Hopkins, 39 Wis. 167, 171; Bacon v. Bacon, 43 Wis. 197, 202. 8. The decisions of the court of last resort in Wisconsin, on the subject under consideration, were not offered in evidence and hence they have been examined only so far as they interpret the rules of the common law existing in that state, independently of its statutes: Kelley v. Kelley, 161 Mass. 111 (36 N. E. 837: 25 L. R. A. 806, 808: 42 Am. St. Rep. 389.) 9. When a court of general jurisdiction takes cognizance of a cause pursuant to statutory authority and not in conformity with the principles of the common law, such tribunal becomes an inferior court, and its proceedings in such cases are subject to all the incidents applicable to a court of that kind, and, in order that its adjudications may be invulnerable to attack, its record must affirmatively show that jurisdiction of the person against whom the judgment was rendered, was secured in the manner prescribed, for no presumptions can be invoked to supply any omissions in this particular: Heatherly v. Hadley, 4 Or. 1, 14; Odell v. Campbell, 9 Or. 298, 300; In re Goldsmith, 12 Or. 414, 417 (7 Pac. 97: 9 Pac. 565) ; Furgeson v. Jones, 17 Or. 204, 212 (20 Pac. 842: 3 L. R. A. 620: 11 Am. St. Rep. 808) ; White v. Espey, 21 Or. 328, 331 (28 Pac. 71.) 10. As this legal principle is a wéll-recognized rule of the common law predominating in Oregon, which, in the absence of any showing to the contrary, we shall assume is in force in Wisconsin: Kelley v. Kelley, 161 Mass. 111 (36 N. E. 837: 25 L. R. A. 806, 807: 42 Am. St. Rep. 389.) 11. The plaintiff properly set forth, as parts of the complaint, copies of sections of the statute of that state — 138 — relating to divorce, to alimony, and to the manner of securing jurisdiction of the person in certain instances, for a court will not take judicial notice of the statutes of another state, thereby making averment and proof thereof requisite: Goodwin v. Morris, 9 Or. 322, 324; Cressey v. Tatom, 9 Or. 541, 545; Scott v. Ford, 52 Or. 288, 294 (97 Pac. 99) ; Young v. Young, 53 Or. 365, 366 (100 Pac. 656.) The judgment of the Wisconsin court having been authenticated in the manner prescribed, the sections of the statute referred to will be examined, the substance thereof noted and quotations therefrom made, in order to determine what faith and credit would have been given to such adjudication in the state in which it was rendered. The circuit court of that state has jurisdiction of all actions for a divorce: St. Wis. 1898, § 2348. In rendering a judgment for divorce the court may make such further provisions therein as it shall deem just and proper concerning the care, custody, maintenance, and education of the minor children of the parties: St. Wis. § 2362. Upon every divorce, for any cause excepting that of adultery committed by the wife, the court may further adjudge to the wife such alimony for her support and maintenance and such allowance for the support, maintenance, and education of the minor children committed to her care and custody, as it shall deem just and reasonable: St. Wis. § 2364. In all cases where alimony or other allowance shall be adjudged to the wife or for the maintenance or education of the children, the court may provide that the same shall be paid in such sums and at such times as shall be deemed expedient, and may impose the same as a charge upon specific real estate of the party liable, or may require sufficient security to be given for the payment thereof, and upon neglect or refusal to give such security or failure to pay such alimony or allowance, the court may enforce the payment thereof by executions or otherwise, as in other cases: St. Wis. § 2367. After — 139 — judgment providing for alimony or other allowance for the wife and children, the court may from time to time, on petition of either of the parties, revise and alter such judgment respecting the amount of such alimony or allowance and the payment thereof, and may make any judgment respecting any of the said matters which such court might have made in the original action: St. Wis. § 2869. The circuit courts have power to hear and determine, within their respective counties, all civil actions and proceedings ; and they have all the powers, according to the usages of courts of law and equity, necessary to the full and complete jurisdiction of the cause and parties, and the full and complete administration of justice, and to the carrying into effect their judgments, orders, and other determinations, subject to re-examination by the Supreme Court, as provided by law: St. Wis. § 2420. “When a party to an action or proceeding shall have appeared by an attorney the service of papers shall be made upon the attorney.” St. Wis. § 2823. “A voluntary appearance of a defendant is equivalent to a personal service of the summons upon him.” St. Wis. § 2643. The plaintiff’s counsel, relying on these statutory provisions, contend that jurisdiction of the person of the defendant was secured by the court in Wisconsin in the manner prescribed; that the judgment for the sum of $1,008 is final, and such being the case an error was committed in directing a verdict for the defendant. The latter’s counsel deny such assertions and maintain that the statute of Wisconsin does not authorize the rendering of a judgment for arrears of alimony. It will be borne in mind that 10 years after the change was made in the order of allowance, judgment for arrears thereof was given, based on the service of notice to an attorney whose firm had represented the defendant in all the prior proceedings in the suit, but which partnership — 140 — had been dissolved, one member thereof going to the State of Washington, and the other disclaiming any authority further to appear for such client, but that no other attorney had been substituted for them. 12. An examination -of the relation existing between attorney and client and the termination of that connection becomes necessary, in order to ascertain whether or not the judgment of the Wisconsin court was personal, and hence may become the foundation of an action in Oregon. At common law an attorney’s authority to represent his client usually continued a sufficient length of time after an entry of the judgment to enable him to supervise the collecting of the fruit thereof, in case he'was successful in the action: Weeks, Attys. (2 ed.) § 249a. The statute of Oregon recognizes this ancient rule by authorizing an attorney, at any time within three years after the entry of a judgment or decree, to acknowledge satisfaction thereof upon receiving the sum so adjudged to be due his client: Section 1058, subd. 2, B. & C. Comp. 13. So, too, in Wisconsin it was held that the relation of an attorney who had appeared in a cause did not terminate with the rendition of the judgment, but that pursuant to a statute of that state, he was authorized at any time within two years after a judgment had been enrolled to enter satisfaction thereof on the record: Flanders v. Sherman, 18 Wis. 575. Where, however, an attorney has appeared in an action for a party who is defeated, the entry of the judgment therein always concludes his relation to the cause: 3 Am. & Eng. Ency. Law (2 ed.) 330. The limits thus prescribed by the principles of the common law are considered appropriate and such as necessity demands. 14. The decree of the Wisconsin court was conclusive as to the severance of the marriage tie, but it was not final as to the award of alimony or for the maintenance and education of the minor children, in respect to which — 141 — Lhe authority of the defendant’s attorneys who had represented him in the divorce proceedings continued, empowering them, in the absence of any notice of retirement or substitution, to apply to that court for a reduction in, or a remission of, the sum of money directed to be paid monthly, and to resist any request by the plaintiff for an increase thereof. The conclusion thus reached is based on the principle that when a court has acquired full jurisdiction of a cause, its power to hear and determine the matter at issue continues until the case is finally determined, though the exercise of its jurisdiction may for a time be suspended it is never abandoned, and when resumed its action is within the limits of its power, and not vulnerable to collateral attack: Black, Judg. § 912; 11 Cyc. 690. It is possible that a husband who is required by a Wisconsin court, on granting a divorce, to contribute to the support of his children or to that of their mother, might have no real property in that state which could be burdened with a decretal lien, and he might be unable to secure the payment of any definite sum'in gross, awarded for that purpose (St. Wis. 1898, § 2367), but upon being required to pay a monthly or other periodical stipend he could, from his wages, comply with the terms of the order. If, under the circumstances supposed, a party who was required to make regularly recurring payments could depart from Wisconsin, leaving no person authorized to represent him, and remove to another state, he might avoid the obligation which the marital relation requires and the parental duty enjoins, and thus escape the liability which the court imposes. To prevent the possibility of such apprehended evasion of legal obligations, the statute of the state where the judgment was given authorizes the service of papers upon the attorney who has appeared for a party to an action: St. Wis. 1898, § 2823. 15. It is the duty of an attorney of record to notify the attorney for the adverse party of his retirement from a — 142 — cause, and, until he does so, the service of notice upon him is effectual: Boyd v. Stone, 5 Wis. 240, 244. In the absence of such notice or order of substitution, when it appears from the record that certain attorneys have been acting for a party all through a cause and so recognized, it cannot be said that they are not empowered to represent him: Hoppin v. First Nat. Bank, 25 Nev. 84, 90 (56 Pac. 1121.) The better rule would seem to be that where an order has been made, requiring the payment of permanent alimony or maintenance in installments, the attorney who has represented the party commanded to make such contributions should not be permitted to withdraw from a case after the divorce has been granted, without leave of court, and its consent ought not then to be given until another attorney had been substituted. By pursuing the practice suggested, when the statute, as in Wisconsin, permits the service of a notice upon an attorney who has appeared for a party, an allowance of alimony, if not paid as required, may become a personal judgment for the arrears thereof against such party, and they form the basis of an action in another state. The procedure thus indicated is not novel, for it has been held that after an attorney’s name has been entered of record, as the representative of a party to a cause, he cannot withdraw his appearance without the consent of the court: United States v. Curry, 6 How. 106, 111 (12 L. Ed. 363) ; Hickox v. Fels, 86 Ill. App. 216, 224. 16. It will be recalled that Flett & Porter, as partners, represented the defendant at the trial of the divorce case and also when the alteration was made in the monthly allowance for maintenance, and that the firm was thereafter dissolved, Flett removing to the State of Washington. These attorneys having, as copartners, accepted from the defendant a retainer, their contract with him was joint, requiring of each the performance of such service as was required, which employment continued — 143 — until the ultimate conclusion of the cause, unless sooner determined: Weeks, Attys. (2 ed.) § 244. It is possible that Flett’s control of the case terminated by his permanent removal from Wisconsin (Chautauqua County Bank v. Risley, 6 Hill [N. Y.] 375), but however this may be, Porter’s authority continued, and no notice of his retirement having been given, the plaintiff had the right, under the provisions of the statute hereinbefore quoted, to treat him as still representing the defendant, and the service of the notice upon such attorney was tantamount to a personal service of process upon the client. In reaching this conclusion it must not be forgotten that the defendant appeared in person and by an attorney when the original award of $10 a month for alimony and maintenance was made, and also when such allowance was increased to $18 a month. 17. The remaining questions are whether or not the Wisconsin court was empowered to ascertain the amount of the allowance in arrears, and, if so, is its determination thereof final, and hence enforceable in Oregon? It is maintained by defendant’s counsel that the sections of the statute set forth in the complaint do not authorize the establishment of such alleged deficiency, and that as the power to do so must be found in the enactment, no presumption, in the absence of an averment and proof of the statute, should be indulged to support the record. 18. The authority to grant divorces and to award alimony, though conferred upon a court by statute, carries with it such powers as are expressly given and also such as may necessarily be incidental to its exercise: Erkenbrach v. Erkenbrach, 96 N. Y. 456, 463; Walker v. Walker, 155 N. Y. 77, 80 (49 N. E. 663); Livingston v. Livingston, 173 N. Y. 377, 380 (66 N. E. 123: 61 L. R. A. 800: 93 Am. St. Rep. 600.) We conclude, therefore, that under Section 2369 of the Wisconsin statute, hereinbefore referred to, which provides, in effect, that after an award of alimony — 144 — or allowance has been made, the court may thereafter revise and alter such judgment and make a new determination respecting such matters, which it might have done in the original action, the court of that state possessed plenary power to determine the sum in arrears. 19. In Campbell v. Campbell, 37 Wis. 206, 217, it was held that the rendering of a judgment for arrears of alimony rested in the discretion of the court awarding it. Giving to that decision the conclusive effect to which it is entitled, as a correct exposition'of the rules of the common law, the legal principle announced can have no application to the case at bar, for the discretion referred to was exercised by the Wisconsin court when it pronounced judgment for the sum in arrears. An examination of the statute of Wisconsin (Section 2367) hereinbefore noted will show that upon granting a divorce a court of that state may give alimony, and enforce the payment thereof by execution. A court of equity originally coerced a compliance with the terms of its decree by punishing the party commanded to obey its mandate, but it was powerless to issue an execution for that purpose. Statutes have been enacted, however, authorizing the courts of chancery to issue executions, but in order to do so the decree to be enforced must contain the positive constituents of a judgment at common law and direct the payment of a sum of money by one party to another. Freeman,. Execution (2 ed.) § 10. The award made to the plaintiff by the Wisconsin court was as much a debt of record as any other judgment for money that could have been.given: Barber v. Barber, 21 How. 582, 595 (16 L. Ed. 226.) Jurisdiction of the subject-matter and of the person of the defendant was obtained when the allowance of $18 a month was made. The judgment for arrears of such award was, in effect, a determination of what payments had been made on account thereof and how much money remained due thereon. When the execution was directed — 145 — to be issued on such judgment, pursuant to the authorization of the statute of Wisconsin, the command, in our opinion, made the determination as to the sum of $1,008 final. Mr. Thomas M. Dill for the motion. Mr. A. S. Cooley, contra. 20. A diversity of judicial utterance formerly existed as to the right to maintain an action at law for the recovery of money based on a decree of a court of equity of another state, but whatever the rule originally was or may be in other jurisdictions, it is settled in Oregon that such an action can be upheld: Meyer v. Brooks, 29 Or. 203 (44 Pac. 281: 54 Am. St. Rep. 790.) The principle thus maintained is supported by. authority. Black, Judgments, § 962; Freeman, Judgments, (3 ed.) §434; Howard v. Howard, 15 Mass. 196; Mutual Fire Ins. Co. v. Newton, 50 N. J. Law 571 (14 Atl. 756) ; Evans’ Adm’x v. Tatem, 9 Serg. & R. (Pa.) 252 (11 Am. Dec. 717.) Believing that an error was committed in directing a verdict for the defendant, the judgment is reversed and a new trial ordered. Reversed. Decided September 13, 1910. On Motion to Retax Costs. [110 Pac. 705.] Opinion by Mr. Chief Justice Moore. 21. This is a motion to retax costs. The judgment herein was reversed, whereupon plaintiff’s counsel served and filed a cost bill, containing inter alia, the following items: “To stenographer’s fee, $9.00; to bill of exceptions original copy, 120 folios, $12.00; to transcript for Supreme Court, 234 folios, $23.40.” Our clerk disallowed these charges, and to review his action in that particular this motion was interposed. — 146 — Considering the several demands in their order, it is settled that in a law action the sums of money paid by a party to the official reporter as his legal fees must be taxed in the lower court and cannot be entered here as a disbursement: Sommer v. Compton, 53 Or. 341, 344 (100 Pac. 289); McGee v. Beckley, 54 Or. 250, 255 (103 Pac. 61.) 22. When a transcript of the testimony has been filed in the lower court, it is incumbent upon the appellant, if he desires to review the judgment, to prepare a bill of exceptions for settlement and allowance by the judge, and the expenses incident to the clerical work form no part of the disbursements on appeal: Ferguson v. Byers, 40 Or. 468, 477 (67 Pac. 1115: 69 Pac. 32) ; Allen v. Standard Box & Lumber Co., 53 Or. 10, 19 (96 Pac. 1109: 97 Pac. 555: 98 Pac. 509.) 23. It satisfactorily appears that plaintiff’s counsel personally prepared the transcript on appeal, to which the clerk appended his certificate, and for which the sum of $1 was paid, and that no other liability was incurred on account thereof. It is only such legal charges as have been paid or promised to the clerk for the labor necessitated in preparing a transcript on appeal that may be recovered as a disbursement. No sum of money was paid to that officer except $1, and that item appears in the cost bill. If plaintiff’s counsel.undertook the work on his own account, all expenses thereby saved, in case he were defeated, inure to the benefit of the adverse party. The items referred to were properly rejected, and the action of the clerk is approved. Reversed : Motion to Retax Costs Denied.