*1 contended, employee which the had violated in the defendant alleged wrong. commission cases This other cited company wholly relative to violation'of rules are irrelevant. company There was no claim of or violation of a rule rule Corp. finally, Employers here. And Liab. Assur. v. Henderson, App. 238, supra, is a compensation workmen’s case in policeman which a sought compensation and was awarded for an injury cleaning gun received a city required while which the carry part him to as a part his duties. It was no of Dish duty aroon’s a carry gun closing service station for employer, his nor he even was authorized do so—cer tainly required. he was not wholly so This case is inapposite.
As to Company American for Oil verdict the defendant was deny demanded. It was error to its motion for not- withstanding the verdict.
amI authorized to Judge Judge state that Chief Felton and join in Whitman this dissent. CONNELL CONNELL. Judge. This case arises
Whitman, of an by Jacque- out action lyne Cook Connell A. Connell on a J. to recover for- eign judgment, as a of record, debt Municipal Court City of the of Augusta, juris- Ga. Defendant’s to the diction was overruled. responsive pleading, Defendant’s as- serting several matters in defense, stricken, pursuant was motion, failing to set forth facts sufficient to constitute a Judgment defense. plaintiff was entered and defendant appeals therefrom. marriage aby herein was terminated final
judgment and decree of total divorce of Rela- the Domestic tions County, Division of Court of Georgia. custody divorce decree awarded the provided children Connell, to Mrs. and also support. child
Mrs. Connell Carolina with the moved South children
established domicile there. She then filed Carolina, Pleas, County, Common Aiken respect, decree with modification divorce among support provisions its based child things, other summons, petition, changed with conditions, C. Connell County, in Aiken Mr. served on Mr. Connell S. stating therein he return,” filed his “answer and *2 objecting to the making special appearance purpose of upon personal service jurisdiction court; of that the the the had further, that the court legally effective, and, him was moved the court jurisdiction of the matter. no He determined, against the court action him. But dismiss the re- made the “answer and of other contentions because thereby the merits, had answered on turn,” that Mr. Connell general rather than making appearance a appearance his right to the and thus assert that special appearance, person jurisdiction had been waived. court had no over the v. upheld appeal. on See Connell This determination was (153 396). Connell, C. 162 SE2d 249 S. it that was
Thereafter Court of Pleas determined the Common modify provisions the authorized under South Carolina of another State based original alimony of an decree judgment providing changed and entered financial conditions payments by child Mr. Connell support for increased the action. payment attorney’s bringing of fees involved in the expressly was made attorney’s fees awarding The judg- attorneys. However, such in favor of Mrs. Connell’s may plaintiff en- the which ment will be construed one 444, 446 Walden, v. Ga. force in her own Walden 171 name. action the 919). basis (155 judgments were These City of of Au- Municipal by Mrs. in the Court Connell appeal by for this in which is the basis gusta, final order Held: Mr. Connell. jurisdiction overruling plea of of no
1. The
Mr. Connell’s
Municipal
Augusta
Court of
is enu-
subject matter
argued
action was
in-
merated as
one
error.
volving
strictly
and other issues
within
alimony, child
jurisdiction
superior
of
courts of this State.
properly overruled.
suit to enforce
was
A
decree
alimony
an
does not make such suit
of
sister State
of record. Mc
case,
simply
it is
action on a debt
rather,
Lawrence
477);
v. McLendon,
Lendon
SE2d
(3) (26
Henderson
SE2d
Lawrence,
2. Mr. Connell asserted below that the of Common Pleas Court
of jurisdiction South Carolina was over him and that issuing orders from said not enforceable him in Georgia. defense on motion, This was stricken action is enumerated as error. record question jurisdiction shows that raised was
in the South Carolina court decided Mr. Connell adversely to him. That Drake determination is conclusive. v. Drake, It was also asserted in (1) complaint defense that states
no claim for (2) rights which relief can be that the granted; between the previously were a final established in Superior and decree of total divorce entered County; (3) Richmond Common that the Court of jurisdiction modify Pleas Carolina was without County; decree (4) complied has at all with the terms defendant times *3 and County conditions of the de- cree. These defenses stricken on which action were motion, is enumerated as error. on, properly sued authenticated and ren- Carolina,
dered competent jurisdiction court of of South must be accorded the same full faith in and credit Tompkins which it would Carolina. v. be accorded (25 Cooper, 247); Morrisett, Ga. Thomas v. 97 631 76 SE Ga. 384.
Most general rule, as a courts, will not applications entertain
modify alimony decrees of foreign requiring courts, instead applications that such first foreign be made to courts ren- dering them. 884, (b). 916, Divorce, 27B CJS 398 §§ Georgia, compare Dyal In v. App. (16 Ga. Dyal, 65 364 53), regarding a foreign alimony SE2d decree, Peeples with Newman, (1) v. (701 749), regarding a for- SE2d eign custody decree. formerly South Carolina was in accord general with the rule. (8 Johnson Johnson, v. S. 194 C. 115 351); (13 SE2d Johnson v. 196 S. 474 SE2d Johnson, C. 318). 134 However, our ALR sister now to be State seems view, regard with foreign decrees established there for local enforcement, her may that and de- entertain termine a foreign alimony modification of the decree 488 foreign court. grounds could asserted in any
on that be 850). (130 SE2d Grossman, v. 242 S. C. Grossman 298 See Supreme as our is not at odds with law, This view af- notwithstanding rendered here has that decrees held subject to parties such fecting rights parties while parties, such as jurisdiction State, of this when one residence lawfully establishes child, her minor mother and over acquires jurisdiction foreign State, gen- control, questions concerning custody, new Stallings Ga. 3 204 Bass, the minor child. eral welfare of (76 (2) Gatlin, Milner v. 109 139 SE2d so acted. court has 860). case, this the South In over all jurisdiction judgment sued was entered with on Georgia. credit parties full faith and and is entitled to interposed striking defenses error There was no regard. Mr. Connell in hearing trial court
4. It also contended that the erred ruling plaintiff’s on motion to and dismiss strike required by law; as assigned hearing not been that for summary motion in effect either a motion a hear- pleadings, or motion for ing expiration days under could not be had before the assigned the motion was 81A-156, nevertheless, Code Ann. § hearing only days appears after thereof. notice appeared the court from record both before objection day assigned argued the motion on the as complaint may be made time- time. No now Service, Bros. hearing. Tire liness of the Mathis Kimbrell App. 399, Eberhardt, Hall, Judgment Jordan, J., P. J., P. Bell, affirmed. Been, J., and JJ., Felton, concur. C. Quillian, Pannell J., dissent. Decided February 26, 1969
Argued September 4, *4 April 4, 1969— Rehearing 12 denied March appellant. Allgood Childs, Allgood, Thomas F. & Ingram,, appellee. Albert G. ex- dissenting. her Mrs. Connell sued Judge, Chief
Felton, alimony and child judgment on a husband South support the ex-husband in the entered seeking County, Ga., increase the amount of improvement children’s to due the defendant’s financial condition. The defendant was served with process in plea South jurisdiction Carolina. filed a to the He grounds. two paragraph plea The first of this reads as follows: “Your respondent hereby special appearance makes a for the purpose making juris- an answer and to return, objecting diction waiving this court in this matter, and without (Emphasis same.” supplied.) plea also to He filed the merits juris- amendment. The trial plea court overruled diction appellant which the appealed Supreme to the Carolina, jurisdiction which affirmed the trial court. The of the South subject Carolina court was attacked as to matter person. interpret As I the decision of that it court, held that no pleas jurisdiction valid to the had been filed for the sole reason that plea plea to the to the merits and jurisdiction, of res judicata were filed and of file all at at were the same time judgment the time rendered the trial that court, only way plea jurisdiction to the could be effective was that completely it be filed and that if it was overruled the itself under numbered Code section could allow time for the filing of plea on the merits. v. Connell; Connell 249 S. C. supra. law in this state at the time South Carolina decision was to the effect filing plea that “The of a to the merits a plea jurisdiction when to the had previously been filed does not jurisdiction waive though plea even to the merits is not expressly made to the jurisdiction.” to the Milam v. Terrell, 214 Ga. ap- same rule plies (Ga. Practice present under Civil Act L. 1966, 81A-112).. pp. 609, 622, amended; Code Ann. While the fact Georgia law is different from that of may a sister State refusing give in all cases justify the sister State’s credit, faith and full facts this case demand give refuse South Carolina’s faith and credit. in this case strikes at the heart of Geor- gia’s public policy; procedural the rule it is based on is and hy- pertechnical patently degree. unreasonable the nth *5 Caro- process. think that since the South due I therefore
violates trial given effect the judgment lina not been should have judgment in this in the action based on the Carolina case South the appellant to attack should have the trial court permitted in the judgment collaterally in this Carolina South Judge join Deen’s appealed trial of here. I also dissent. Railway Alabama, U. S. 294
In Brown Western held that Supreme 100), the 105, 94 LE SC party of a fed- deprive not pleading could practice and rule be- may reverse this court right. Supreme Court eral If against a pleader, Georgia construes an action cause judgment of a give and credit required than our con- pleading ridiculous has a rule of more state which against a pleading pleader. struction of action dissenting. to this obtained Judge, parties Debn, support payments including alimony and a decree of divorce domiciled remained County, Defendant Ga., Richmond moved to County. plaintiff, In 1966 who her he former husband when Carolina, obtained service on South from the see the children and obtained came to that state to change and mod- judgment purporting to court a Carolina pay- providing for an increase ify judgment by attorneys per month, awarding wife’s ments of $150 bringing for Car- attorney fees the South $2,500 additional December order, entered olina modification action. original [Georgia] “It is further ordered that 1967, states: dated hereto November divorce decree hereby respondent so here- amended be and the same is per petitioner $150 the sum of pay in shall be directed minor children of the of each the three month for the marriage.” paid has all defendant here dispute that the is no but
There Georgia decree. The South order by Carolina awarded sums monthly plaintiff, payments $150, increased the arrearage, obtaining any further South Augus- judgment” City in the on a filed a “suit granted decree was county in which divorce same ta, $2,500' seeking $3,250, different recover of which was court, attorney arrearage in the increased amount fees and $750 stricken set defenses were South Carolina. defendant’s for this amount. and a default entered him *6 to First, consider action error for several reasons. I this proof the offered as arrear- default, in no age. judgment on not a judgment sued was for a of per sum certain but month” for each only “$150 three a liquidated children. The thus not on was- Georgia petition amount. requires law that a for modification of Georgia brought a alimony judgment in court which be the by rendered the divorce. Code Ann. plaintiff, 30-220. § bringing the action in another not of state, state residence the of the defendant, seeking and then to enforce the new Georgia county in the in which was rendered but the divorce in a court is Georgia thus allowed to circumvent different Georgia to Georgia. the detriment a Thirdly, of citizen of South Carolina order plaintiff attorney allows the $2,500 in fees Georgia which law specifically does not to be allow collected a modification Georgia of a divorce is decree where the brought by the wife. Code Ann. 30-223. § majority opinion regardless holds that of these facts the South Carolina decree is entitled to faith and credit. grounds reason, however, by its as shown cited, the cases on the mistaken premise that the of foreign enforcement a divorce and alimony Georgia decree in and the of enforcement an alteration by foreign Georgia a of a state where decree, the alteration is one which does permit, not should be equated. I do not believe that a nonresident should be allowed, simply by suing in a foreign State, to obtain a for sums not allowed in by procuring foreign method of modify a court to judgment, and then to return to and seek to (in Georgia) illegal enforce the very amount in county plaintiff appeared should have in the first if she instance desired to have decree modified. rigid and literal enforcement of the
“A faith [full credit] regard clause, to the statutes forum, would lead the absurd result that wherever arises, conflict the statute another, state must be enforced each Hence, . cannot enforced its courts. . be own right every require the enforcement of and credit clause does not and, fortiori, another does conferred a statute of state, foreign statutory right such require the enforcement of where court of the forum intrusion enforcement would involve every . public facie, into the affairs of state. . Prima another statutes, in its courts its own state entitled enforce own lawfully challenges right so, to do enacted, and one a state’s who given conflicting because of force statute another clause, state assumes the burden the full faith and credit conflicting upon inter- showing, basis, that of some rational those of superior ests those of involved state are forum.” Law, Constitutional 16 AmJur2d statutory has same Carolina, which Furthermore, South do decrees we for modification requirement *7 be filed in (that petition for modification must is, that the rendered) has itself original judgment was in which under like circumstances. it recognized not be bound that would supra, a Although Grossman, 242 S. C. Grossman foreign payments proceeding partitioning alimony based the court spouse allowed, and children was between a present subject is page at decree observed “Since 306: not re- that we are Ohio, generally it is held modification of the Federal Con- quired under full faith and credit clause support such payment of arrears of under stitution to enforce Separation, Sections 974 AmJur., a decree. Divorce 17A specifically, if “More 975.” Cf. 24 AmJur2d 979: § unitary or a alimony support child, for or for the of a decree subject to modifi- child is of a wife and award the traditional view entered, in which it the court by cation this re- faith and credit.” In it is not entitled to is that agree- Carolina are Georgia and South of spect only not has South Carolina statutes identical ment. Under given not be to modifiable and credit would held that alimony decree for held: Georgia also has twice “A decree, monthly payments, for future which providing State, of a sister modified, of to the be revoked terms is its own paid amount to thereunder, by rendering be the court de- such cree, is not such a decree as in this under enforceable the full faith and of credit clause the Constitution of the United States, or upon principles Cureton, comity.” Cureton v. Ferster Ferster,
I would reverse. Judge I am that Chief authorized to Felton concurs state this dissent. Rehearing.
On Motion original Judge. rehearing motion for and the Whitman, second for rehearing motion amended motion for re- hearing (the 1969) each amendment filed March They and all hereby appear predicated denied. to be on the Georgia insistence that statute set forth in Code Ann. seq. in et relation to 30-220 the modification Georgia decree of a remedy court is the exclusive available purpose; public policy the statute evidences prevents beneficiary decree from enforcing foreign judgment suit in this state a obtained her in the state wherein and her then she children resided modifying decree, and that in such case the full faith and credit clause Federal Constitution does apply respect of such foreign judgment. enforcement of the of appellant contention is that such enforcement would be contrary public to the policy and, state that the therefore, judgment of the lower court should be reversed and set aside. agree.
With this contention we cannot In opinion our it is unsound and without merit. *8 policy may by statutory and
Public be fixed established en judicial and judicial actments and decisions Glosser v. records. Cummings Powers, (71 230); Johnson, v. Ga. 149 SE2d 218 209 (5) quoting (129 762), Building from Ga. &c. 559 SE2d Service (70 1045). v. Gazzam, 537 SC 94 LE Union 339 U. S. App. (72 also Co. v. Durden, See Mutual Ins. 9 Ga. 797 Life 295). Georgia is a seq. statutory Code Ann. et 30-220 enactment § change relating to or modification of final a decree. 494 its relation to the state in policy of public
It reflects the only undoubtedly refers This statute matter. juris- residence venue
brought personal court in a with judgment. See Georgia alimony Georgia diction in revise 719). (162 This Bugden Bugden, v. Ga. SE2d 224 517 does foreign judgment, does not relate to 30-220) statutory the statute principle (§ view faith and credit clause only, to the full is subordinate Bugden is not question Federal involved Constitution. The application here. has to do with involved This case implementation judgment under effect the South Carolina faith Constitution. the full and credit clause Federal supreme law is the Georgia its Under Constitution Ann. The Code 2-8001. States. the United § Constitution by statutes is subordinate reflected its public policy the State faith and credit clause of the Federal Constitution. 1-401). thereof Code is found in Article Constitution IV § superior or co-ordinate seq. et is Code Ann. 30-220' § clause of the Federal authority full faith and credit with the applied. or Constitution, nor it be so construed can controlling is court The decree of the South contrary ignored or set on the claim that it is cannot be aside Ann. policy of this as evidenced Code public seq. 30-220 et only its is reflected not statu policy of public state judicial also its decisions. above, tory but, as indicated question of the effect and decisions alimony judgment Georgia are enforceability aof entitled to full holding that such numerous be enforced here. will faith and credit in following Lawrence, cases: Lawrence among v. See, others, cited; v. cases Henderson 283), SE2d Krough, (71 210); Creaden 75 Henderson, 209 148 SE2d Ga. (44 Tobin, App. 136); Tobin v. Ga. 568 App. SE2d (156 Johnson, App. (92 SE2d Johnson Supreme Court, from Ga. 147 186), transferred SE2d Georgia judicial decisions, which are evidence of Thus, *9 public policy State, and the full faith credit clause of the Federal accord Constitution, consistent other; with each indeed, apply implement the decisions clause, so judice sub and credit prevail clause must and control in the disposition of the motions rehearing the amendment thereto. adopted by statute the General Assembly and approved (House the Governor March 17, Bill 791), No. amend- ing (Ga. 1964, p. Code 30-220 L. does not 713), require a dif- ferent result. rehearing
Motions denied original opinion adhered to. al. 44020. NEWCOMB et v. PATTILLO. Decided March
Submitted October. Rehearing April denied