Creaden v. Krogh

44 S.E.2d 136 | Ga. Ct. App. | 1947

1. An order and decree for alimony from another State, providing for future weekly payments, is such a decree as is enforceable in this State under the full faith and credit clause of the Constitution of the United States, as to such payments as have become due and remain unpaid, when a suit is instituted in a court of competent jurisdiction in this State, on a judgment entered in another State for the total of the unpaid payments which have accrued to the date of the judgment rendered in such other State. Roberts v. Roberts, 174 Ga. 645 (163 S.E. 735); McLendon v. McLendon, 66 Ga. App. 156 (17 S.E.2d 252).

2. To maintain such a suit, it is not necessary to show an authenticated copy of the record of the entire divorce and alimony proceedings, but a prima facie case is made by pleading and proving a properly authenticated copy of the judgment itself. McLendon v. McLendon, supra.

3. Where a suit is brought in this State upon a judgment rendered in another State, an answer couched in terms of a general denial is equivalent to a plea of nul tiel record, and the answer is not subject to be stricken on demurrer. Nor is it subject to be stricken for the reason that it sets up many and multifarious defenses. Code, § 81-305; Little Rock Cooperage Co. v. Hodge, 112 Ga. 521 (37 S.E. 743); Hicks v. Hamilton, 3 Ga. App. 112 (59 S.E. 331).

DECIDED SEPTEMBER 13, 1947. Mrs. Gertrude Louise Krogh brought suit against Edward K. Creaden in the Civil Court of Fulton County upon a judgment for alimony obtained in a divorce proceeding in the Chancery Division of the Superior Court of Cook County, Illinois, in which suit she attached a duly authenticated copy of the judgment obtained in the State of Illinois, and prayed for a judgment in the principal sum of $1050, the sum being awarded in the judgment, plus interest at seven percent per annum from the date of the judgment.

The defendant filed an answer denying that he was indebted to the plaintiff in any sum on the judgment, and further setting up that, if he was indebted under the judgment, he had supported one of the children involved in the alimony proceeding for twenty two weeks and paid his railroad fare to and from his home, and had taken charge of both children from June 9 to June 21, 1946, and that he had paid to the plaintiff $1645 on the alimony decree since its rendition on February 21, 1944, and that of the date of the plaintiff's suit he was only due her $502 under the judgment sued upon.

The case was tried before the judge, without the intervention of a jury. The plaintiff testified that the defendant had not paid her anything to apply on the judgment, and that she was suing him for $1050, which he owed her as arrearage. The defendant admitted his appearance in the original case which was filed against him in Cook County, Illinois, but testified that he did not appear in court at the time the judgment being sued upon was rendered against him.

It appears from the record that the original decree awarding alimony in the sum of $30 per week to the plaintiff in this case, and if she should remarry the sum of $20 per week, for the support of her minor children, was entered on February 21, 1944, and that the judgment being sued upon in this case was entered on June 28, 1946, based upon the decree entered on February 21, 1944.

The plaintiff demurred generally to the answer of the defendant upon the ground that the answer did not set forth any defense to the petition, and specially to certain paragraphs of the answer upon the ground that they were irrelevant, constituted no defense, were argumentative, and contained many and multifarious purported defenses. These demurrers were overruled by the trial court. A motion for new trial was filed by the defendant, which was subsequently amended, assigning as error certain documentary evidence, which was admitted over objection, and assigning as error a ruling by the trial court wherein it refused to allow the defendant to prove certain payments made on the decree granted on February 21, 1944, and certain claims which the defendant contended should be set off against the judgment sued upon.

The defendant in his bill of exceptions assigned error on the overruling of his motion for new trial, as amended, and the plaintiff by cross-bill of exceptions assigned error on the overruling of her demurrers to the answer. 1. A decree for alimony which provides for future weekly payments, and upon which a judgment is subsequently granted as to the accrued unpaid payments in another State, is enforceable in this State when a suit is instituted thereon under the proper pleadings in a court of competent jurisdiction in this State. Roberts v. Roberts;McClendon v. McClendon, supra.

2. To maintain such a suit it is not necessary to show an authenticated copy of the record of the entire divorce and alimony proceedings, but a prima facie case is made by pleading and proving an authenticated copy of the judgment itself.McClendon v. McClendon, supra. The defendant's objection to the introduction of the authenticated copy of the decree entered on February 21, 1944, and a judgment thereon entered on June 28, 1946, was without merit. According to the common-law rule, adhered to at the present time in most of the States, the presumption in favor of the jurisdiction of a court of general jurisdiction is conclusive, and its judgment can not be collaterally attacked where no want of jurisdiction is apparent of record. Whenever the record of such a court is merely silent upon any particular matter, it will be presumed, notwithstanding such silence, that whatever ought to have been done was not only done, but that it was rightly done. So, where the judgment contains recitals as to the jurisdictional facts, these are deemed to import absolute verity unless contradicted by other portions of the record. Consequently, such a judgment can not be collaterally attacked in courts of the same State by showing facts aliunde the record, although such facts might be sufficient to impeach the judgment in a direct proceeding against it. The validity of a judgment when collaterally attacked must be tried by an inspection of the judgment roll alone, and no other or further evidence on the subject is admissible, not even evidence that no notice had been given. Owenby v. Stancil, 190 Ga. 50 (8 S.E.2d 7). The defendant made no attempt to prove that he had made any payments upon the judgment sued upon, but attempted to prove that he had made certain payments upon the original decree entered February 21, 1944, and attempted to set up certain amounts which he was entitled to receive as credits against the judgment, upon the ground that he had kept and maintained the minor children for a stated period of time. Voluntary expenditures in behalf of children involved in any alimony judgment would not give a father against whom such a judgment was entered any claim or demand which might be set up as a part payment on the judgment; and especially is this so when such voluntary expenditures were made before the rendition of the judgment, as the record shows in the present case. The court properly refused to allow the defendant to prove alleged payments prior to the date of the judgment sued upon, and to set off voluntary expenditures made upon his children prior to the date of this judgment. The plaintiff made out a prima facie case by pleading and proving the authenticated copy of the judgment sued upon, and since no payments on this judgment were alleged or proved by the defendant, the court, sitting without a jury, did not err in rendering judgment for the plaintiff in the amount sued for, together with the interest thereon. McClendon v. McClendon, supra; Hawkins v. Countyof Sumter, 57 Ga. 166.

3. The court properly overruled the demurrers to the answer because it contained a general denial. The answer should not have been stricken for the reason that it set up many and multifarious defenses, because even if it was defective in several paragraphs, but contained one paragraph which presented any defense, it would be error to strike the answer on general demurrer. The answer of the defendant in this case was sufficient to set up a valid defense, and although the defendant did not prove by any competent evidence any defense to the petition of plaintiff, the answer was sufficient to withstand the demurrers. Code, § 81-305;Little Rock Cooperage Co. v. Hodge, supra; Hicks v.Hamilton, supra.

Judgment affirmed on both the main bill of exceptions and thecross-bill. MacIntyre, P. J., and Gardner, J., concur.