29 App. D.C. 258 | D.C. | 1907
delivered the opinion of the Court:
The testimony, in our opinion, shows clearly that Lucy M. Davis was not a resident of Shawnee county, Kansas, when she filed her petition for divorce in the district court thereof, and had not been an actual resident of the State of Kansas for one
The decree of the court of a State having jurisdiction of subject-matter and parties, awarding divorce and, incidentally, alimony, is entitled to the same faith and credit in other States that it has in the State where rendered; and an unconditional and final award of alimony, when the same remains unpaid, may be enforced by appropriate proceedings in other States. Barber v. Barber, 21 How. 591, 16 L. ed. 229; Cheever v. Wilson, 9 Wall. 109, 123, 19 L. ed. 604, 608. Whatever doubt there may have been formerly in respect of the right to maintain an action of debt upon a final decree in equity for a certain and specific sum of money has been set at rest by the Supreme Court of the United States in the following language: “We lay it down, therefore, as the general rule, that in every instance in which an action of debt can be maintained upon a judgment at law for a sum of money awarded by such judgment, the like action can be maintained upon a decree in equity which is for an ascertained and specific amount, and nothing more; and that the record of the proceedings in the one case must be ranked with and responded to as of the same dignity and binding obligation with the record in the other.” Pennington v. Gibson, 16 How. 65, 77, 14 L. ed. 847, 852.
It is the general doctrine that where the final decree for the payment of an ascertained and specific sum, as alimony, is unconditional and remains unpaid, it may be enforced, like ordinary decrees, in an action of debt thereon, as if it were a judgment at law for the recovery of a like sum in an action of debt or assumpsit. Kunze v. Kunze, 94 Wis. 54, 58, 59 Am. St. Rep. 857, 68 N. W. 391; Dow v. Blake, 148 Ill. 76, 39 Am. St.
It is true that in many jurisdictions a decree ordering the payment of a specific sum as alimony is not regarded as an absolute debt in the strict sense that it can only be enforced by execution, .as in the case of ordinary decrees or judgments for money. In this jurisdiction, it is regarded as an order to pay money out of funds or property in the hands of the husband, and not as an ordinary decree for money due by way of debt; hence, though execution may also issue, it is enforceable by attachment, as all decrees in equity formerly were. Tolman v. Leonard, 6 App. D. C. 224, 233. The ruling in that ease applied to the enforcement of its own decree by a court of equity of the District of Columbia. That court, having control of the entire subject-matter, as well as of the parties, might, in its discretion, as it was said, change the amount of alimony awarded, even when in arrears, for good cause shown.
Whether a court of equity in this jurisdiction would have the power to enforce, by attachment of the person of the defaulting defendant, a decree of a court of another State where the like procedure prevails, is a question that we are not required to determine. It does not appear that such is the procedure in the State of Kansas, where the decree was rendered; and there is nothing in the recitals of the decree from which such procedure must be inferred to prevail. For all purposes of its enforcement in this jurisdiction, therefore, the award of alimony is to be regarded as a debt, merely, and enforceable only as such by execution as at law.
It is an unquestioned principle that equity has no jurisdiction in a case where the remedy at law is plain, adequate, and complete. The relations of the parties in this case, as former husband and wife, have been completely dissolved by the decree of •divorce, and the complainant has the plain right to maintain
The decisions of the Supreme Court of the United States, relied on by the appellant, are not applicable to the conditions of this case. Barber v. Barber, 21 How. 582, 16 L. ed. 226; Cheever v. Wilson, 9 Wall. 108, 19 L. ed. 604.
In Barber v. Barber, the jurisdiction in equity was maintained upon two grounds, neither of which exists here. The divorce was not absolute, but from bed and board, a mere judicial separation. Being still the wife of the defendant, she could not maintain an action against him at law, though she could acquire a different domicil, and was therefore compelled to sue in equity, as she did, through her next friend. The second ground of the jurisdiction was based on the jurisdiction of equity in England to enforce the decrees of alimony of the ecclesiastical courts. As said by Mr. Justice Wayne: “It is, that when a court of competent jurisdiction over the subject-matter and the parties decrees a divorce, and alimony to the wife as its incident, and is unable of itself to enforce the decree summarily upon the husband, that courts of equity will interfere to prevent the decree from being defeated by fraud.” Cheever v. Wilson, in all its features, presented a ease of undoubted jurisdiction in equity, and the question was not raised.
We remain of the opinion that the court erred in overruling the demurrer to the bill for want of jurisdiction in equity. As the final- decree, however, dismissed the bill upon other grounds not herein considered, the decree of dismissal will be modified so as to show that it is for the want of jurisdiction, without prejudice to the right of the complainant to maintain an action at law, if so advised. So modified it is affirmed, with costs.
Modified and affirmed.