194 S.W.2d 687 | Ark. | 1946
The essential question on this appeal is the force and effect to be given in Arkansas, to a Kansas judgment (1) awarding money, and (2) attempting to vest title of Arkansas real estate.
Appellant, Lillie Mae Tolley, and appellee, James Alvis Tolley, were married in Arkansas in 1925, and two children were born to the marriage. Appellant and appellee separated in 1941, and thereafter each party made an unsuccessful effort to obtain a divorce in Arkansas. Then, in September, 1944, while the appellant was residing in Kansas, the District Court of Wyandotte county, Kansas, in a suit filed by the appellant and based on personal service on appellee, rendered a judgment which awarded appellant: (1) a divorce; (2) final judgment for $195; (3) $10 per week from date of judgment until further orders of the court for the support and education of the minor child then in the custody of appellant; and (4) title to certain real estate in White county, Arkansas, free and clear of all claims and liens of James A. Tolley.
Basing her claim on the said Kansas judgment, Lillie Mae Tolley, on April 27, 1945, filed suit against James A. Tolley in the Circuit Court of White county, Arkansas, seeking: (1) judgment both for the $195, and also for the continuing sum of $10 per week for the support of the child, and past due under the Kansas judgment, supra, and (2) possession of the forty acres in White county as described in the Kansas judgment, supra. To this complaint, appellee filed a demurrer, which was sustained. Appellant's complaint was dismissed upon her refusal to plead further; and there is this appeal.
The record reflects that the appellee filed answer in addition to demurrer, and the appellant demurred to the answer. However, the cause was heard by the White Circuit Court solely on the pleadings; and the court ruled that the appellee's demurrer to the complaint *146 should be sustained. So, we disregard on this present appeal any and all reference to the appellee's answer and the appellant's demurrer thereto.
We hold that the appellee's demurrer should have been (1) overruled as to those parts of the appellant's action which sought money judgment; and (2) sustained as to so much of the appellant's action as sought ejectment for the land.
I. The Action to Enforce the Kansas Judgment for Money. Article IV, 1 of the Constitution of the United States says: "Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." 28 U.S.C.A., 688, was enacted to carry into effect the last sentence above quoted. The judgment of the District Court of Wyandotte county, Kansas, said: "It is further ordered and decreed that plaintiff have judgment against the defendant in the sum of $120 for past-due support and maintenance, and attorney fees in the sum of $75; total $195." This language quoted immediately above was a final judgment, and entitled to full faith and credit in the State of Arkansas under the provisions of the United States Constitution, as above quoted. Beauchamp v. Bertig,
The appellant also sought judgment in this action in White county for the allegedly past-due weekly installments of support money awarded by the Kansas court, the judgment of which (under date of September 27, 1944) reads: "It is further ordered that plaintiff be and she is awarded the care, custody and control of their *147 minor child, Mary Jacquline Tolley; that defendant be and he is hereby ordered and directed to pay to the plaintiff the sum of $10 per week from this date for the support, maintenance and education of said minor child, Until a further order of this court."
Whether this award for support money is a final judgment and entitled to full faith and credit presents an interesting question, and one not discussed in Kelly v. DeWees,
We are not concerned here with the effect the Arkansas courts give to their own awards for future payments for support, but rather with the effect the Kansas courts give to Kansas awards for future payments for support. We turn, then, to the law of Kansas as declared by the courts of the state. In Sharp v. Sharp, *148
"With respect to installments due and unpaid, the judgment was final. Burnap v. Burnap,
"In Cheever v. Kelly,
"As the court is without power to modify or change past-due installments for the support and education of minor children (Davis v. Davis,
Interesting annotations on the question of the full faith and credit to be accorded past-due installments for alimony or support may be found in 41 A.L.R. 1419, 46 A.L.R. 1200; 57 A.L.R. 1113; and 157 A.L.R. 170. In 27 C.J.S. 1286, Divorce, 329, the various holdings are summed up: "On the other hand, a decree for the support of a minor child, which is unalterable, or so much thereof as is unalterable, is within the application of the *149 full faith and credit clause of the Federal Constitution, . . ."
The holdings of the Supreme Court of Kansas demonstrate that the past-due installments for support are final and unalterable, and are not subject to annulment or modification by the Kansas courts. It therefore follows that the appellee's demurrer should also have been overruled to so much of the appellant's complaint as sought to enforce in Arkansas, the unpaid and unsatisfied awards for weekly support adjudged by the Kansas court, and past-due at the time of the filing of this cause in the White Circuit Court.
II. The Action to Enforce the Kansas Judgment Affecting Title to Arkansas Real Estate. The judgment of the District Court of Wyandotte county, Kansas, contained this language: "It is further ordered and decreed that plaintiff be and she is hereby awarded the following described real estate, to-wit: The southeast quarter (1/4) of the southeast quarter, (1/4) of section ten (10), township seven (7) north, range five (5) west, consisting of forty (40) acres of land, more or less, in White county, Arkansas, free and clear of all claims and liens of the defendant." This was a decree in rem by the Kansas court, attempting to settle title to real estate in Arkansas by operating directly on the title. The full faith and credit clause of the United States Constitution does not afford any sanctity or force in the State of Arkansas to such judgment of the Kansas court, because the Kansas court was without jurisdiction to vest title to Arkansas real estate in the form in which this judgment was rendered. Fall v. Eastin,
The Supreme Court of Kansas has recognized that a court of one state has no jurisdiction to vest title in rem in lands located in another state. In Rodgers v. Rodgers,
In 27 C.J.S. 1287 the rule is stated: "Since jurisdiction to render a judgment in rem inheres only in the courts of the state which is the situs of the res, a divorce decree which attempts to settle the title to lands in another state, by operating directly on the title, and not by compelling the holder of the title to convey, is void and not res adjudicata of the same claim in all action between the same parties and involving the same land."
And in 17 Am. Juris. 369 this appears: "The rule is well established that in divorce proceedings the courts of one state cannot, by their decree, directly affect the legal title to land situated in another state, . . ."
And in Leflar on "Conflict of Laws," 119, the rule is stated: "The only state which can, by operation of law and apart from the act of the parties, transfer title in land out of one person and into another is the state where the land lies." *151
This court has recognized and applied the same rule in the cases of Kendall v. Crenshaw,
There are, of course, cases where a court of one state may require a party to execute a deed to lands in another state, as in specific performance cases; and, when such deed is executed, it is valid. The following cases of this court bear on this point: Arkansas Mineral Products Co. v. Creel,
The Kansas judgment here involved did not require the appellee to execute a deed, so as to be an in personam decree. Rather, the Kansas judgment here involved was an attempt by the court of Kansas to directly adjudicate, settle and vest the title of Arkansas real estate; and in that respect the Kansas judgment is not effective in the State of Arkansas; and the Circuit Court of While *152 county, Arkansas, correctly sustained the appellee's demurrer to the ejectment action, based on the Kansas judgment.
It follows, therefore, that the judgment here appealed from is affirmed as to so much thereof as sustained the appellee's demurrer to the ejectment action; but is reversed and remanded with directions to overrule the demurrer to so much of the complaint as sought a money judgment based on the Kansas decree for the $195, and also for the unpaid and unsatisfied award for weekly support adjudged by the Kansas decree and past due at the time of the filing of this action in the White Circuit Court. Costs of this appeal are taxed against appellee.