Central Law Journal.

ST. LOUIS, MO., DECEMBER 9, 1910

DISTINCTION AS TO PAST DUE INSTALLMENTS FOR ALIMONY AND FOR SUPPORT OF CHILDREN.

We discussed in 71 Central Law Journal 55, the case of Sistare v. Sistare, 218 U. S. I, which reversed the Connecticut Supreme Court of Errors in its construction of the New York statute allowing modification of divorce decrees so far as they referred to instalment payments of alimony.

The trouble in the mind of the Connecticut court was in its interpretation of the opinion in Lynde v. Lynde, 181 U. S. 183, and in the Sistare case it is stated by Mr. Justice White, following upon a discussion of Barber v. Barber, 21 How. 582 and the Lynde case, that: "When these two cases are considered together, we think there is no inevitable and necessary conflict between them, and in any event, if there be, that Lynde v. Lynde must be restricted or qualified so as to cause it not to overrule the decision in the Barber case." The latter case ruled that, though a divorce decree is subject to modification as to instalment payments of alimony, nevertheless as to past due instalments the decree came under the faith and credit clause of the constitution.

The opinion in the Sistare case was handed down on May 31, 1910, and most probably had not come to the notice of the Supreme Court of Oklahoma, when, on July 12, 1910, it handed down its decision in Bleuer v. Bleuer, 110 Pac. 736. In this decision the Oklahoma court contents itself with referring to Mayer v. Mayer, 154 Mich. 386, 117 N. W. 890, 19 L. R. A. (N. S.) 245, 129 Am. St. Rep. 477, as one of the best considered opinions on the subject of past due instalments in divorce coming under the protection of the faith and credit clause.

Looking at the Mayer case, we see it relying on the Lynde case just as did the Connecticut case, except that the Michigan court distinguishes between instalments for alimony and those for maintenance and support of children, predicating this distinction. on the Oklahoma statute specifically providing that the latter are subject to modification and not in terms so stating as to instalments for alimony.

In the first place we greatly doubt whether such statutory provision was necessary, as we believe it a well-recognized principle, that where alimony is not awarded in a lump sum, or support for children in a lump sum, there is reserved the right to modify the decree, just as there certainly exists the right to modify any decree as to custody, care and education of the children.

But, taking it that the Oklahoma statute did so provide, we think it is well pointed out by the Sistare opinion, that a construction, which would deprive past due instalments for maintenance and support of children of the benefit of the faith and credit clause, was not within the intent of any such legislation. Such a provision is presumably for the benefit of children and it should not be turned into a sword against them.

This is precisely the kind of error the Connecticut court fell into and responsibility therefor would seem reasonably attributable to the Lynde case, which, now, the painstaking discussion by Justice White, in the Sistare case, should forever set at rest, and in that discussion the court came about as near admitting, that our great tribunal was inconsistent in its utterances as we may ever hope it will admit.

We believe the accepted doctrine is, that an award of alimony in a divorce decree is absolute after expiration of the term of its rendition, unless the decree reserves the right to modify, or statutory power therefor is given. See 2 Am. & Eng. Encyc. of Law 136, for authorities. But, as in the absence of statute, the power to modify was deemed to reside in a court of equity, pro

vided its decree reserved it, statutes providing for its exercise are to be construed as merely bridging over the failure to expressly reserve, in decrees, such power as amounting to a judgment releasing the parties from its further jurisdiction.

No such thing, however, should be considered needed, where maintenance, education and support of offspring are concerned. For a divorce decree to be deemed so sacred, when it attempts presently to award them support, that it may not be opened in behalf of children, whether reservation therefor is made by statute or the decree itself, is to establish sanctity for what has been adjudged, when the children have never had their day in court.

We believe it has been held that the obligation to support children is not released as to either parent by divorce, and, if the method of securing this support has found place in divorce decrees, it ought to be made by courts as fairly commensurate with the rights of children as possible.

Decision as to awards in divorce being. unalterable after the term in which they are made, except as provided for, may or may not be sound, when these awards are of alimony, but it is illogical, we think, to say the principle applies as well to awards. for the benefit of children.

However, the case of Sistare v. Sistare is very important as settling the question of past due instalments, whether they be of alimony or for support of children, being protected by the faith and credit clause of the constitution.

NOTES OF IMPORTANT DECISIONS

EXECUTORS AND ADMINISTRATORSSUIT ON FOREIGN JUDGMENT.-It appears from the case of Moore v. Kraft, 179 Fed. 685, decided by Seventh Circuit Court of Appeals, that one Moore was appointed by a probate court of Arkansas administrator of the estate of Sallie B. Kraft, who at the time of her death was domiciled in Illinois. She died leaving real and personal property and creditors in Arkansas.

As administrator he sued F. W. Kraft in an Arkansas court and obtained judgment. He brought suit on this judgment in Illinois and defendant pleaded that he had been appointed administrator of deceased at her domicile; that Moore was only ancillary administrator; that all the assets of intestate's estate were subject to distribution in Illinois and that such ancillary administrator “has no right, power or authority to maintain an action in the state of Illinois for the recovery of any of the assets of the estate of said Sailie B. Kraft, deceased." This plea was demurred to on the grounds of res adjudicata and that "after judgment the debt became personal to the plaintiff, the style administrator being merely descriptive and not essential to a recovery."

This demurrer was overruled and this ruling the Circuit Court of Appeals reverses.

The court said: "When Moore, in the right of his intestate, sued Kraft in Arkansas and obtained the judgment in question, the original cause of action became merged in the judgment, and the judgment became the legal evidence of a new debt, for the non-payment of which a new cause of action would arise. Now this new cause of action never belonged to Mrs. Kraft, and so it would be logically impossible for Moore to sue upon it in her right. If a person buys or leases property from an administrator or receiver, the consideration is promised to be paid to a living person, who sues by virtue of what he has done, not by virtue of what the deceased or insolvent had done, and whatever he may do or be obligated to do with the consideration when he collects it, is wholly irrelevant to the issue."

The court from this concludes that the demurrer to the plea should have been sustained.

This ruling is technically correct, in one aspect, but should the judgment have been thus treated in the case that was decided? In the cases in which it was held that the administrator should sue in his own name the administrator was that of the domicile, but in the case at bar an ancillary administrator carries into the domicile to collect that which the resident administrator should collect. The rule seems not one to interfere with a domicile but to aid it. In the cases in which the rule was announced the proceeds were to be taken to the domicile and there distributed. the reverse is the case. Dces not this afford by a technical rule, an advantage to foreign over domestic creditors? If it is so that the domestic debtor paying the judgment ceases to owe the estate, though the latter judgment belongs to the foreign administrator personally, ought not the jurisdiction of the domicile to refuse, aid in its collection? The reason of the rule seems to us to fail in the case of

Here

ancillary administration, and, if the maxim Cessante ratione legis cessat ipsa lex is sound, a fortiori should reason displace a mere techLicality.

MECHANICS' LIENS-STRICT CONSTRUCTION AS TO LIENABLE ITEMS.-In the case of Gilbert Hunt Co. v. Parry, 110 Pac. 511, Supreme Court of Washington, the question

s whether or not tools and appliances specialiy procured to be used in the cors'raction of buildings. structures and ditches of an irrigation plant were "material to be used in ho ecnstruction, alteration and repair of" said plant.

The court took the view that such statutes were only meant to secure a lien to the laborer and materialman for that which "goes into the inished structure," "that material which 'becomes a part of the finished structure.'"

This reasoning would seem more proper if the question were of the right of a contractor to recover for his work, but it does not seem altogether clear that a hardware merchant who furnishes necessary material for the prose ution of a contractor's work should not have a materialman's lin as well for tools as for nails that go into a structure. The contractor's price is figured upon the necessity of buying tools as well as upon buying lumber or nails, and one is as necessary for the building's completion as the other.

A

The statute of that state said a lien accrues for "furnishing material to be used in the construction, alteration or repair," etc. It does not say the material shall go directly into the structure or be a part thereof. Labor is not a part of the structure after it is completed. tool worn out in work of construction is in a sense in the structure, just as labor is there. It rather seems that by this ruling the court works out a discrimination against a certain class of materiaimen that the statute does not intend.

BANKS AND BANKING-BANK CREDITING ITS DEPOSITOR WITH A DEPOSIT IN ITS FAVOR IN ANOTHER BANK.-The ease of Bank of Big Cabin v. English, 111 Pac. 386, decided by Supreme Court of Oklahoma. presents what appears to be a novel and very important question for bankers. We feel justified in saying this is a novel question because the learred court in a very careful opinion citing and discussing many cases relies only on analogy for its conclusion.

The facts show that a shipper consigned a car load of hogs to a commission firm of Kansas City, Mo., with instructions to forward the proceeds to Bank of Big Cabin, Oklahoma, of which the shipper was a depositor.

The

commission firm, instead of doing this, deposited with the Interstate National Bank, its check to the credit of the Big Cabin Bank, and the Interstate Bank ascertaining from the Bankers' Directory that the Bankers' Trust Company of Kansas City was designated as the correspondent of the Big Cabin Bank, notified it that its account was credited by direction of the shipJer with the amount to account of the Big Cabin Bank. It also notified the Big Cabin Bank that its account was thus credited with Bankers' Trust Company. The Big Cabin Bank received this notice on October 25. On October 26, the Bankes' Trust Company drew on the Interstate Bank for the amount and its draft was paid through the clearing house. On October 28, the Bankers' Trust Company closed its doors. Between October 25 and October 28, the Big Cabin Bank credited the shipper's account in its bank. On October 29, the B'g Cabin Bank wrote the Interstate Bank that it had never authorized any credit being placed by it in the Bankers' Trust Company and it would look to it for protection. On the same day it advised its customer that it would charge this credit back to him. The shipper having recovered judgment against the Big Cabin Bank, the Supreme Court reversed the decision on the theory that this credit was only provisional and the sole responsibility of the Big Cabin Bank, if any, was to have us d due diligence in collecting this credit. The cases relied on by the Oklahoma court are those in which a depositor is given credit for checks he deposits on the supposition that they will be paid, which credit is, of course, revocable, unless by fault of the collecting bank they are not collected.

We confess our inability to see any parallel or that there is any analogy subsisting between such cases and the one before the court.

In limine the commission firm did not do what it was directed to do, but it directed its bank to do it. Its bank did not do it either. but it selected another to do it. If that other had in fact been the correspondent bank of the Big Cabin Bank that was a matter with which the shipper had no concern. Up to this point the commission firm would appear to be still indebted to the shipper. But what happens? The Big Cabin Bank says, in effect: "1 (not you) have a credit in the Bankers' Trust Company. This is satisfactory to me, and I, owing you for obtaining that credit give you another credit on my books." This being accepted by the shipper, the Big Cabin Bank acquires a credit in the Bankers' Trust Company as its property. The Big Cabin Bank up to the moment it thus intervenes could have declared itself a stranger to all that had transpired, but it does no such

terms to include the case of a special appearance.

But the question here presented is quite a different one. For here the judgment debtor was not in Texas and had no intention to submit to the Texas jurisdiction, yet judgment was entered by the court of that state, upon which an Illinois court has since entered judgment. The question therefore is, the power of the state of Texas, through its legislature and courts, to seize upon property in Illinois and transfer the ownership of it from one person to another, through the device of construing a denial of jurisdiction as a submission

to it.

In the actual fact I think this question was obscured by the mass of pleadings in the case, and was not clearly presented to the court of Illinois. And that it may be freed from all questions of similar appearance, but not actually involving the same legal principies, let us note first, some things that are not denied. I have already accepted the application of the statutory rule where the objection is only to lack of proper form or method of service. Second, it is conceded that so far as property within the state is concerned, the legislature has in general the right to determine what rules shall obtain as to the method of subjecting that property to the satisfaction of claims against the owner. If, therefore, the property of a non-resident be sold in the state of Texas upon a judgment obtained in the courts of that state, and in accordance with its statutes, the title of the defendant will be divested, even though he be a non-resident and not served with process. Should the property be thereafter removed to another state, the courts of that state will recognize the title of the purchaser as against the former owner. This merely means that each state is supreme over persons and property within its own limits. Now set over against this, the other proposition, which is really the same thing, from the opposite standpoint, that each state has exclusive authority within its own limits; that is to say, that no other state can exercise any authority within.

these limits. Yet in the present case the Texas court in effect assumed jurisdiction over property in Illinois.

In the simplest form no one now controverts the proposition, though attempts were made, in the early history of this country, to compel non-residents of a state to defend themselves in its courts, though not served with process therein. Thus, it is beyond controversy that if the sheriff of a New York county holding a summons from his own court should go across the line into New Jersey and there serve it upon a resident of that city, the service and all proceedings following upon it are absolutely nugatory.

But, again, it is conceded that a defendant may voluntarily submit himself to the jurisdiction of a court which could not otherwise bind. him, and thereupon the court shall be clothed with exactly the same power as if he were a resident amenable to its process. In the present case, it wil be noted, the attempt was to subject a nonresident, not intending to try his case in the courts of Texas, to the judgment thereof, because the legislature has assumed the power to construe a given act so as to make it very different from that which upon its face it was. The question may be stated thus:

Where a defendant is a non-resident of a given state and therefore not primarily subject to its courts, or to its legislative authority, by what acts, without taking up residence therein, can that defendant make it possible for that legislature and those courts to adjudicate against him without his consent?

That the legislature cannot arbitrarily. give authority to its courts over non-residents appears from Pennoyer v. Neff," where the whole question is exhaustively discussed, and in which it was decided that a judgment on service by publication in an Oregon court, in form in personam, was insufficient to authorize sale even within that state.