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York, and on April 1, 1892, at special Mr. William A. Keener and Messrs. term, the plaintiff in error was found Hatch, Keener, and Clute for plaintiff in guilty of adultery as charged in the com-error. plaint, and a divorce was granted upon Messrs. Flamen B. Candler, William that ground to the defendant in error. The Jay, and Robert W. Candler for defendant divorce, was absolute, and awarded to the in error. wife the custody and care of the three minor children of the marriage, and also, Mr. Justice Day delivered the opinion as alimony, the sum of $3,000 per annum of the court: so long as she should live, to be paid in It is conceded in argument by counsel quarterly instalments of $750 each on the for the plaintiff in error that this case first day of the months of July, October, would be within the decision of this court January, and April of each year. There in Audubon v. Shufeldt, 181 U. S. 577, 45 was also granted to the wife the sum of L. ed. 1010, 21 Sup. Ct. Rep. 735, if the $3,000 annually, being $1,000 for the edu- judgment for alimony had been rendered cation and maintenance of each of the in a court having control over the decree three minor children, to be paid in quar- with power to amend or alter the same. three minor children, to be paid in quar. It is insisted, however, that, there being in terly instalments, until such children should arrive at the age of twenty-one

this case no reservation of the right to

change or modify the decree, it has become years respectively. Plaintiff in error was also required to give security for the pay the court to alter or amend, and is there

an absolute judgment, beyond the power of ment of the alimony awarded. The decree fore discharged by the bankruptcy proceeddid not reserve any right of subsequent ings. Walker v. Walker, 155 N. Y. 77, 49 modification or amendment. On January N. E. 663; Livingston v. Livingston, 173 13, 1899, there was due to the wife from N. Y. 377, 61 L. R. A. 800, 93 Am. St. Rep. the plaintiff in error, for arrears in ali- 600, 66 N. E. 123. It may be admitted to mony and allowance under the decree, the be the effect of these decisions of the New sum of $19,221.60. Upon that day, upon York court of appeals that, in the absence application to the district court of the of any reservation of the right to modify United States for the eastern district of or amend, the judgment for alimony bePennsylvania, the plaintiff in error was comes absolute. The question presented adjudicated a bankrupt. The defendant for decision, in view of this state of the in error made no proof of her claim for ali-law, is, Has the decree become a fixed liamony in the bankrupt proceedings. On bility evidenced by a judgment, and thereJune 21, 1900, the plaintiff in error was fore provable against the estate of the granted a discharge from all debts and bankrupt, within the protection of the disclaims provable under the bankruptcy act. charge in bankruptcy? Section 63 of the On December 12, 1901, plaintiff in error act of 1898 provides : sued out a writ in the supreme court of “Sec. 63. Debts which may be proved :the state of New York for an order enjoin- "Debts of the bankrupt may be proved ing and restraining all proceedings on be- and allowed against his estate which are half of the defendant in error for the (1) a fixed liability as evidenced by a collection of the arrears of alimony and al- judgment or an instrument in writing, ablowance aforesaid. This application was solutely owing at the time of the filing of denied, upon the ground, as it appears the petition against him, whether then from the memorandum of the judge who payable or not, with any interest thereon rendered the decision, that the arrears of which would have been recoverable at that alimony were not discharged in bankrupt- date, or with a rebate of interest upon cy. From the order denying the applica- such as were not then payable and did not tion an appeal was taken by the plaintiff bear interest.” [30 Stat. at L. 562, chap. in error to the appellate division of the 541, U. S. Comp. Stat. 1901, p. 3447.] supreme court of the state of New York, It is not contended that this section inwhere the order below was affirmed. The cludes instalments of alimony becoming plaintiff in error thereupon appealed to due after the adjudication, but the conthe court of appeals of the state of New tention is that prior instalments have beYork, and on June 27, 1902, the appeal come an existing liability, evidenced by the was dismissed for want of jurisdiction, judgment, and therefore a provable debt. without any judgment of affirmance or re-While this section enumerates under sepaversal upon the merits. A writ of error rate paragraphs, the kind and character of was sued out seeking in this court a re- claims to be proved and allowed in bankversal of the judgment of the supreme ruptcy, the classification is only a means court of the state of New York.

of describing "debts” of the bankrupt

which may be proved and allowed against | imposed for a failure to perform a duty. his estate.

It is not to be enforced by an action at The precise question, therefore, is, Is law in the state where the decree is ensuch a judgment as the one here under con- tered, but is to be enforced by such sideration a debt within the meaning of proceedings as the chancellor may deterthe act? The mere fact that a judgment mine and adopt for its enforcement. It has been rendered does not prevent the may be enforced by imprisonment for concourt from looking into the proceedings tempt, without violating the constitutional with a view of determining the nature of provision prohibiting imprisonment for the liability which has been reduced to debt. The decree for alimony may be judgment. Boynton v. Ball, 121 U. S. 457, changed from time to time by the chan466, 30 L. ed. 985, 987, 7 Sup. Ct. Rep. cellor, and there may be such circumstan981. The question presented is not alto- ces as would authorize the chancellor to gether new in this court. In the case of even change the amount to be paid by the Audubon v. Shufeldt, 181 U. 8. 577, 45 L. husband, where he is in arrears in pay. ed. 1010, 21 Sup. Ct. Rep. 736, Mr. Justice ments required under the decree. Hence, Gray, delivering the opinion of the court, such alimony cannot be regarded as a debt said:

owing from husband to the wife, and, not “Alimony does not arise from any busi- being so, cannot be discharged by an order ness transaction, but from the relation of in the bankruptcy court." marriage. It is not founded on contract, It is true that, in the cases referred to, express or implied, but on the natural and the decrees were rendered in courts having legal duty of the husband to support the continuing control over them, with power wife. The general obligation to support is to alter or amend them upon application; made specific by the decree of the court of but this fact does not change the essential appropriate jurisdiction Generally speak

Generally speak- character of the liability, nor determine ing, alimony may be altered by that court whether a claim for alimony is, in its naat any time, as the circumstances of the ture, contractual so as to make it a debt. parties may require. The decree of a

of a The court having power to look behind the court of one state, indeed, for the present judgment, to determine the nature and expayment of a definite sum of money as tent of the liability, the obligation enforced alimony, is a record which is entitled to is still of the same character notwithstandfull faith and credit in another state, and ing the judgment. We think the reasonmay, therefore, be there enforced by suit. ing of the Audubon Case recognizes the Barber v. Barber (1858) 21 How. 582, 16 doctrine that a decree awarding alimony L. ed. 226; Lynde v. Lynde (1901) 181 U. to the wife or children, or both, is not a S. 183, 45 L. ed. 810, 21 Sup. Ct. Rep. 555. debt which has been put in the form of a But its obligation in that respect does not judgment, but is rather a legal means of affect its nature. In other respects, ali- enforcing the obligation of the husband mony cannot ordinarily be enforced by ac- and father to support and maintain his tion at law, but only by application to the wife and children. He owes this duty, not court which granted it, and subject to the because of any contractual obligation, or discretion of that court. Permanent ali-as a debt due from him to the wife, but mony is regarded rather as a portion of because of the policy of the law which imthe husband's estate to which the wife is poses the obligation upon the husband. equitably entitled than as strictly a debt; The law interferes when the husband neg. alimony from time to time may be regard lects or refuses to discharge this duty, and ed as a portion of his current income or enforces it against him by means of legal earnings; and the considerations which af- proceedings. fect either can be better weighed by the It is true that in the state of New York court having jurisdiction over the relation at the time this decree was rendered there of husband and wife than by a court of a was no power to modify or alter the decree different jurisdiction.”

for alimony and allowance in the absence of In the same opinion Mr. Justice Gray special reservation.

reservation. But this does not quoted from Barclay v. Barclay, 184 Ill. change the grounds upon which the courts 375, 51 L. R. A. 351, 56 N. E. 636, in which of the state proceeded in awarding the alicase it was adjudged that alimony could mony and allowances. In the case of Ronot be regarded as a debt owing from hus- maine v. Chauncey, 129 N. Y. 566, 14 L. band to wife, which might be discharged R. A. 712, 26 Am. St. Rep. 544, 29 N. E. by an order in bankruptcy, whether the al- 826, it was held that alimony was awardimony accrued before or after the proceeded, not in the payment of a debt, but in ings in bankruptcy:

the performance of the general duty of the “The liability to pay alimony is not husband to support the wife. This case founded upon a contract, but is a penalty was quoted with approval by Mr. Justice Gray in Audubon v. Shufeldt, 181 U. S. | by his discharge in bankruptcy, and if not. 575, 45 L. ed. 1009, 21 Sup. Ct. Rep. 735. then we see no reason why his contract to

In Walker v. Walker, 155 N. Y. 77, 49 do that which the law obliged him to do N. E. 663, and Livingston v. Livingston, should be discharged in that way. As his 173 N. Y. 377, 61 L. R. A. 800, 93 Am. St. discharge would not in any event terminate Rep. 600, 66 N. E. 123, the effect of the his obligation to support his children durholdings is that a judgment for alimony, ing their minority, we see no reason why in the absence of reservation, is a fixed his written contract acknowledging such and unalterable determination of the obligation and agreeing to pay a certain amount to be contributed to the wife's sum (which may be presumed to have been support after the decree, and is beyond the a reasonable one) in fulfilment thereof power of the court to change even under should be so discharged. It is true his the authority of subsequent legislation. promise is to pay to the mother; but on These cases do not modify the grounds this branch of the contract it is for the upon which alimony is awarded, and rec- purpose of supporting his two minor chilognize that an alimony decree is a provi- dren, and he simply makes her his agent sion for the support of the wife, settled for that purpose. and determined by the judgment of the We think this language is equally applicourt.

cable to the present case in that aspect of In the case of Dunbar v. Dunbar, decided the decree which provides for the support by this court at the October term, 1902 of the minor children. The obligation con(190 U. S. 340, 47 L. ed. 1084, 23 Sup. Ct. tinues after the discharge in bankruptcy Rep. 757), it was held that a contract as well as before, and is no more than the made after divorce between husband and duty devolved by the law upon the huswife, by which the former agreed to pay band to support his children, and is not a the latter a certain sum of money annu- debt in any just sense. ally for her support during her life, or so It is urged that the amendment of the long as she remained unmarried, and also law made by the act of February 5, 1903 to pay a certain sum of money to her annu- [32 Stat. at L. 797, chap. 487), excepting ally for the support of the minor children from the operation of a discharge in bankof the marriage, whose custody was award- ruptcy a decree for alimony due or to beed to the mother, was not discharged by a come due, or for the maintenance and subsequent proceeding and discharge in support of the wife and minor children, is bankruptcy. It was further held that the a legislative recognition of the fact that, sum agreed to be paid for the support of prior to the passage of the amendment, the minor children was but a recognition judgments for alimony would be disof the liability of the father for their sup- charged. In Dunbar v. Dunbar, 190 U. S. port, and that the fact that the annual 340, 47 L. ed. 1084, 23 Sup. Ct. Rep. 757, instalments were made payable to the wife it was said that this amendment, while it made no difference in the character of the did not apply to prior cases, may be reobligation. Of this feature of the conferred to for the purpose of showing the tract the court, speaking by Mr. Justice legislative trend in the direction of not Peckham, said:

discharging an obligation of the bankrupt “In relation to that part of the hus for the support and maintenance of wife band's contract to pay for the support of and children. The amendment may also his minor children until they respectively have been passed with a view to settling become of age, we also think that it was the law upon this subject, and to put at not of a nature to be proved in bankruptcy. rest the controversies which had arisen At common law, a father is bound to sup- from the conflicting decisions of the courts, port his legitimate children, and the obli- both state and Federal, upon this question. gation continues during their minority. Indeed, in view of the construction of the We may assume this obligation to exist in act in this court in Audubon v. Shufeldt, all the states. In this case the decree of 181 U. S. 575, 45 L. ed. 1009, 21 Sup. Ct. the court provided that

that the children Rep. 735, it may be said to be merely deshould remain in the custody of the wife, claratory of the true meaning and sense of and the contract to contribute a certain the statute. United States v. Freeman, 3 sum yearly for the support of each child How. 556, 11 L. ed. 724; Bailey v. Clark, during his minority was simply a contract 21 Wall. 284, 288, 22 L. ed. 651, 653; Cope to do that which the law obliged him to v. Cope, 137 U. S. 682, 688, 34 L. ed. 832, do; that is, to support his minor children. 834, 11 Sup. Ct. Rep. 222.

Ct. Rep. 222. The bankWe think it was not the intention ruptcy law should receive such an interof Congress, in passing a bankruptcy act, pretation as will effectuate its beneficent to provide for the release of the father purposes, and not make it an instrument from his obligation to support his children to deprive dependent wife and children of the support and maintenance due them be deemed necessarily to have been decided from the husband and father, which it has by that court, where the record does not ever been the purpose of the law to en

show that the question was there raised. force. Systems

Systems of bankruptcy are designed to relieve the honest debtor from

[No. 61.] the weight of indebtedness which has become oppressive, and to permit him to Submitted November 10, 1904.

1904. Decided have a fresh start in business or commer

December 19, 1904. cial life, freed from the obligation and responsibilities which may have resulted

IN

TN ERROR to the Supreme Court of the from business misfortunes. Unless posi- State of Illinois to review a judgment tively required by direct enactment the which affirmed a judgment of the Circuit courts should not presume a design upon Court of Cook County, of that State, in the part of Congress, in relieving the un- favor of plaintiff in an action to recover fortunate debtor, to make the law a means certain taxes. Dismissed for want of juof avoiding enforcement of the obligation, risdiction. moral and legal, devolved upon the hus- See same case below, 202 Ill. 122, 66 N. band to support his wife and to maintain E. 962. and educate his children. While it is true The facts are stated in the opinion. in this case the obligation has become fixed Mr. William H. Barnum for plaintiff by an unalterable decree so far as the in error. amount to be contributed by the husband Messrs. Robert S. Iles, Robert D. Mar. for the support is concerned, looking be- tin, and Stillman B. Jamieson for defendneath the judgment for the foundation ant in error. upon which it rests, we find it was not decreed for any debt of the bankrupt, but Mr. Justice Day delivered the opinion was only a means designed by the law for of the court: carrying into effect, and making available

This case was submitted on briefs, toto the wife and children, the right which gether with motion to dismiss or affirm. the law gives them as against the husband in support of the motion to dismiss, the and father.

position taken is that no Federal question We find no error in the judgment of the was properly raised in the state court, and Supreme Court of the State of New York, therefore none is reviewable here. and the same is affirmed.

The case was commenced in the circuit

court of Cook county, Illinois, to recover (196 U. s. 78)

taxes for the years 1897, 1898, 1899, and

1900, on a block of land in the Elston adGEORGE F. HARDING, Piff. in Err.,

dition to the city of Chicago. At the trial

a jury was waived, and, upon hearing, a PEOPLE OF THE STATE OF ILLINOIS. judgment was rendered in favor of the

plaintiff for the sum of $2,123.05. An inError to state court-Federal question. spection of the record shows that the prin

cipal controversy was over the effect of a 1. Neither the petition for a rehearing, nur deed made by Harding, the plaintiff in er

the petition for the writ of error, nor the ror, to the Chicago Real Estate Loan & Court, nor the certification of briefs by the Trust Company, dated June 10, 1896, and clerk of the state court, can cure the failure recorded July 2 of the same year, which of the record to show that a Federal ques- conveyed, for the consideration of $5, "all tion was raised and decided which would interest in the following described real esconfer jurisdiction on the Federal Supreme tate, to wit: Any and all lands, of every

Court of a writ of error to the state court. kind and description, claimed or owned by 2. The assertion, on a motion for new trial,

that a state statute is contrary to the Fed' me in the state of Illinois, and all lots and eral Constitution, without pointing out the lands, of every description, in the city of provision of that instrument which it is Chicago, in which I have any right, title, claimed to violate, does not present a Fed- or interest

interest whatsoever, situated in the eral question which will confer jurisdiction state of Illinois,” etc. It was the contenon the Federai Supreme Court of a writ of tion of the state that this deed was too

error to a state court. 3. A Federal question, even if presented by general in its terms to convey specific

the claim, on a motion for a new trial in a property, and was therefore insufficient nostate court, that a state statute takes prop- tice to the taxing officer of Cook county erty without due process of law, which the that the ownership of the property bad highest state court expressly refrained from

changed. The trial court admitted this passing upon because it regarded the objeclion waived by failure to cite authorities or deed in evidence, subject to this objection. advance argument in support thereof, cannot 'Upon appeal to the supreme court of Illi.

V.

nois, of this deed and other evidence in ment was made, and such fact may be the case that court said:

proved by the introduction in evidence of “Conceding that the deed, if it stood the proper assessment book or roll, or alone, would overcome the prima facie case other competent proof." made by the plaintiff, the tax records of It is the contention of the plaintiff in Cook county for the year 1898, offered in error in this court that this statute is unevidence by the people, tended to prove constitutional, permitting assessment of ownership in the defendant. The items in those who may not be the owners of the the tax warrant for the year 1897 on this property assessed, and consequently a vioproperty were charged to him and merged lation of the protection guaranteed by the into a judgment. He appeared in the 14th Amendment to the Constitution of county court and objected to the validity the United States. The adverse holding of the tax, but judgment was rendered in the state court upon this proposition is against him as owner. This was subse the decision upon a Federal right which, it quent to the date of the deed. His remedy is asserted, gives jurisdiction to review the as to that tax, if levied unjustly against judgment in this court. The motion to him, was by appeal. Biggins v. People, dismiss raises the question whether this 106 Ill. 270. As to that tax he clearly objection was properly reserved in the could not, in this proceeding, attack the state court. Upon the constitutionality of validity of the former judgment. More this act the supreme court of Illinois said: over, after the date of the deed he received "It is also said that the foregoing secthe rents accruing from the property and tion of the statute, under which the action deposited the money so received to his per- is brought, is unconstitutional; but no ausonal account. Notwithstanding the at-thorities are cited or argument advanced tempted explanation of that transaction, in support of that assertion. The point, if we think the weight of the evidence it can be so considered, has therefore been is that he continued, after the pretended waived." conveyance, to deal with the premises as In the petition for allowance of a writ his own.

of error, and the assignment of errors in “In the light of all the evidence in the this court, it is alleged that the supreme case it is very clear that the conveyance court of the state erred in holding that the of June 10, 1896, was merely colorable, and constitutional objection had been waived. not executed with the honest purpose of And the plaintiff in error appears to have conveying the absolute ownership of the put upon file here, without leave, the property to the grantee.” 202 Ill. 122, 66 briefs and petition for rehearing below, in N. E. 962.

which it is insisted there is sufficient to Much of the elaborate brief of the coun- show that the constitutional objection was sel for plaintiff in error is devoted to a not abandoned. But neither the petition discussion of alleged errors of the supreme for a rehearing or petition for writ of ercourt of Illinois in deciding questions ror in the state court after judgment, or which, it is alleged, were not properly assignments of error in this court, can made, or in failing to give due weight to supply deficiencies in the record of the matters of evidence in the record. This state court, if any exist. Simmerman V. court has no general power to review or Nebraska, 116 U. S. 54, 29 L. ed. 535, 6 correct the decisions of the highest state Sup. Ct. Rep. 333. Nor does the certificacourt, and in cases if this character exer- tion of the briefs by the clerk of the state cises a statutory jurisdiction to protect supreme court, which are no part of the alleged violations, in state decisions, of record, help the matter. Zadig v. Baldcertain rights arising under Federal au- win, 166 U. S. 485, 41 L. ed. 1087, 17 Sup. thority. Central Land Co. v. Laidley, 159 Ct. Rep. 639. We are to try the case upon U. S. 103, 40 L. ed. 91, 16 Sup. Ct. Rep. the duly certified record, legally made in 80; Marchant v. Pennsylvania R. Co. 153 the state court, and upon which its deciU. S. 380, 38 L. ed. 751, 14 Sup. Ct. Rep. sion rests. Powell v. Brunswick County, 894.

150 U. S. 433, 439, 37 L. ed. 1134, 1136, The proceeding was brought under $14 Sup. Ct. Rep. 166. 230, chapter 120, 3 Starr & C. Anno. Stat. An examination of the record discloses of Illinois, 3501. This section provides: that the assignment of errors in the su

“In any such suit or trial for forfeited preme court of Illinois does not directly taxes, the fact that real estate or personal raise the point under consideration. It is property is assessed to a person, firm, or referred to in the following language of corporation shall be prima facie evidence the assignment of errors: that such person, firm, or corporation was “The finding and judgment of the court the owner thereof, and liable for the taxes were erroneous for the several reasons for the year or years for which the assess- 'stated in the points filed in support of the

25 S. C.-12.

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