1. A decree of an English court of chancery, rendered when both parties were citizens of that realm, which adjudges that the defendant therein is liable to the plaintiff in a given sum of money, no question being raised as to the court having jurisdiction of the subject matter or of *Page 724 the parties, and there being no suggestion of fraud in its rendition, will by the courts of this State be given conclusive effect.
2. A decree rendered in England, "In the High Court of Justice, Probate, Divorce, and Admiralty Division," which provides that "until further order or until she shall remarry" the husband shall pay to the wife an annual sum for the maintenance of a child of the marriage, is not rendered unenforceable in the courts of this State on the ground that it was not final in its nature, when only so much of it as it is sought to enforce here relates to the matured and unpaid installments of the amounts awarded as maintenance.
3. Upon application of the foregoing principles, it was not erroneous to overrule the general demurrer to the petition.
No. 14511. APRIL 14, 1943. Mrs. Florence Coulborn Joseph brought in Fulton superior court a suit against Arthur Percy Rushton Coulborn and Mrs. Rushton (Helen Marie) Coulborn, alleging that the defendants are residents of Fulton County, Georgia; that the defendant A. P. R. Coulborn is indebted to plaintiff in the sum of nearly $9,000, and the defendant, Mrs. Coulborn, his wife, is indebted to her in the sum of $3000, by reason of the following facts: The petitioner and the defendant A. P. R. Coulborn were husband and wife; and while both were residents and citizens of England, petitioner sued him for divorce and was granted a divorce decree, she being granted the custody of their minor child and a certain allowance as alimony for herself and child for their support. She alleged, that defendant A. P. R. Coulborn was indebted to her by virtue of said English decrees and certain contracts between the parties; that in an action brought by her in the High Court of Justice, Chancery Division, against the defendant Arthur Percy Rushton Coulborn, that court ordered him to convey to her a dwelling-house owned by him, known as Firenze, the mortgage on which was to be completely paid off by September 29, 1938, and petitioner was to have said property free and clear of any encumbrance, said property having a reasonable value of $4500; that in violation of the decree, the defendant refused and neglected to pay off the mortgage and deed the property to petitioner unencumbered, and in consequence she has suffered a loss of $4500; that said dwelling-house has a reasonable rental value of $350 per year, and has been rented at that price per year; that the defendant failed and refused to pay the cost on that and other actions, and the rents have been impounded *Page 725 by the court and applied to attorneys' costs which the defendant was obligated to pay, and petitioner was thereby deprived of the rental value of said property, amounting in the aggregate to $1535; that she instituted in the High Court of Justice an action against Arthur Percy Rushton Coulborn, respondent, and after a hearing that court provided, among other things, that after the remarriage of petitioner the respondent was to pay her for the maintenance of their minor child the sum of 150 pounds ($750) per year until the child shall attain the age of 21 years, the sum to be paid in monthly installments, until November, 1939, when, over the protest of petitioner, defendant began to pay on the current rate of exchange existing as of the time the decree was entered, and has thus paid considerably less than the court intended that petitioner should have for the maintenance of said child; that said payments have been accepted by petitioner for the child without prejudice since November, 1939; that said deficiency amounts to $12.50 per month since that date, and aggregates $450; and that by reason of defendant's failure to pay anything for several months, he is in default to her in the further sum of $355; that defendant failed to pay the costs assessed against him on various actions between petitioner and him in the English court, necessitating an action by her against him, and under the English law these costs became charges against her upon defendant's failure to pay them, although the cost decrees are in her favor; and that the costs for which defendant A. P. R. Coulborn is indebted to petitioner by reason of the various actions, and by reason of the judgments of court against him for the benefit of the petitioner, are as follows:
1. Proceeding between plaintiff and defendant for the custody of the minor child, the cost thereof being taxed on February 7, 1938, against the defendant in the sum of $425 (85 pounds, 6 shillings).
2. It was necessary for petitioner to bring a suit for maintenance against the defendant, and in addition to the judgment heretofore referred to, in favor of petitioner for herself and her minor child, a cost was assessed against the defendant in the sum of $450 (90 pounds); and these costs remain unpaid to date.
3. There was another suit instituted by petitioner against the defendant, to enforce the terms of the marriage settlement, and *Page 726 judgment was rendered in favor of petitioner on March 30, 1938, and costs were assessed by the court on December 10, 1940, three fourths to defendant and one fourth to petitioner, and defendant's share of said cost and his indebtedness to petitioner by reason thereof is $1130.
4. That the total cost involved in these various actions, for which the defendant is liable to petitioner by the said decrees and judgments, is the sum of $2005. The judgments hereinabove referred to are attached as exhibits.
The petitioner alleges that the defendant A. P. R. Coulborn purchased a house and property located on Howell Mill Road, of a stated value, and that while he was insolvent and greatly indebted to petitioner by virtue of the English decrees hereinbefore referred to he transferred that property to his present wife, the other defendant, the transfer being without any valid consideration and made for the purpose of defeating petitioner's rights. There are like allegations as to certain Danish bonds.
The prayers were: (1) That the court enjoin both defendants from transferring, selling, or conveying the property on Howell Mill Road, or in any way or manner changing the status of same. (2) For a like injunction as to the Danish bonds. (3) That in the event the defendant, Mrs. Coulborn, has heretofore disposed of the Danish bonds, a judgment in personam be rendered against her for the value thereof, to wit, $3000. (4) That the court make the English judgments the judgments of this court. (5) That the alleged transfer and conveyance of said property between A. P. R. Coulborn and his wife be declared null and void and of no effect, and the said deed be canceled. (6) That petitioner have judgment against defendant Arthur Percy Rushton Coulborn in the sum of $8894.66, and all costs of court. (7) For a rule nisi against the defendants, and for such other relief as the court may deem just and proper in the premises.
Attached to the petition as exhibits were purported copies, viz.: (A) Decree of the High Court of Justice, Chancery Division, wherein it appeared that Florence Violet Coulborn was plaintiff in an action against Arthur Percy Rushton Coulborn, and that evidence was heard, and the defendant by his counsel admitting his liability to convey to the plaintiff a certain dwelling and premises known as Firenze; further reciting that the defendant by his counsel *Page 727 undertook to pay or discharge on or before September 29, 1938, all money secured by a mortgage thereon; further reciting that, plaintiff and defendant by their counsel consenting, the decree ordering the defendant to convey to the plaintiff forthwith the dwelling-house and premises known as Firenze, subject to a mortgage of the date of September 21, 1933, but otherwise free from encumbrances, and subject to and with the benefit of the said tenancy agreement as from the 29th of September, 1938, but so that the plaintiff shall be entitled to the rent becoming payable thereunder on and after said last-named date, and that "the costs of the plaintiff of this action and counterclaim be taxed by the Taxing Master, and that the defendant do pay to the plaintiff (a) 3/4 of her taxed costs of the action, and (b) the whole of her taxed costs of the counterclaim. And it is ordered that, subject as aforesaid, this action do stand dismissed out of this court."
(B) A consent order in the High Court of Justice, Probate, Divorce, and Admiralty Division, between Florence Violet Coulborn, petitioner, and Arthur Percy Rushton Coulborn, respondent, reciting that upon hearing the solicitors for both parties, and by consent, "It is ordered that Arthur Percy Rushton Coulborn do pay or cause to be paid to Florence Violet Coulborn, the petitioner, during their joint lives and until further order or until she shall remarry, as from the date of the decree absolute herein, to wit, the 28th day of June, 1938, maintenance at and after the rate of 150 pounds per annum less tax, and the sum of 75 pounds per annum less tax, for the maintenance of the child," etc.
(C) Another order in the same High Court of Justice, Chancery Division, that the costs of the plaintiff in that action and counterclaim be taxed by the taxing master, and that defendant pay to the plaintiff (a) three fourths of her taxed costs of the action, and (b) the whole her taxed costs of the counterclaim.
(D) An order from the High Court of Justice in the same action between the same parties, that "the order for payment of costs herein dated the 7th day of February, 1938, be varied, and that Arthur Percy Rushton Coulborn, the respondent, do within fourteen days from the service of this order, and subject to the consent of the Treasury, pay to Florence Violet Coulborn c/o. of Sidney M. Wittner, 11 West Forty-second Street, New York, U.S. A., the petitioner, the sum of £85,6,8d, being the amount of her taxed *Page 728 costs as certified by a Registrar of this Division and the sum of £1, 1, od., being her assessed costs of this application."
(E) A further order in the same English court between the same parties, taxing costs as follows: "Plaintiff's costs of action at £259,15,0, of which three-fourths thereof amounts to the sum of . . . . . . . . . . . . . . . . . . . . . £194,16,3. The plaintiff's cost of the defendant's counterclaim . 31,14,8 ------------ £226,10,11.,
amounting together to two hundred and twenty-six pounds, ten shillings, and eleven pence."
To this petition the defendants filed their general demurrer on grounds as follows: (1) The plaintiff's petition sets forth no cause of action either at law or in equity. (2) A judgment of a foreign country can not be sued upon in Georgia. (3) A decree of divorce and alimony claimed to have been rendered in a foreign country can not be sued upon in Georgia. (4) A decree of an English court in personam and the affecting marital status can not be enforced by the courts of Georgia, because jurisdiction of the matter is retained by the courts of England. (5) The jurisdiction of the cause remains in the court in which the case was alleged to have been tried. (6) No right to set up a judgment of a foreign country in Georgia is alleged through common law, constitution, code, statute, or comity. (7) The decree of a foreign court can not be sued on in Georgia unless it has first been set up and established as a decree of a court of Georgia.
The demurrer was overruled, the order reciting that the special demurrers were not being considered and no ruling made thereon. To the overruling of the general demurrer Arthur Percy Rushton Coulborn and Helen Marie Coulborn excepted. 1. The case is here on general demurrer. It presents for the first time the question as to the effect, if any, to be given by the courts of this State to the judgments and decrees of a court of a foreign country. More specifically the problem is this: May a decree of an English court, rendered when both parties were citizens of that realm, which adjudges that the defendant therein *Page 729 is liable to the plaintiff in a given sum of money, be made the sole basis of relief sought here by the same plaintiff against the same defendant, so far as it establishes the fact of indebtedness between the parties? This record does not invoke any issue as to fraud, or lack of jurisdiction in the foreign court, either as to subject matter or parties. Is the English judgment conclusive here?
The solution of the controversy raised by this writ of error can not be settled by a reference to those cases dealing with judgments of other States of the American Union, because as to these the full faith and credit clause of the constitution of the United States governs, and such adjudications of necessity were made with respect to the constitutional provision on that subject in art. 4, section 1, thereof. There was in this class of cases no necessity for determining whether in the absence of such a provision in our organic law the judgments of the courts of one State would be given effect in the courts of another upon the application of the principles hereinafter examined. Between certain countries this matter has been made the subject-matter of treaties; but apparently there is no treaty between this country and the United Kingdom. As was said by Mr. Justice Gray, in Hilton v. Guyot, 159 U.S. 113, 163 (16 Sup. Ct. 139,40 L. ed. 95): "The most certain guide, no doubt, for the decision of such questions is a treaty or a statute of this country. But when, as is the case here, there is no written law upon the subject, the duty still rests upon the judicial tribunals of ascertaining and declaring what the law is, whenever it becomes necessary to do so, in order to determine the rights of parties to suits regularly brought before them. In doing this, the courts must obtain such aid as they can from judicial decisions, from the works of jurists and commentators, and from the acts and usages of civilized nations. Fremont v. United States, 17 How. 542, 557 [15 L. ed. 241]; The Scotia, 14 Wall. 170, 188 [20 L. ed. 822]; Respublica v. De Longchamps, 1 Dall. 111, 116 [1 L. ed. 59]; Moultrie v. Hunt, 23 N.Y. 394, 396."
There have arisen two different lines of authority on this question. At first the prevailing opinion was that the courts of this country would give binding effect only to judgments of the courts of such foreign countries as recognized the conclusiveness of our own judgments. The basis of these decisions was comity, or courtesy, based on reciprocity. This view was presented in Hiltonv. *Page 730 Guyot, supra; Ritchie v. McMullen, 159 U.S. 235 (16 Sup. Ct. 171, 40 L. ed. 133). See 31 Am. Jur. § 546, 46 A.L.R. 452, and cit. In Hilton v. Guyot, supra, it was ruled that a judgment rendered in France was only prima facie evidence of the justice of the plaintiff's claim, since by the laws of France judgments of other countries are reviewable on the merits. Many other courts have followed the same rule. See notes in 1 Am. D. 324, 20 L.R.A. 675, 91 Am. St. R. 539. In Ritchie v. McMullen, supra, the Supreme Court of the United States held that a judgment rendered by a court having jurisdiction of the cause and of the parties, upon regular proceedings and due notice or appearance, and not procured by fraud, in a foreign country, by the law of which, as in England and in Canada, a judgment of one of our own courts, under like circumstances, is held conclusive of the merits, is conclusive as between the parties in an action brought upon it in this country, as to all matters pleaded and which might have been tried in the foreign court.
The judgments in the record before us were rendered by the courts of England; and the case last cited is squarely in point, unless it can be distinguished from the instant case for reasons referred to hereafter in the second division of this opinion. The two rulings of the Supreme Court of the United States clearly bring out the distinction recognized by that court, to wit: As to a judgment rendered by a court of a country where our judgments are treated as only prima facie evidence of the plaintiff's right to recover, our court will not recognize it as conclusive, but as only prima facie correct; but as to one rendered by a court of a country where our judgments are treated as conclusive, we will treat theirs as conclusive.
The doctrine of reciprocity has met with much criticism. After referring to the rule, the author of Freeman on Judgments (vol. 3, § 1494) says: "But elsewhere this view has not met with favor, since the mere fact that the country whose judgment is in question would refuse to accord conclusive effect to the judgments of other countries affords no sound basis for denying such effect to its judgments, in the absence of other circumstances furnishing more rational grounds for such action. And it is safe to say that in view of the tendency to accord full faith and credit to all foreign judgments and to place them on the same basis as sister state judgments, *Page 731 many courts would refuse to countenance the doctrine of reciprocity." In Fisher v. Fielding, cited infra, rejecting the rule of reciprocity, the court observed that the object sought by the application of the principle of reciprocity "seems more political than judicial; it is not so much to administer justice in the case on trial as to compel other nations to administer justice in other cases. It may be doubted whether the accomplishment of such an object by such means fairly comes within the province of a court. Reciprocity is not a principle to be weighed in the scales of justice; it is rather a weapon to be wielded by the executive." Freeman, in § 1493 of the same volume of his work cited above, states that "No prediction in regard to future decisions is more likely to be realized than that our courts will in time place foreign judgments on the same footing which they now occupy in the mother country."
The courts of England have frequently held that an action brought in that country on a foreign judgment can not be defeated by an examination into the merits of such judgment; and these rulings have been made without reference to the doctrine of comity or reciprocity. See the authorities cited in the note in 94 Am. St. R. 539. In that excellent and comprehensive annotation the editor says: "It was inevitable that the considerations influencing the adjudications of the English courts would make themselves felt in America. Indeed the two great American jurists, Judges Kent and Story, at an early day advanced most satisfactory reasons in favor of the conclusiveness of foreign judgments. The latter in his Conflict of Laws, section 607, ably pointed out the difficulties involved in the law of foreign judgments, as it was then understood. The former, in pronouncing judgment in the year 1811, in the case of Taylor v. Boyden, 8 Johns. 173, said: `To try over again as of course every matter of fact which had been duly decided by a competent tribunal would be disregarding the comity which we justly owe to the courts of other States, and would be carrying the doctrine of re-examination to an oppressive extent. It would be the same as granting a new trial in every case and upon every question of fact. Suppose a recovery in another State, or in any foreign court, in an action for tort, as for an assault and battery, false imprisonment, slander, etc., and the defendant was duly summoned and appeared and made his defense, and the trial *Page 732 was conducted orderly and properly, according to the rules of a civilized jurisprudence, is every such case to be tried again here on the merits? I much doubt whether the rule can ever go to this length. The general language of the books is, that the defendant must impeach the judgment by showing affirmatively that it was unjust, by being irregularly or unfairly procured.'" Then follows on that and the following page a list of the cases holding that foreign judgments are conclusive. For other authorities so holding see MacDonald v. Grand Trunk Ry. Co.,71 N.H. 448 (52 A. 982, 59 L.R.A. 448, 93 Am. St. R. 550).
The grounds stated by Chancellor Kent in Taylor v. Boyden, supra, largely outweigh, it seems to us, any considerations of mere comity. With respect to a highly civilized country such as England, the home of the common law, whence originated magna charta, and where was developed and where there has always been recognized those great principles of right and justice that form the warp and woof of our own system of jurisprudence, the language in Fisher v. Fielding, 67 Conn. 91, 110 (34 A. 714, 32 L.R.A. 236, 52 Am. R. 270), which was quoted approvingly in MacDonald v. Grand Trunk R. Co., supra, seems fitting: "The maxim, interest reipublicae ut sit finis litium, is not restricted in its application to controversies or suits originating in the State before whose courts it is invoked. It does not rest on the excellence of any particular system of jurisprudence. It governs wherever the parties come, in the last resort, before a court constituted under an orderly establishment of legal procedure. No one who has been, or could have been, heard upon a disputed claim, in a cause to which he was duly made a party, pending before a competent judicial tribunal having jurisdiction over him, proceeding in due course of justice, and not misled by the fraud of the other party, should be allowed, after a final judgment has been pronounced, to renew the contest in another country. The object of courts is hardly less to put an end to controversies than to decide them justly."
The facts of this record would probably justify us in placing on the ground of comity the ruling that the English judgment is conclusive, and also perhaps as to at least one of the judgments involved our decision might be supported by the fact that it was consented to by the defendant therein; but we prefer to place it *Page 733 on what we consider the more convenient and the safest rule, and the one more consistent with sound principle, to wit: The issues having been submitted and adjudicated in an apparently regular manner to a court of competent jurisdiction of a foreign country whose laws and judicial system are not only not inconsistent with, but in harmony with, those fundamental concepts of justice under the law to which we in this country are accustomed, the judgments there rendered will be by the courts of this State held to be conclusive, and rights thereunder accruing will be enforced by the courts of this State.
2. One other contention of the plaintiffs in error remains to be considered. The point is made that the English judgments which are here shown appear not to be final judgments, and for that reason it was erroneous to refuse to sustain the general demurrer to the petition. The theory upon which this contention rests is, that generally judgments for alimony are subject to revision or modification. The insistence can not be sustained. Only one of the judgments was for alimony, or, as therein stated, for "maintenance," and as to that only the amount already accrued is being sought here. It is a chose in action and constitutes a debt, and an action can be sustained upon it. Roberts v.Roberts, 174 Ga. 645 (163 S.E. 735). See also 27 C. J. S. 1279-1280, § 328, and cases cited in the notes. Whether or not a judgment rendered in the alimony case for maintenance was subject to revision by the English court, and therefore not final, need not trouble us; for, as stated above, it is sought to be enforced here only in so far as the payments provided for thereunder have already accrued. That these authorities dealt with judgments rendered by courts of other American States, instead of by those of a foreign country, is not sufficient to differentiate them on principle.
3. The petition set forth grounds for relief, and the general demurrer was properly overruled.
Judgment affirmed. All the Justices concur.