EMMA F. TAYLOR vs. WILLIAM A. STOWE.

DE COURCY, J. By the Supreme Judicial Court of Maine a divorce was decreed to Emma F. Stowe (now Emma F. Taylor and the plaintiff in this action) on April 28, 1899, and the custody of the minor children was given to her. The decree also recited: "It is further ordered and decreed that the libellee pay to the libellant the sum of three dollars per week, payable monthly, till further order of court, and in default of any of said payments

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for the space of two months, an execution is to issue therefor." It is admitted that the husband (the present defendant) appeared by attorney in the divorce proceeding.

On August 30, 1899, an execution was issued in her favor for the sum of $51, being the arrears of alimony to August 25. She was married to her present husband September 20, 1899. On September 12, 1913, on the application of the libellant, supported by an affidavit in accordance with the custom in that State, there was issued to her another execution for $2,184, being the alimony that had accrued from August 25, 1899, to August 25, 1913. The present action is brought in our courts to recover this latter sum.

It is provided by c. 62, § 11, of the Revised Statutes of Maine that "when either of the parties has contracted a new marriage since the former trial, a new trial may be granted as to alimony or specific sum decreed, on such terms as the court may impose and justice require, when it appears that justice has not been done through fraud, accident, mistake or misfortune." The main contention of the defendant is that by reason of this provision the decree of the Maine court as to alimony became subject to revision on the remarriage of the plaintiff, and that therefore it is not such a final decree as comes within the "full faith and credit" clause of the Federal Constitution.

It is now settled that "generally speaking, where a decree is rendered for alimony and is made payable in future instalments, the right to such instalments becomes absolute and vested upon becoming due, and is therefore protected by the full faith and credit clause, provided no modification of the decree has been made prior to the maturity of the instalments." White, J., in Sistare v. Sistare, 218 U. S. 1, 16. In the case of Page v. Page, 189 Mass. 85, relied on by the defendant, the demurrer was sustained because it did not appear that the plaintiff had obtained a final decree in Maine. The mere fact that the statute gave the defendant a right to apply for a new trial as to alimony when the plaintiff contracted a new marriage, does not, in our opinion, deprive the decree of its final character. Unless and until such application is filed and it is made to appear that "justice has not been done through fraud, accident, mistake or misfortune," the original decree remains, unmodified and in

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full force and effect. This renders it unnecessary to consider the right of the defendant to apply for a new trial after the three years mentioned in the statute. And it appears from the case of Stratton v. Stratton, 73 Maine, 481, referred to in the agreed facts, that the Maine court has no authority, except in cases specified by the statute, to modify an absolute decree for alimony once rendered.

It is further contended by the defendant that there was no final judgment in Maine represented by the execution annexed to the plaintiff's declaration. This objection seems to us untenable. Chapter 62, § 14, of the Revised Statutes of Maine expressly provides that the court, in the execution of the powers given to it in that chapter, "may employ any compulsory process which it deems proper, by execution, attachment or other effectual form." On August 25, 1913, monthly instalments that had accrued since August 25, 1899, were due and unpaid; and proof of that fact was furnished to the court by the customary affidavit of the libellant when she filed her application for the execution. This was in accordance with the established practice in Maine. Prescott v. Prescott, 62 Maine, 428. To the defendant's objection that no notice of this application was served on him or on his attorney of record, the language of Appleton, C. J., in the Prescott case (page 430) is applicable: "There was no occasion to issue a rule on the libellee, for he was in court by his counsel, and it being shown satisfactorily to the court, that monthly instalments due remained unpaid, the libellant was entitled to an execution for the amount." The application for an execution was not a new or independent proceeding, but was merely incidental to the original suit, in which the defendant appeared by counsel after due service of the libel. Wells v. Wells, 209 Mass. 282.

The defendant became indebted to the plaintiff for the instalments of alimony as they accrued. The decree was an enforceable judgment in the State where it was rendered; and, at the latest, after execution was issued, it was not open to revision. Our duty to give effect to it clearly results from the full faith and credit clause of the Federal Constitution. Sistare v. Sistare, 218 U. S. 1, 16.

It follows that judgment must be entered for the plaintiff in

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the sum of $2,323.78, which is the amount found due by the judge of the Superior Court. [Note p251]

So ordered.

The case was submitted on briefs.

G. S. Tafl & J. J. MacCarthy, for the defendant.

S. Bishop, for the plaintiff.