Collins v. Collins

36 So. 2d 417, 160 Fla. 732, 1948 Fla. LEXIS 849

• Court: Supreme Court of Florida
• Decided: July 27, 1948
• Status: Published

Opinions

ADAMS, J.:

This appellant brought an action in Florida on a judgment entered in the State of New York. The basis of the foreign judgment was the accruals of alimony. When the accumulations reached $6850.00 a motion was made to the Supreme Court of New York to enter a final judgment for same. It is alleged in the declaration before us that the order for payment of alimony in the first instance by the New York Court was interlocutory; that when the last and final judgment was entered by the New York Court process was duly served on defendant; that said judgment was and is final, unpaid, unreversed and is entitled to full faith and credit.

A demurrer was sustained and upon entry of judgment, plaintiff has appealed.

The first and controlling question submitted by both parties is whether the court erred in taking notice of the New York law. This record contains no allegations of the New York law. The lower court observed:

“ . . . The Court finds under New York law the judgment herein sued on does not have the necessary characteristics to invoke comity, and recognition of the same, and is not of the pattern to command full faith, credit and enforcement in this jurisdiction, ...”

There may be found some authority for a court to notice the law of a sister state. See Wigmore on Evidence, 2 Ed. Vol. 5, page 582, Sec. 2573, and Paine v. Schenectady Ins. Co., 11 R. I. 411. But by more than a score of cases covering the entire history of this court and without a single exception we have held consistent with the great weight of authority that foreign law is a fact to be plead and proven. See 20 Am. Jur., Evidence, page 70, Sec. 47; Tuten v. Gezan, 18 Fla. 751; Duke v. Taylor, 37 Fla. 64, 19 So. 172; Cohen v. Cohen, 158 Fla. 802, 30 So. (2nd) 307, Barns v. Liebig, 146 Fla. 219, 1 So. (2nd) 247 and a host of cases in the interim.

We can see no reason at this time to assume the insurmountable burden of ascertaining the statute and case law of each of the several states. If we did, the contention undoubtedly would be made that we should also take notice of the law of each sovereign nation. When the contrary has not been alleged we have assumed the law of the other state to be the same as our own. Our holdings are consistent with settled principles of law and have served the interest of our state well. We shall not extend or depart from them now.

This declaration contains an unqualified allegation that the judgment is final. If for any reason the New York law is not the same as ours in this respect the defendant should have the opportunity of pleading such facts. In the absence of a contrary showing we presume the New York law is the same as our own. Duke v. Taylor and Cohen v. Cohen, supra. If the New York law is the same in effect as ours it would seem that this is the kind of judgment our court would hold to be final. Robinson v. Robinson, 154 Fla. 464, 18 So. (2nd) 29.

Our conclusion is that the declaration stated a cause of action and it was error to sustain the demurrer.

Reversed.

THOMAS, C. J., TERRELL, SEBRING, BARNS and HOB-SON, JJ., concur. CHAPMAN, J., concurs specially.