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Messrs. Flamen B. Candler, William Jay, and Robert W. Candler for defendant in error.

Mr. Justice Day delivered the opinion of the court:

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 that ground to the defendant in error. The divorce, was absolute, and awarded to the wife the custody and care of the three minor children of the marriage, and also, as alimony, the sum of $3,000 per annum so long as she should live, to be paid in quarterly instalments of $750 each on the first day of the months of July, October, January, and April of each year. There was also granted to the wife the sum of $3,000 annually, being $1,000 for the education and maintenance of each of the three minor children, to be paid in quarterly instalments, until such children

should arrive at the age of twenty-one years respectively. Plaintiff in error was also required to give security for the payment of the alimony awarded. The decree did not reserve any right of subsequent modification or amendment. On January 13, 1899, there was due to the wife from the plaintiff in error, for arrears in alimony and allowance under the decree, the sum of $19,221.60. Upon that day, upon application to the district court of the United States for the eastern district of Pennsylvania, the plaintiff in error was adjudicated a bankrupt. The defendant in error made no proof of her claim for alimony in the bankrupt proceedings. On June 21, 1900, the plaintiff in error was granted a discharge from all debts and claims provable under the bankruptcy act. On December 12, 1901, plaintiff in error sued out a writ in the supreme court of the state of New York for an order enjoining and restraining all proceedings on behalf of the defendant in error for the collection of the arrears of alimony and allowance aforesaid. This application was denied, upon the ground, as it appears from the memorandum of the judge who rendered the decision, that the arrears of alimony were not discharged in bankruptcy. From the order denying the application an appeal was taken by the plaintiff in error to the appellate division of the supreme court of the state of New York, where the order below was affirmed. The plaintiff in error thereupon appealed to the court of appeals of the state of New York, and on June 27, 1902, the appeal was dismissed for want of jurisdiction, without any judgment of affirmance or reversal upon the merits. A writ of error was sued out seeking in this court a reversal of the judgment of the supreme court of the state of New York.

It is conceded in argument by counsel for the plaintiff in error that this case would be within the decision of this court in Audubon v. Shufeldt, 181 U. S. 577, 45 L. ed. 1010, 21 Sup. Ct. Rep. 735, if the judgment for alimony had been rendered in a court having control over the decree It is insisted, however, that, there being in with power to amend or alter the same. this case no reservation of the right to change or modify the decree, it has become the court to alter or amend, and is therean absolute judgment, beyond the power of fore discharged by the bankruptcy proceedings. Walker v. Walker, 155 N. Y. 77, 49 N. E. 663; Livingston v. Livingston, 173 N. Y. 377, 61 L. R. A. 800, 93 Am. St. Rep. 600, 66 N. E. 123. It may be admitted to be the effect of these decisions of the New York court of appeals that, in the absence of any reservation of the right to modify or amend, the judgment for alimony becomes absolute. The question presented for decision, in view of this state of the law, is, Has the decree become a fixed liability evidenced by a judgment, and therefore provable against the estate of the bankrupt, within the protection of the discharge in bankruptcy? Section 63 of the act of 1898 provides:

"Sec. 63. Debts which may be proved:"Debts of the bankrupt may be proved and allowed against his estate which are (1) a fixed liability as evidenced by a judgment or an instrument in writing, absolutely owing at the time of the filing of the petition against him, whether then payable or not, with any interest thereon which would have been recoverable at that date, or with a rebate of interest upon such as were not then payable and did not bear interest." [30 Stat. at L. 562, chap. 541, U. S. Comp. Stat. 1901, p. 3447.]

It is not contended that this section includes instalments of alimony becoming due after the adjudication, but the contention is that prior instalments have become an existing liability, evidenced by the judgment, and therefore a provable debt. While this section enumerates under separate paragraphs, the kind and character of claims to be proved and allowed in bankruptcy, the classification is only a means of describing "debts" of the bankrupt

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

his estate.

The precise question, therefore, is, Is such a judgment as the one here under consideration a debt within the meaning of the act? The mere fact that a judgment has been rendered does not prevent the court from looking into the proceedings with a view of determining the nature of the liability which has been reduced to judgment. Boynton v. Ball, 121 U. S. 457, 466, 30 L. ed. 985, 987, 7 Sup. Ct. Rep. 981. The question presented is not altogether new in this court. In the case of Audubon v. Shufeldt, 181 U. S. 577, 45 L. ed. 1010, 21 Sup. Ct. Rep. 736, Mr. Justice Gray, delivering the opinion of the court, said:

It is not to be enforced by an action at law in the state where the decree is entered, but is to be enforced by such proceedings as the chancellor may determine and adopt for its enforcement. It may be enforced by imprisonment for contempt, without violating the constitutional provision prohibiting imprisonment for debt. The decree for alimony may be changed from time to time by the chancellor, and there may be such circumstances as would authorize the chancellor to even change the amount to be paid by the husband, where he is in arrears in payments required under the decree. Hence, such alimony cannot be regarded as a debt owing from husband to the wife, and, not being so, cannot be discharged by an order in the bankruptcy court."

"Alimony does not arise from any business transaction, but from the relation of 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- 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. may require. The decree 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 negalimony 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 court having jurisdiction over the relation of husband and wife than by a court of a different jurisdiction."

It is true that in the state of New York at the time this decree was rendered there was no power to modify or alter the decree 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 proceed-ed, not in the payment of a debt, but in ings in bankruptcy:

"The liability to pay alimony is not founded upon a contract, but is a penalty

the performance of the general duty of the husband to support the wife. This case was quoted with approval by Mr. Justice

Gray in Audubon v. Shufeldt, 181 U. S. 575, 45 L. ed. 1009, 21 Sup. Ct. Rep. 735.

In Walker v. Walker, 155 N. Y. 77, 49 N. E. 663, and Livingston v. Livingston, 173 N. Y. 377, 61 L. R. A. 800, 93 Am. St. Rep. 600, 66 N. E. 123, the effect of the holdings is that a judgment for alimony, in the absence of reservation, is a fixed and unalterable determination of the amount to be contributed to the wife's support after the decree, and is beyond the power of the court to change even under the authority of subsequent legislation. These cases do not modify the grounds upon which alimony is awarded, and recognize that an alimony decree is a provision for the support of the wife, settled and determined by the judgment of the court.

In the case of Dunbar v. Dunbar, decided by this court at the October term, 1902 (190 U. S. 340, 47 L. ed. 1084, 23 Sup. Ct. Rep. 757), it was held that a contract made after divorce between husband and wife, by which the former agreed to pay the latter a certain sum of money annually for her support during her life, or so long as she remained unmarried, and also to pay a certain sum of money to her annually for the support of the minor children of the marriage, whose custody was awarded to the mother, was not discharged by a subsequent proceeding and discharge in bankruptcy. It was further held that the sum agreed to be paid for the support of the minor children was but a recognition of the liability of the father for their support, and that the fact that the annual instalments were made payable to the wife made no difference in the character of the obligation. Of this feature of the contract the court, speaking by Mr. Justice Peckham, said:

| by his discharge in bankruptcy, and if not. then we see no reason why his contract to do that which the law obliged him to do should be discharged in that way. As his discharge would not in any event terminate his obligation to support his children during their minority, we see no reason why his written contract acknowledging such obligation and agreeing to pay a certain sum (which may be presumed to have been a reasonable one) in fulfilment thereof should be so discharged. It is true his promise is to pay to the mother; but on this branch of the contract it is for the purpose of supporting his two minor children, and he simply makes her his agent for that purpose."

We think this language is equally applicable to the present case in that aspect of the decree which provides for the support of the minor children. The obligation continues after the discharge in bankruptcy as well as before, and is no more than the duty devolved by the law upon the husband to support his children, and is not a debt in any just sense.

It is urged that the amendment of the law made by the act of February 5, 1903 [32 Stat. at L. 797, chap. 487], excepting from the operation of a discharge in bankruptcy a decree for alimony due or to become due, or for the maintenance and support of the wife and minor children, is a legislative recognition of the fact that, prior to the passage of the amendment, judgments for alimony would be discharged. In Dunbar v. Dunbar, 190 U. S. 340, 47 L. ed. 1084, 23 Sup. Ct. Rep. 757, it was said that this amendment, while it did not apply to prior cases, may be referred to for the purpose of showing the legislative trend in the direction of not 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 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. 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 from the husband and father, which it has ever been the purpose of the law to enforce. Systems of bankruptcy are designed to relieve the honest debtor from the weight of indebtedness which has become oppressive, and to permit him to have a fresh start in business or commercial life, freed from the obligation and responsibilities which may have resulted from business misfortunes. Unless positively required by direct enactment the courts should not presume a design upon the part of Congress, in relieving the unfortunate debtor, to make the law a means of avoiding enforcement of the obligation, moral and legal, devolved upon the husband to support his wife and to maintain and educate his children. While it is true in this case the obligation has become fixed by an unalterable decree so far as the amount to be contributed by the husband for the support is concerned, looking beneath the judgment for the foundation upon which it rests, we find it was not decreed for any debt of the bankrupt, but was only a means designed by the law for carrying into effect, and making available to the wife and children, the right which the law gives them as against the husband

and father.

We find no error in the judgment of the Supreme Court of the State of New York, and the same is affirmed.

(196 U. S. 78)

be deemed necessarily to have been decided by that court, where the record does not show that the question was there raised.

Submitted

IN

[No. 61.]

November 10, 1904. Decided December 19, 1904.

IN ERROR to the Supreme Court of the State of Illinois to review a judgment which affirmed a judgment of the Circuit Court of Cook County, of that State, in favor of plaintiff in an action to recover certain taxes. Dismissed for want of jurisdiction.

See same case below, 202 Ill. 122, 66 N. E. 962.

The facts are stated in the opinion. Mr. William H. Barnum for plaintiff in error.

Messrs. Robert S. Iles, Robert D. Martin, and Stillman B. Jamieson for defendant in error.

Mr. Justice Day delivered the opinion of the court:

This case was submitted on briefs, together with motion to dismiss or affirm. In support of the motion to dismiss, the position taken is that no Federal question was properly raised in the state court, and therefore none is reviewable here.

The case was commenced in the circuit court of Cook county, Illinois, to recover taxes for the years 1897, 1898, 1899, and 1900, on a block of land in the Elston addition 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

GEORGE F. HARDING, Plff. in Err.,

บ.

Error to state court-Federal question.

1. Neither the petition for a rehearing, nor the petition for the writ of error, nor the assignments of error in the Federal Supreme Court, nor the certification of briefs by the clerk of the state court, can cure the failure of the record to show that a Federal question was raised and decided which would confer jurisdiction on the Federal Supreme Court of a writ of error to the state court.

2. The assertion, on a motion for new trial, that a state statute is contrary to the Fed eral Constitution, without pointing out the provision of that instrument which it is claimed to violate, does not present a Federal question which will confer jurisdiction on the Federal Supreme Court of a writ of

error to a state court.

3. A Federal question, even if presented by the claim, on a motion for a new trial in a state court, that a state statute takes property without due process of law, which the highest state court expressly refrained from passing upon because it regarded the objection waived by failure to cite authorities or advance argument in support thereof, cannot

plaintiff for the sum of $2,123.05. An inspection of the record shows that the principal controversy was over the effect of a deed made by Harding, the plaintiff in error, to the Chicago Real Estate Loan & Trust Company, dated June 10, 1896, and recorded July 2 of the same year, which conveyed, for the consideration of $5, "all interest in the following described real estate, to wit: Any and all lands, of every kind and description, claimed or owned by me in the state of Illinois, and all lots and lands, of every description, in the city of Chicago, in which I have any right, title, or interest whatsoever, situated in the state of Illinois," etc. It was the contention of the state that this deed was too general in its terms to convey specific property, and was therefore insufficient notice to the taxing officer of Cook county that the ownership of the property had changed.

The trial court admitted this deed in evidence, subject to this objection. 'Upon appeal to the supreme court of Illi

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 the proper assessment book or roll, or other competent proof."

"Conceding that the deed, if it stood alone, would overcome the prima facie case 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, 106 Ill. 270. As to that tax he clearly could not, in this proceeding, attack the validity of the former judgment. Moreover, 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 weight of the evidence it can be so considered, has therefore been is that he continued, after the pretended conveyance, to deal with the premises as his own.

"In the light of all the evidence in the case it is very clear that the conveyance of June 10, 1896, was merely colorable, and not executed with the honest purpose of conveying the absolute ownership of the property to the grantee." 202 Ill. 122, 66 N. E. 962.

Much of the elaborate brief of the counsel for plaintiff in error is devoted to a discussion of alleged errors of the supreme court of Illinois in deciding questions which, it is alleged, were not properly made, or in failing to give due weight to matters of evidence in the record. This court has no general power to review or correct the decisions of the highest state court, and in cases if this character exercises a statutory jurisdiction to protect alleged violations, in state decisions, of certain rights arising under Federal authority. Central Land Co. v. Laidley, 159 U. S. 103, 40 L. ed. 91, 16 Sup. Ct. Rep. 80; Marchant v. Pennsylvania R. Co. 153 U. S. 380, 38 L. ed. 751, 14 Sup. Ct. Rep. 894.

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dismiss raises the question whether this objection was properly reserved in the state court. Upon the constitutionality of this act the supreme court of Illinois said:

waived."

In the petition for allowance of a writ of error, and the assignment of errors in this court, it is alleged that the supreme court of the state erred in holding that the constitutional objection had been waived. And the plaintiff in error appears to have put upon file here, without leave, the briefs and petition for rehearing below, in which it is insisted there is sufficient to show that the constitutional objection was not abandoned. But neither the petition for a rehearing or petition for writ of error in the state court after judgment, or assignments of error in this court, can supply deficiencies in the record of the state court, if any exist. Simmerman v. Nebraska, 116 U. S. 54, 29 L. ed. 535, 6 Sup. Ct. Rep. 333. Nor does the certification of the briefs by the clerk of the state supreme court, which are no part of the record, help the matter. Zadig v. Baldwin, 166 U. S. 485, 41 L. ed. 1087, 17 Sup. Ct. Rep. 639. We are to try the case upon the duly certified record, legally made in the state court, and upon which its decision rests. Powell v. Brunswick County, 150 U. S. 433, 439, 37 L. ed. 1134, 1136, 14 Sup. Ct. Rep. 166.

An examination of the record discloses that the assignment of errors in the supreme court of Illinois does not directly raise the point under consideration. It is referred to in the following language of the assignment of errors:

The proceeding was brought under 230, chapter 120, 3 Starr & C. Anno. Stat. of Illinois, 3501. This section provides: "In any such suit or trial for forfeited taxes, the fact that real estate or personal property is assessed to a person, firm, or corporation shall be prima facie evidence 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 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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