Watkins v. Conway

PETITIONER:Watkins
RESPONDENT:Conway
LOCATION:Criminal District Court #4

DOCKET NO.: 65
DECIDED BY: Warren Court (1965-1967)
LOWER COURT:

CITATION: 385 US 188 (1966)
ARGUED: Nov 09, 1966
DECIDED: Dec 05, 1966

Facts of the case

Question

Audio Transcription for Oral Argument – November 09, 1966 in Watkins v. Conway

Earl Warren:

No. 65, Robert D. Watkins, appellant versus J.F. Conway.

Mr. Vance?

William G. Vance:

Mr. Chief Justice, and may it please the Court.

The central issue to be resolved in this case is the constitutionality of Georgia Code Section 3-701.

This statute provides for the enforcement of statute of limitations against foreign judgments, that is out-of-state judgments, for five years.

In other words, after five years you no longer have a right to enforce an out-of-state judgment in the State of Georgia.

At the same time, under Georgia law, a domestic judgment is enforceable and remains enforceable for a period of ten years.

We submit this discrimination in favor of domestic judgments and against out-of-state judgments is unconstitutional and violates both the Full Faith and Credit Clause and the Equal Protection Clause of the United States Constitution.

Now, we do not argue the Georgia cannot enact any statute of limitations against the enforcement of foreign judgments.

We are only arguing that it cannot enact a statute of limitations which discriminates in favor of its own judgments and against out-of-state judgments.

This is our sole argument.

Now, with respect to the Full Faith and Credit Clause, this Court has said in Milwaukee —

Your question with respect to the Georgia judgment [Inaudible].

William G. Vance:

Yes, sir.

[Inaudible]

William G. Vance:

No sir the way it works is for seven years, the holder of a Georgia judgment can just sit on his hands and he didn’t levy on that time.

If he does levy, then the judgment is renewed for another seven-year period, but assuming that he does not do anything with this judgment for seven years then he has an additional three-year period after that within which to bring a suit on that judgment to revive it.

So, he loses all his rights to that judgment after 10 years.

He still has an enforceable right for a period of 10 years although he loses his right to levy after seven.

In case of the foreign judgment [Inaudible]

William G. Vance:

He has no right to levy.

[Inaudible]

William G. Vance:

He has to sue, but the critical question is how long can the holder of a judgment sit on his hands before he loses his rights.

That’s a critical question.

How long is the statute on the books?

William G. Vance:

It’s been on the book since prior to 1836, Your Honor, and I’m not sure when it was enacted, but it’s been on the books for very long time.

With respect to the Full Faith and Credit Clauses, Court has said in Milwaukee County case, the very purpose of the Full Faith and Credit Clause was to alter the status of the several states as independent foreign sovereignties, each predate no obligations in credit – created under the laws by the judicial proceedings of the others and to make them integral parts of a single nation through out which a remedy upon a just obligation may be demanded as right respective of the state of origin.

We submit that if the statute is in question is allowed to be enforced in favor of domestic judgments then no longer do we have a central nation but we have a nation of individual sovereignties with respect to this Full Faith and Credit Clause.

Abe Fortas:

This one is a procedure in Georgia on foreign judgments?

William G. Vance:

You have to bring suit on the foreign judgment to — in effect turn it into a Georgia judgment.

William G. Vance:

After you serve the defendant, it turns it into a Georgia judgment and I’d like to point out that if you can keep a judgment enforced indefinitely once you have a Georgia judgment, if you levy on it within the seven-year period, you can keep it enforced for indefinite period of time for a thousand years.

A foreign judgment by attorney — by bringing suit within the five-year period, you could keep it enforced indefinitely.

The only question is: how long do you have before you loss your rights; you loss your rights on a foreign judgment after five years if you do nothing at all.

On a Georgia judgment, if you do nothing at all, you loss it after ten years.

Abe Fortas:

What’s the Georgia law with respect to the nature of the proceeding in which, as you put it, convert the foreign judgment into a Georgia judgment, what sort of issues can be raised?

William G. Vance:

Well, it’s just a common-law action which you file suit on the Florida judgment in this case.

The only issues that can be raised are lack of jurisdiction or any defense that would have been good to Florida to that judgment, they would all return that judgment after there had been a judgment.

Those are the only issues that could be raised at that time.

Abe Fortas:

Does the fact that you have that proceeding in relation to levying a permanent judgment supply any rationale or adequate basis for the distinction in terms of time?

William G. Vance:

No, sir.

We submit that it does not at all.

We submit that you have it – the same thing you have a foreign — you have a judgment, one of them is foreign and one of this domestic, we submit that it is rational for Georgia to require more astringent procedural requirements with relation to the enforcement of the foreign judgment because it’s not on record in Georgia; there has to be some way of proving it’s in Georgia.

And so, it’s rationale for them to require these additional requirements in effect requiring us to file suit on the judgment, but just because they can distinguish in this manner, it doesn’t mean they can go further and effect more severe limitations as to time against us.

That’s our contention.

In this statute [Inaudible]

William G. Vance:

There are quite a few states who’d have this type of set up where they allow different period of limitation, Your Honor.

[Inaudible]

William G. Vance:

Yes, sir, very common, very common.

[Inaudible]

William G. Vance:

No, sir.

I have not compiled it on the reason that I’m aware because there’s a quite a few state Supreme Court judgments upholding the constitutionality of this provision under the Full Faith and Credit Clause but in none of these was a question of discrimination presented.

All these cases just can any statute of limitations be applied and none of them brought up the question of whether discriminatory provision as in this case.

But they are discriminatory since nobody have ever brought one of them before as I can determine.

We submit that the cases of Hughes v. Fetter and Wells v. Simonds Abrasive decided in 1951 and 1953 read together, in fact demand a finding in this case that Full Faith and Credit has been violated.

In Hughes, the plaintiff brought suit in Wisconsin on a wrongful death action for an injury or death occurring in Illinois.

The Wisconsin Courts construed that wrongful death statute as applying only to death occurring in Wisconsin and also creating a policy against the enforcement of out-of-state wrongful death acts.

They therefore refused to enforce the Illinois wrongful death act although all the parties were Wisconsin residents involved.

This Court reversed the Wisconsin Supreme Court and stated that Full Faith and Credit required Wisconsin to enforce the Illinois wrongful death action.

They found that there was no strong policy against wrongful death as evidenced by the fact that they allowed an action in Wisconsin and for that reason, they required them to enforce the Wrongful Death Act to the Illinois.

Now, the reasoning of Hughes weren’t too clear, at least to me, until the Wells case was decided subsequently.

William G. Vance:

In that case, you had a situation where Alabama plaintiff was bringing a wrongful death action in Pennsylvania approximately one and a half years after the death of the decedent.

Pennsylvania had one year statute of limitations whereas the Alabama wrongful death statute where the accident occurred out a two-year proviso in there.

The plaintiff claimed that the – under Hughes, the two-year proviso must go with the statute and must be enforced in Pennsylvania.

This Court refused to follow Hughes to that extent because of the fact they stated that Pennsylvania applied her one-year statute of limitations both to domestic causes of action and to foreign causes of action.

I’d like to read to you this language from Wells because, I think, it’s most significant language with respect to this case.

The Court says here, “A decision in Hughes v. Fetter does not call for a change in the well-established rule that the forum state is permitted to apply its own period of limitation”.

The crucial factor in that case was that the foreign laid an uneven hand on causes of action arising within and without the forum state.

Causes of action arising in sister states were discriminated against.

Here, Pennsylvania applies a one-year limitation to all wrongful death actions wherever they may arise.

In other words, if Pennsylvania had a one-year limitation for out-of-state causes of action and a two-year limitation for its own, then clearly, in Wells by would not have been allowed to apply that statute of limitations, but here, they applied a one-year statute to all causes of action.

We submit that Georgia has discriminated as was contemplated in Wells.

They have applied a five-year statute against foreign judgment on a ten-year statute against their own.

Now, Hughes and Wells both dealt that with ordinary causes of action and I don’t think it’s questioned that the enforcement of Full Faith and Credit Clause has been much more stringent with respect to judgments rather than causes of action.

It’s been much more astringent provisions and cases were much stronger with respect to judgments and a rightly so.

So, for this reason, if this rule applied in Hughes and Wells to ordinary causes of action, it certainly would apply to judgments because judgments are given so much greater protection under the Full Faith and Credit Clause.

Now, I would like to point out that this very same statute has been before this Court in 1836 in M’Elmoyle v. Cohen.

In that case, the Supreme Court held that the statute did not violate Full Faith and Credit but in that case, the question of discrimination was not presented to the Court.

Now, all that was held in that case, we submit that was that a reasonable statute of limitations can be applied to the foreign judgment.

This case went off on the procedural — the fact that the Court said the procedural limitations could be placed on the enforcement of judgments whereas the merits of a judgment could not be attacked.

Later cases have subsequently restricted this procedural rule to affect to able to say that only procedural limitations can only be placed on the enforcement of foreign judgments if they do not discriminate, I think, the fact that this procedural rule has been so limited as brought out by the Kenney case where a statute of limit — there was a statute construed as depriving the forum state of jurisdiction of a right to enforce the judgment from another state with respect to a wrongful death action.

The Supreme Court held in that case that the forum state could not get around its constitutional obligation by a mere device of withdrawing jurisdiction.

And in the Hughes case, it was once again announced that this device could not be used.

In Hughes, it was stated, it’s well settled, that this Wisconsin cannot escape its constitutional obligations by the simple device of removing jurisdiction from Courts otherwise, competence by Court.

Hughes, of course meant that what courts otherwise dealt with this type of cause of action, they would have to deal with it, with respect to out-of-state causes of action as well as in-state causes of action.

In the Wells case, M’Elmoyle was cited.

It was cited for the proposition that the state may apply its own statute of limitations.

But Wells, of course, went on to say that states may not discriminate with respect to statute of limitations.

So that affectively limited M’Elmoyle in that case.

[Inaudible]

William G. Vance:

Oh!

William G. Vance:

No, sir, I would not question that at all.

I don’t have any complaint with that and I think that would be perfectly valid.

Your argument really is [Inaudible]

William G. Vance:

Well, I think on the Hughes and Wells, we certainly have Full Faith and Credit justification for following, but we certainly think that Equal Protection applies just as well.

We think both of these doctrines would apply.

But if you find that Equal Protection as in viewed in Full Faith and Credit apply now.

But I think, Full Faith and Credit has definite Equal Protection concepts at least under the Hughes and the Wells case.

If you read those two cases, it’s been in Full Faith and Credit Clauses which they were expressly decided.

We do, however, have definite equal protection argument and we think that both — that’s really the same argument as far as the discrimination point but we think both clauses apply, that’s basically — With respect to the Equal Protection clause, we believe that there has been a purposeful and systematic discrimination in this case against the foreign judgments and in favor of domestic judgments.

To justify this classification, there must be some — the class discriminated against must be the subject of a classification based upon reasonable differences between the favored and the disfavored classes.

The only difference here is we have a foreign judgment rather than a domestic judgment.

Now, there are certain times that you can discriminate because something is foreign rather than domestic.

For instance, the filing of court costs, many times a foreign plaintiff is required to file additional court costs because he is a foreign plaintiff.

Now this has a rationale reason or rationale reason can be assigned for it in that if he ultimately has to pay the court costs they don’t have to go out the jurisdiction to collect them which would be extremely difficult.

Here, there’s no rationale reason for applying a longer period against foreign judgment over or requiring shorter period against foreign judgments than domestic judgments.

No reason can be assigned.

We think that the cases clearly show, a few cases on this point that discrimination based merely on the fact that something occurs on it or is related to an out-of-state as opposed an in-state where there’s no rational reason for this discrimination is invalid or –

Abe Fortas:

I suppose that is really the question whether there is a reason for the distinction?

William G. Vance:

Well, under the Equal Protection clause, yes, sir that that would be a question whether there is a reason and we can find no reason.

Abe Fortas:

Is there — does Georgia have any different statute of limitations for the enforcement of domestic judgments or is that just one overall that applies to all kinds of judgments?

William G. Vance:

As I was saying, Your Honor, there’s a five-year statute limitations against out-of-state judgments.

Now with domestic judgments, the rule is that once you acquire the judgment –

Abe Fortas:

I understand that but does it apply to all judgments and there’s no special (voice overlap).

William G. Vance:

That’s right.

That applies to all Georgia domestic judgments.

Abe Fortas:

I see.

There are no special statutes differentiating among types of judgments?

William G. Vance:

That’s correct.

Abe Fortas:

Thank you.

[Inaudible]

William G. Vance:

Well, Your Honor, of course, I contend that it would but the reason —

[Inaudible]

William G. Vance:

The reason, I think, that it would be irrational would be because of the fact – I think you would have to interrelate with Full Faith and Credit Clause with the Equal Protection Clause with respect to that question, but the Full Faith and Credit Clause provides for what is an adequate record in the act of Congress under the Full Faith Credit Clause.

And, it doesn’t seem to me that they could say, for purposes of the Equal Protection that this was not an adequate record if you don’t comply with the requirements of the Full Faith and Credit Clause for use this as a basis for distinction under the Equal Protection.

That would be my answer to that.

I just don’t think that they could use that as a basis for distinction when you have complied with the requirements listed by Congress under the —

[Inaudible]

William G. Vance:

Well, I think the reason as far as the Rose it’s pretty well revealed by the M’Elmoyle case is that first, they didn’t have any statute of limitations against foreign judgments and of course domestic judgments lapsed after 20 years with the presumption of payment.

Then they decided they had to something about foreign judgment so they enacted a separate statute of limitations with respect to them.

It didn’t necessarily relate to two and, of course, this was before the Equal Protection clause and that was even inexistent as far as that was concerned.

The concepts of Equal Protection weren’t really enunciated at the time of the enactment of these statutes.

There’s just one case under the Equal Protection Clause that I would like to discuss and that’s the Power Manufacturing case and in that case, a suit was brought against a foreign corporation which had one office in Arkansas, but suit was brought in another county other than the office of the county in which it had its one office.

Now, under the Arkansas venue statutes, foreign corporations could be sued in any county whereas domestic corporations could only be sued on the counties in which they did business.

The defendant in that case objected to that statute on the grounds that it violated the equal protection.

This Court held that the statute did violate the Equal Protection because there was no reasonable basis for distinguishing between the foreign and the domestic corporation in that situation.

The reason behind the statue was obvious.

It was just to sue in the county of the residents, was just to allow — was purposes of considerations or convenience and economy.

There was no reason bear for distinguishing between the foreign and the domestic corporation.

And we submit that there’s no real reason here for distinguishing between the foreign and the domestic corporation.

Abe Fortas:

You don’t make any contention that a five-year period of limitations standing alone is unreasonable?

William G. Vance:

No, sir.

You have to look at it in the light of the problem and the domestic enforcement statutes.

Now we feel like we would be banned by M’Elmoyle which is a 1936 case if that was the case and we don’t feel that has been overruled by later decisions or any implication that it would be overruled.

[Inaudible]

William G. Vance:

Sir?

[Inaudible]

William G. Vance:

I think its pertinent because it deals the same statute but we don’t believe the same question was brought up in M’Elmoyle that would bring it up here.

[Inaudible]

William G. Vance:

Yes, sir.

[Inaudible]

William G. Vance:

Well, it’s based on the Full Faith and Credit Clause and the Equal Protection clause.

We submit that M’Elmoyle did not —

[Inaudible]

William G. Vance:

I don’t believe so, Your Honor, because I don’t think it really dealt with the issue of discrimination although it recognize–

William J. Brennan, Jr.:

[Inaudible]

William G. Vance:

Your Honor, I realize that language is in there but I believe they will face with the question of whether any statute of limitations could be enforced against foreign judgments.

Now, in order to answer this question, yes, they said: “Well, the states can put a limitation on their own judgments”.

William J. Brennan, Jr.:

May a state do you think, say you can’t recover from a foreign judgment and the state shall reduce it to a foreign judgment?

William G. Vance:

SYes, sir, I think so.

William J. Brennan, Jr.:

If they may go that far, why then they (Voice overlap) can’t fix the time?

William G. Vance:

The state — let me put it this way.

The state can put procedural limitations on the enforcement of foreign judgments as long as they do not discriminate.

William J. Brennan, Jr.:

Does my question — my question was, you have a Florida judgment.

May Georgia say, “That will not be enforced”.

May they say it in face of the Full Faith and Credit Clause, that judgment will not be enforced in Georgia until it’s been reduced to a Georgia judgment.

William G. Vance:

Yes, sir because I don’t believe these affects the substance of the right.

It’s just like the area rule of dealing with statute of limitations.

That really was a substantive measure.

They are just requiring a little bit more astringent procedure.

They are really not denied any of their rights.

They just have to go through a little bit longer procedure but they still (voice overlap) have not lost any right.

William J. Brennan, Jr.:

If a state may do that in the face of the Full Faith and Credit Clause, I don’t understand why they can’t say, and you must do it within two years or three years or five years at the time that you get a foreign judgment?

William G. Vance:

It’s my feeling Your Honor that in one case you are denying substantive rights because five versus ten and in the other you are saying that you have to go through a little bit different procedure and it may be a little bit more difficult but you can do that.

It’s not — this is not something that is impossible for you to do.

William J. Brennan, Jr.:

Well, do I understand your Georgia system is this — it’s not the M’Elmoyle involves this very statute, didn’t it?

William G. Vance:

Yes, sir.

William J. Brennan, Jr.:

In fact, the statute will be very old one; it was here 1839.

Do I understand the way your system works, if one gets a Georgia judgment, if he levies within seven years, then the judgment survives?

William G. Vance:

That’s correct.

William J. Brennan, Jr.:

If he fails within seven years to levy, then he must provided by what, an original suit on the Georgia judgment within the remaining three years?

William G. Vance:

That’s correct, sir, just like the suit on the foreign judgment at that point.

It would be the same type of suit.

William J. Brennan, Jr.:

And then the case of a foreign judgment, he has to bring this action on that judgment within five years then he gets Georgia judgment?

William G. Vance:

That’s correct.

William J. Brennan, Jr.:

To which then I guess the same things attaches.

In seven years, he must do it and if he doesn’t then within three years he has to start another suit, is that it?

William G. Vance:

That’s correct.

As I pointed out, you can keep alive the judgment indefinitely by taking certain action.

May be one of them, can or, Your Honor, be able to keep alive indefinitely.

The only question is this, how long can you sit on your hands before you loss our rights to the enforcement of the judgment and that’s basically the question.

If you look at the period now for domestic judgment to bring [Inaudible]

William G. Vance:

Yes, sir.

That’ correct.

If you only –

[Inaudible]

William G. Vance:

If you only look at that period, but the question —

[Inaudible]

William G. Vance:

Yes, sir, I think it is because the foreign judgment is not of record in the State of Georgia.

There has to be some method of making it up in the record of Georgia.

Now with Federal judgments, they will just allow you to file it on the record, but with out-of-state judgments, you have to come in and file suit.

I don’t think it’s unreasonable to require the out of state judgments to do this.

It doesn’t really deny the substantive right whereas if I wait to seven years, I’ve lost my substantive right to enforce that judgment with — after four years, I can still enforce my out-of-state judgment even though I have to go a little bit more stringent procedure to do it, if it is an out-of-state judgment.

Now, on domestic judgment, I had really lost anything substantive wheras I have with foregin judgments under the statute of limitations discriminations.

Earl Warren:

Mr. McFarland?

Martin McFarland:

Mr. Chief Justice and may it please the Court.

In respect of this case, the facts are quite brief and I would like to allude to the facts briefly and that is to say this.

Prior to 1952, Conway, the appellee, operated a trucking business in Florida.

One of his agents had a wreck.

In 1952, he was sued; a verdict was obtained in 1952 on the personsla injuries.

That verdict was allowed to stand until October 1955.

Martin McFarland:

There was no judgment entered on the verdict for some three years.

I say that that is sadly indolence on the appellant here.

Then, they waited another period from 1955 until 1960, more than five years before they proceeded to bring suit on the Florida judgment.

That is some eight years, I would say, of indolence, but nevertheless, they didn’t bring their suit.

And in answer to Mr. Justice Fortas’ question, “What is the procedure”?

This suit consisted of one page, a one-page petition with procex, merely alleging the parties, that Conway was a resident of Georgia, that he had obtained the judgment in Florida for X dollars, wherefore and prayed for of the Georgia judgment.

They waited five years, more than five years to do this, but they did it.

At that time, we then, by virtue of this code Section 3-701 which is now the question, we filed a plea of statute of limitations as provided by this section.

Motion for summary judgment was brought.

The superior court of Fulton County, Georgia granted the motion for summary judgment.

The appellant appealed it to the Supreme Court of Georgia.

The Supreme Court of Georgia upheld the constitutionality of our statute and hence, the appellant is here.

I would like to say this briefly that is, as far as the U.S. cases are concerned in Beacon versus Harwood, 20 Harwood page 22, Sherman versus Cutsley in Illinois, Make versus Meek, Iowa, Talyor versus Joe in Louisiana, Little versus McVeigh, New Jersey and Pear versus Gibb, South Carolina, Praia versus Moore from Texas.

This principle of law was held in each of those cases and I have the page citations cited in my brief.

“Full and Faith Credit to be given judgments of other states is not voilated by reasonable period of limitation upon the bringing of said suits”.

Then of course, I consider these landmark cases, the Great Western Telegraph versus Purdy in 162 U.S. page 329, Metcalf versus City of Watertown, 153 U.S. of 671.

As I cited in my brief, it is well-established that a statute limiting the time within which an action may be brought on a judgment of the court of a sister state, does not voilate the Full Faith and Credit Clause of the federal constitution.

So we have those recent holdings as a guideline.

Then, of course, we cite in our brief additional cases.

For instance, Randoff versus King, a 104 federal cases 11560 and various other cases, including a case from Tennessee which is (Inaudible).

And (Inaudible) actually antedated the McElmoyle versus Cohen, 38 US, page 312 and there this principle of law was adhered to as I set forth in the brief.

The contention that the statute of limitations as to a suit on a foreign judgment violated the Full Faith and Credit Clause of the federal constitution has been expressly overruled.

So, we have a number of the authoritiries that our definite guidelines so far as the issue raised in his question no. 1 as cited in his brief.

William J. Brennan, Jr.:

Mr. McFarland, do you know whether the 10-year statute was on the books in Georgia at the time M’Elmoyle was decided in 1839?

Martin McFarland:

Mr. Justice Brennan, I can’t positively say but I would — my best judgment leads me to believe that it is tremendously old statute.

William J. Brennan, Jr.:

Just like the five-year old?

Martin McFarland:

Yes, just like the five years.

Now, then we come to this juncture of the case.

Certainly, the forum state can apply its own statute of limitations as to a foreign judgment.

Now, in this M’Elmoyle case versus Cohen, the Court in making this holding based its reasoning that the statute of limitations was a plea to the remedy.

Martin McFarland:

It was not a plea to the merits.

It is a procedural proposition and consequently, would bar the cause of action.

Now, my brother, he cites the Wells cases and the Simons cases, but that is an entirely different proposition and I so argued on my brief.

He’s talking about there about a case involving the merits as to whether or not they would have the right to bring a tort action.

Here, this is entirely different.

We’re talking about a procedural matter, a question going to the remedy not merits.

Now, I think that so far as the holdings of this court, the holdings of the many cases throughout the several states that has the effect of the fact that it is not violated by the Full Faith and Credit, defer the fact that we do have the right as a state to impose a period of limitation upon foreign judgments as a class.

There’s no disfavouring there.

It applies to all such foreign judgments, none excluding.

Now, in getting into the question about the period of limitations, I have set forth in my brief and quote the exact code sections of our law respecting the statute of limitations so that there be no question about them.

Insofar as domestic judgments are concerned, if we have a Georgia domestic judgment, the period of limitation is seven years period.

Now, after that period of seven years, this judgment becomes dormant.

I will further say that during this period, anytime within three years, the judgment holder can then bring a petition or writ of scire facias and in this three-year dormant period, may revive his dormant seven-year old judgment for an additional three-year period.

Now, getting away from that proposition so far as the domestic judgment is concerned, let’s take the Georgia judgment of seven years.

If this holder of the judgment causes it to be levied and an entry of the sheriff made upon the Georgia judgment and placed upon the general execution docket, then that state of facts would revive the judgment for seven years without the necessity of bringing the writ of scire facias.

William J. Brennan, Jr.:

In the scire facias, is that an administrative proceeding?

It’s not the original action, is it?

Martin McFarland:

It is not an irrational proceeding, Mr. Justice Brennan —

William J. Brennan, Jr.:

Is it an adverary proceeding?

Martin McFarland:

Yes, it’s an ancillary proceeding.

William J. Brennan, Jr.:

No, is it an adversary proceeding?

Martin McFarland:

Oh!

Yes, sir.

It is an adversary proceeding in this respect.

It must be done by a petition in process and served upon the defendant in five days or the defendant in judgment.

William J. Brennan, Jr.:

Well, what kind of defense from the defendant?

Martin McFarland:

I would assume that technically it would be such defenses that would be only as to a judgment such as fraud in his procurement and things of those natures.

Now, then so much for the periods of limitation our domestic judgments.

Now, as to all foreign judgments, our statute provides a reasonable period of time: five years.

I called to the Court’s attention as I have cited in the brief the case of (Inaudible).

Martin McFarland:

This case arose from the state of Mississippi and this Court held that to be unconstitutional and the reason and justly so.

The period of limitation on foreign judgments in the State of Mississippi is cited in the (Inaudible) case was merely three months.

Certainly, it should have been declared unconstitutional because the time was certainly not reasonable.

But we submit that the five-year period as to all such foreign judgments is certainly reasonable.

Here, we have an indolent appellant that is wasted eight years and the only thing they do now is seek to attack our code section as being unconstitutional unquestionably as we are again our brief by reason of that indolence.

So we say that here we have a question of procedure.

Here we have a question of remedy and not a question of merits.

So then, would it not be proper to ask the question insofar as this state statute is concerned?

Is it reasonable in character?

Is five years a reasonable time?

We contend vigorously that it is.

Take for instance this proposition.

I cited in the motion to affirm the fact that in Florida from whence this judgment comes, Florida limitation period on domestic judgments is 20 years.

Their period of limitation on foreign judgments is seven years.

Now, even taken by their own state, Georgia from a presented standpoint is far more magnanimous in its period of time than Florida.

That’s five as compared to seven.

So, we say this.

We say that our code section of five years is reasonable.

It certainly affords a period of time, a reasonable period of time in which the appellant to bring such a suit.

We say this that the appellant in his brief has stated, surely you have the right to pass such a statute that has been no question raised – pointed out in my brother’s brief wherein the statute of five years is unreasonable, no; that the state of Georgia has no right to pass such a statute.

I might say in closing that these particular statutes are very common throughout the nation and justly so, so that a man may know where his plea stands so far as his rights are concerned and his responsibilities and in these numbers of states of the union in which I have cited wherein it is not violative of the Full Faith and Credit, we say that it is not discriminatory nor has the appellant pointed in any particular phase wherein it is discriminatory and we, therefore, ask this Honorable Court to declare this code section constitutional.

Earl Warren:

Mr. Vance?

William G. Vance:

I’d like to first point out, Your Honors, that all the cases cited by the appellee in his brief and in the argument do not involve cases where any discrimination was alleged.

All they hold is that a statute of limitation may be enacted against foreign judgments.

We do not question that proposition.

We have no argument to that proposition.

I would like to point out, I think there might have been a little confusion only as to that — while this is an Equal Protection case, it is also Full Faith and Credit case and we think we have a very good Full Faith and Credit case here.

William J. Brennan, Jr.:

Mr. M’Elmoyle I notice from your adversary brief that apparently, this 10-year statute was a section in the Act of 1823 CAB 498, is that be right?

Martin McFarland:

Yes, Your Honor but under the M’Elmoyle case, I believe –

William J. Brennan, Jr.:

But at the time M’Elmoyle was decided then, both the statutes were —

William G. Vance:

Well, it’s even worse than that as far as it goes.

I think in M’Elmoyle, they said that there was a 20-year presumption against domestic judgments at that time.

So it was 20 instead of ten (Voice overlap).

William J. Brennan, Jr.:

— that is presumption of payment?

William G. Vance:

That’s correct.

That’s what they discussed in this.

So it did exist in the M’Elmoyle but I don’t just believe that was an issue there.

It was not raised.

If you look at the argument —

William J. Brennan, Jr.:

Well, obviously the Equal Protection question could not have been raised because Fourteenth Amendment didn’t come on the books till 30 years later?

William G. Vance:

That’s correct, Your Honor, but even though this was recognized, if you look at the argument of counsel in the — prior to the opinion it’s clear that this point was not argued and that really was not considered in that context by the Court as being an argument to vitiate the statute.

If you read –

William J. Brennan, Jr.:

Well, of course, Metcalf folded extensively from M’Elmoyle and Metcalf was decided in this Court in 1893; that was after the Fourteenth Amendment.

And certainly, if I read this opinion of Chief Justice Fuller accurately, he seems think well of what Justice Wayde in said M’Elmoyle —

William G. Vance:

Well, Your Honor, if you read the Metcalf opinion, you will note that that was dealing with federal judgments (voice overlap) out-of-state judgment and the Court felt constrained to overrule a prior Wisconsin Supreme Court case interpreting its own statute so there would be no discrimination between the period of time for federal judgment as opposed to —

William J. Brennan, Jr.:

Well, there was the federal judgment in Georgia versus a Georgia judgment, that’s really what it was?

William G. Vance:

Yes, sir.

As federal versus domestic in that case and the supremacy clause was involved rather than the Full Faith and Credit Clause but I think the same considerations of policy were involved.

And there, the Court went on to overrule a Wisconsin court’s interpretation of its own statute in order not to rule the period of limitation unconstitutional.

I’d like to point out that Professor Carrie, who is probably the expert on Full Faith and Credit probably the most renown authority has felt that Hughes v. Fetter and Wells v. Simonds Abrasive were really Equal Protection cases and should have been decided on the Equal Protection Clause rather than Full Faith and Credit Clause.

Of course, Equal Protection was not raised in those two cases so it was not discussed by the case.

But he felt that this case was proper rather than Full Faith and Credit cases and should — by the same token if the same reasoning applies with respect to that statute.

Earl Warren:

Very well.