Ouseley v. Lehigh Valley Trust & Safe-Deposit Co.

84 F. 602, 1897 U.S. App. LEXIS 2984

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: November 23, 1897
• Docket: No. 62
• Status: Published

Opinion

DALLAS, Circuit Judge.

Four causes of demurrer are assigned by the defendant to the plaintiff’s statement of his cause of action, but these need not be severally considered, inasmuch as in the brief presented on behalf of the defendant it is said that the questions intended to be raised by the demurrer are (1) whether this action can be maintained notwithstanding the fact that it appears that the judgment of the Canadian court now sued upon was obtained without service on the defendants, and without appearance by them; and (2) whether, aside from the first question, the plaintiff, as assignee of that judgment, can maintain an action thereon in his own name.

1. The first point is, in my opinion, not well taken. It need not be questioned — it is, I think, unquestionable — that, if the defendants had been then citizens of the United States, the judgment, which was entered by the Canadian court without actual notice to or appearance by them, of whatever validity there against property of the de-fondants (.here situate, could have no validity here, even of a prima facie character. Bischoff v. Wethered, 9 Wall. 812, 814. But the statement of claim expressly asserts that the court which rendered the judgment was, at the time of its rendition, a court of record, duly constituted, and of general jurisdiction, and that it had jurisdiction not only of the subject-matter, but also of the parties to tlie action; and this general averment is supplemented by the specific allega tion that Amable B. Bonneville, whose executor is defendant here, “was then a resident and subject of said dominion and empire.” In view of these statements of fact, I cannot sustain the demurrer , upon the ground now under consideration. The law upon the subject was, I think, well stated in Schisby v. Westenholz (1870-71) L. R. 6 Q. B. 155, where Blackburn, J., at pages 160 and 161, said:

“Again, it was argued before us that foreign judgments obtained by default, where the citation was [as in the present case] by an artiiieial mode prescribed by the laws of the country in which the judgment was given, were not enforceable in this country, because such a mode of citation was contrary to natural justice. Now, on this we think some things are quite clear on lu'meiple. If tlie defendants had been, at the time of the judgment, subjects of the country whose judgment is sought to be enforced against them, we think that its laws would have bound them. Again, if the defendants had been, at the time the suit was commenced, residents in tlie country, so as to have the benefit of its laws protecting them, or, as it is sometimes expressed, owing temporary allegiance to that country, we think that its laws would have bound them.”

The application of this language to the case in hand need not be pointed out; it is obvious.

2. The brief on behalf of the defendant quite forcibly opposes the right of the, plaintiff assignee to maintain this action in his own name, but, though otherwise quite exhaustive, the plaintiff’s brief is wholly silent upon this question. Under these circumstances, and in view of the fact that this particular objection, if well founded, may, perhaps, be overcome by amendment, I deem it: inadvisable to uow pass upon it. Accordingly, the demurrer will be retained for further consideration, and with leave to either party to move the court in the premises as may be advised.