Wilson v. Gibson

259 S.W. 491, 214 Mo. App. 219, 1924 Mo. App. LEXIS 13

• Court: Missouri Court of Appeals
• Decided: February 5, 1924
• Status: Published

Opinions

Plaintiff, a resident of the Province of Ontario, Canada, brought suit against the defendant, a resident of the city of St. Louis, such action being based upon a foreign judgment.

In 1899, the defendant borrowed from his father, Samuel Gibson, then of Ontario, Canada, the sum of $2000. He gave his father his note for the above amount, with interest, payable quarterly. The note was not paid when due, but was carried by the father up to the time of his death in 1918. After the father's death the son paid the interest to his stepmother, she being executrix, and also the mother of the plaintiff, who was a half-sister of the defendant. In 1919, suit was instituted against the defendant in Canada. Upon filing of the suit, the judge made an order giving plaintiff the right to issue summons for service on the defendant in the city of St. Louis. A written or printed form of process was issued and served on the defendant in the city of St. Louis. The service was made by one Albert G. Trester. Defendant then corresponded with a certain lawyer in Canada, which lawyer filed a motion in the case, which seems to be permissible there, the substance of which was that defendant did not and could not have time, under the requirements of the notice served upon him, to appear and defend the action. It appears that afterwards judgment was rendered against defendant. This judgment was dated the 15th day of January, 1920, which judgment was in words and figures as follows:

"The defendant not having appeared herein, it is this day adjudged that the plaintiff recover against the said defendant $2258.33 and costs to be taxed, which costs have been taxed and allowed at $63.25 as appears by Taxing Officer's Certificate dated the 15th day of January, 1920."

In our view of the case, it is unnecessary to deal at great length with the facts further than as above stated. It appears that, under the procedure in the country where the judgment was rendered, such judgment may be rendered without any appearance of the defendant other than as indicated. But, even if that be true, under the law as we view it, the judgment sued upon is insufficient upon which to base an action here.

In Bischoff v. Wethered, 76 U.S. 812, it was held that a judgment recovered in the Common Pleas at Westminster, England, against a person in the United States, without any service of process on him, or any notice of the suit other than a personal one, served on him in the city of Baltimore, has no validity in this country, even of a prima-facie character.

To give effect to appellant's contention that there was appearance in this case of a sufficient character to make the judgment valid, we would have to impeach the very judgment upon which she bases her cause of action, because such judgment recites on its face that the defendant did not appear; and, if the defendant did not appear, a judgment rendered in Canada, under such circumstances, without any proper notice or voluntary appearance, could not afford the basis of a cause of action here. [See Latimer et al. v. The Union Pacific Railway, 43 Mo. 105; Tremblay v. Insurance Co., 97 Me. 547.] Plaintiff, of course, does not contend that the service of process had in the city of St. Louis was sufficient service upon which a personal judgment could have been rendered, but contends that defendant appeared by counsel, and such was sufficient. But, as stated, to uphold this theory we would have to disregard the language used in the judgment itself. And, as held in Bischoff v. Wethered, supra, whatever validity this judgment may have in Canada by virtue of the law of that country against property of the defendant here situate, it can have no validity here. [Moss v. Fitch,212 Mo. 484, 111 S.W. 475.]

It follows, therefore, that the judgment of the circuit court should be affirmed. The Commissioner so recommends.