Baskin v. Montedonico

• Decision Date: 05 December 1940
• Docket Number: No. 8361.,8361.
• Citation: 115 F.2d 837
• Parties: BASKIN v. MONTEDONICO.
• Court: U.S. Court of Appeals — Sixth Circuit

115 F.2d 837 (1940)

BASKIN v. MONTEDONICO.

No. 8361.

Circuit Court of Appeals, Sixth Circuit.

December 5, 1940.

Arthur W. Jordan, of Clearwater, Fla. (Chandler, Shepherd, Owen & Heiskell, of Memphis, Tenn., and Arthur W. Jordan, of Clearwater, Fla., on the brief), for appellant.

Earl King, of Memphis, Tenn. (King, Taylor & King, of Memphis, Tenn., on the brief), for appellee.

Before HICKS, SIMONS, and HAMILTON, Circuit Judges.

SIMONS, Circuit Judge.

The controlling question in the appeal is whether the court below, sitting in Tennessee, erred in declining to give full faith and credit to a judgment for the appellant by a Florida court on the ground of its lack of jurisdiction, thus failing to follow the mandate of Article IV, § 1, of the Constitution of the United States. There is no controversy on the facts as found in a trial to the court without a jury, and the question is one of law.

By the will of James A. Winkelman, a resident of Florida, the appellee was appointed a coexecutor and trustee of all of Winkelman's property, real and personal, with broad powers thereover, and with the obligation of paying its net income to the testator's widow, Theodosia D. Winkelman, and of providing for her care out of the corpus of the estate, if its income proved insufficient. The most valuable asset of the Winkelman estate was a parcel of improved real estate in Memphis, Tennessee, occupied under lease by the Union Chevrolet Company, and subject to mortgage. The Winkelman will was probated in Pinellas County, Florida, where the appellee and Mrs. Winkelman qualified as coexecutors. Subsequently, the appellee qualified as an executor and trustee under ancillary letters in the probate court of Shelby County, Tennessee, and proceeded to administer the Memphis property under the orders of that court, paying taxes and other debts arising out of the real estate, from rental collections. In the course of such administration it became necessary for the appellee, as executor and trustee, to file a bill in the Chancery Court of Shelby County, Tennessee, to collect rents from the Union Chevrolet Company; to seek authority to execute a new lease to it; and secure authority to refinance the mortgage. His coexecutor was made a party to the proceeding by publication; appeared therein; and upon the granting the relief prayed, surrendered certain rent notes pertaining to the real estate.

Later Mrs. Winkelman filed her bill against the appellee in the Circuit Court of Pinellas County, Florida, alleging violations of trust; failure to provide for her support, as required by the will; and praying for a report by the appellee, as executor and trustee; his removal as trustee; and the appointment of a receiver for the trust estate. The record in the Florida cause shows service on the appellee as executor and trustee of the estate of James A. Winkelman, and the entry of his appearance in such capacities. In response to an order requiring him to account for his acts as trustee, the appellee filed a report in which he stated that he had in his hands no funds, and had received none as trustee of any property in Florida; that while he had title to certain real estate in Tennessee, and funds in his possession derived therefrom, such funds were entirely without the jurisdiction of the Florida court and within the jurisdiction of the Chancery and Probate Courts of Shelby County, Tennessee, which had been administering and were continuing to administer the trust.

On August 17, 1936, an order was entered in the Florida case directing the appellee to show cause why he should not be adjudged in contempt, and why a personal judgment for $17,500 should not be entered against him for failing and refusing to file an accounting. A copy of the order was directed to be served upon the attorneys of record for the appellee. No personal service was made upon him. His counsel moved to quash the rule nisi, but did not prevail, and on August 18, 1936, a personal judgment for $13,000 was entered against the appellee in favor of a substitute trustee who had meanwhile been appointed. The substitute trustee, failing to qualify, the appellant was appointed his successor, and on May 14, 1938, filed the present suit in Tennessee upon the Florida judgment.

All of the defenses raised below, save that which challenged the jurisdiction of the Florida court to enter a personal judgment against the appellee, were overruled, and since the appellee defends the judgment of dismissal, we need give them no consideration, other than to say that no error appears in the findings or conclusions of the court in respect to them. We confine our consideration to the question of the jurisdiction of the Florida court, and base our decision upon its lack of it.

The provision in Article IV, § 1, of the Constitution of the United States, that "Full Faith and Credit shall be given in each State to the public Acts, Records, and Judicial Proceedings of every other State," and the Act of Congress passed May 26, 1790, 28 U.S.C.A. § 687, to carry it into effect, give to the judgments of each state the same conclusive effect as records in all the states as they had at home, Mills v. Duryee, 7 Cranch, 481, 484, 3 L.Ed. 411, subject, however, to the qualification that the rule does not prevent an inquiry into the jurisdiction of the court in which the original judgment was given to pronounce it or the right of the state itself to exercise authority over the person or the subject matter. It is...