Berry-Enright Lumber Co. v. Gardner

• Decision Date: 14 April 1937
• Docket Number: 15266.
• Citation: 7 N.E.2d 523,104 Ind.App. 9
• Parties: BERRY-ENRIGHT LUMBER CO. v. GARDNER et al.
• Court: Indiana Appellate Court

7 N.E.2d 523

104 Ind.App. 9

BERRY-ENRIGHT LUMBER CO. v. GARDNER et al.

No. 15266.

Appellate Court of Indiana, in Banc.

April 14, 1937

Louis M. Hammerschmidt and Milton A. Johnson, both of South Bend for appellant.

Seebirt Oare, Deahl & Omacht, of South Bend, for appellees.

KIME Judge.

This was an action brought by appellees on a judgment obtained by them in Lincoln county, province of Ontario, Canada, against appellant, upon which there remained due $1,205.44. The complaint alleged that the judgment had been recovered in the foreign country; that the court was a court of general jurisdiction; that the defendant had entered its appearance in said court through attorneys which gave the court jurisdiction; that the judgment had been duly rendered; that an execution had issued and that $48.75 had been secured by reason of seizure and sale of personal property belonging to the defendant in Ontario.

To this complaint the defendant answered in two paragraphs, first general denial, and, second, a paragraph of answer alleging that it was not at that time a resident of Lincoln county province of Ontario, Canada; that that court had no jurisdiction over it; that it had not employed an attorney to represent it in the cause wherein the judgment was rendered and that if such appearance was made it was made without authority, which answer was replied to by general denial. Trial was had before a jury which rendered a verdict for $1,386.24. Motion for new trial was filed and overruled and judgment was rendered on the verdict. The grounds of the motion which are properly presented are that the verdict of the jury is not sustained by sufficient evidence; that it is contrary to law; alleged error in the admission of certain evidence, and alleged error in refusing to grant a new trial for newly discovered evidence.

The judgment of a foreign court is always open to the inquiry as to jurisdiction of the parties. 15 R.C.L. § 401, Judgments. Here the jurisdiction was questioned. The appellant said the court did not have jurisdiction because personal service was not had. The appellees say that this is true but by voluntary appearance of the appellant, through attorneys, the Ontario court acquired jurisdiction of the parties. This was the main question to be decided in the St. Joseph circuit court and was decided by the jury against the appellant. The complaint of the appellees said, in effect, that we have recovered a judgment in a court of a foreign country and ask that we be given a judgment thereon here. The appellant's answer said, in effect, that the appellees are not entitled to a judgment here because the court of the foreign country did not have jurisdiction of the parties. To sustain the complaint the appellees submitted in evidence a copy of that judgment complete and regular upon its face bearing a seal and disclosing that the court in which it had been rendered had a judge and a clerk and that the foreign court had, after a trial, rendered a judgment for $1,254.15. There was evidence that the appellant had by letter corresponded with attorneys relative to the suit; that these attorneys had entered their appearance and so notified the appellant. That appellant was fully aware of the appearance by the attorneys.

It is an established rule that voluntary appearance of a party gives the court jurisdiction of that party and that jurisdiction continues throughout all subsequent...