Carey v. Schmeltz

• Decision Date: 31 May 1909
• Citation: 119 S.W. 946,221 Mo. 132
• Parties: CAREY et al. v. SCHMELTZ et al.
• Court: Missouri Supreme Court

119 S.W. 946

221 Mo. 132

CAREY et al. v. SCHMELTZ et al.

Supreme Court of Missouri, Division No. 1.

May 31, 1909.

1. COURTS (§ 511)—COURTS OF SISTER STATES —COMITY.

By comity, the laws of one state where a cause of action has arisen are given force in a sister state, but comity is never carried to the extent of enforcing a foreign law that is contrary to the policy of the state of the forum, or when the statute is penal.

2. COURTS (§ 511)—COURTS OF SISTER STATES —COMITY.

The full faith and credit clause of the federal Constitution (Const. art. 4, § 1) and the acts of Congress, providing that records and judicial proceedings, duly authenticated, shall have full faith and credit, do not compel a state to enforce in its courts the statute of another state, when such statute is penal or contrary to the policy of the state.

3. CONTRACTS (§ 144)—WHAT LAW GOVERNS.

Where a suit is brought in the courts of one state on a contract made in a sister state and designed to be performed there, the courts will interpret the contract according to the law of the sister state, but this is not done in obedience to the full faith and credit clause of the federal Constitution, but because of the settled rules of public and international law requiring courts to interpret contracts according to the lex loci contractus.

4. COURTS (§ 231)—SUPREME COURT—JURISDICTION —FEDERAL QUESTIONS.

An appeal from a judgment sustaining a demurrer to a petition demanding a money judgment for a little over $500, based on the statute of a sister state, on the ground that the court erred in determining that the statute is a penal statute, and not enforceable in Missouri, instead of construing the statute as one creating a debt and affording a remedy, does not raise a federal question under the full faith and credit clause of the federal Constitution, and the Supreme Court is without jurisdiction.

Appeal from Circuit Court, Jackson County. Action by J. W. Carey and another against J. F. Schmeltz and another. From a judgment for defendants on sustaining a demurrer to the petition, plaintiffs appeal. Cause transferred to the Kansas City Court of Appeals.

Lathrop, Morrow, Fox & Moore, for appellants. A. O. Lucas and Ringolsky & White, for respondents.

VALLIANT, J.

Plaintiffs sue in three counts to recover three separate money demands aggregating $521.83. The alleged cause of action accrued in Colorado, and is based on a statute of that state. A general demurrer to the petition was sustained, and, there being no further pleading, final judgment for defendants was rendered, from which the plaintiffs appealed.

The appeal was taken to this court on the idea that a federal question was involved, to wit, that in sustaining the demurrer the court did not give full faith and credit to the statute of Colorado as required by section 1, art. 4, of the Constitution of the United States. That section is in these words: "Full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state. And Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proven, and the effect thereof." Defendants were residents of Missouri, but went to Colorado, and there organized a mining corporation and embarked in the mining business in that state. By the statute law of Colorado all mining corporations were required to file a certain report within 60 days after the first day of January of their operations the preceding year, and, failing to file such report, the officers and directors became individually liable for all debts contracted by the corporation. The defendants were the officers and directors of this corporation, and they did not file the report as required by the statute. The corporation became indebted to the plaintiffs during the year to the amount of $415.01 for goods sold and delivered by them to it, and it became indebted to another concern in like manner for $64.20 and to still another to the amount of $42.67 which last two claims were duly assigned to plaintiffs, and all three were due and unpaid. Therefore they brought this suit in Jackson county, Mo. Those are substantially the facts stated in the petition. Judging from the points discussed in the briefs, it seems that the determination of the demurrer turned on the construction of the Colorado statute, it being contended on the part of defendants that it was a penal statute, and therefore not enforceable in this state, but the plaintiff contended that it created a debt and afforded a remedy. The circuit court took the defendants' view of the law, and for that reason sustained the demurrer. There is no federal question involved in this case. The most that the plaintiffs contend for is that the court misconstrued the Colorado statute; but the mere construction of the statute of another state, though it should be an erroneous construction, does not deny its invalidity. Allen v. Alleghany, 196 U. S. 458, 25 Sup. Ct. 311, 49 L. Ed. 551. If a suit is based on a statute of a sister state, the court must construe the statute, and jurisdiction to construe it is not dependent on its correct construction. Whilst under the general international law, and especially under the more intimate international law between the sister states of this Union, the laws of one state are given force and effect in another when the cause of action has arisen under the laws of the foreign or sister state, yet this is so by comity, not by extraterritorial force of the foreign law; but comity is never carried to the extent of enforcing a foreign law that is contrary to the policy of the state in which its enforcement is asked, and such comity never extends to the enforcement of a penal statute of another state. As early as 1825 the Supreme Court of the United States, per Chief Justice Marshall, said: "The courts of no country execute the penal laws of another." The Antelope, 10 Wheat. 66, 6 L. Ed. 268.

It has never been held, under...