Cherun v. Frishman

• Decision Date: 11 December 1964
• Docket Number: Civ. A. No. 1719-64.
• Citation: 236 F. Supp. 292
• Parties: Alex CHERUN, Plaintiff, v. Bernard Lyon FRISHMAN, Defendant.
• Court: U.S. District Court — District of Columbia

236 F. Supp. 292

Alex CHERUN, Plaintiff, v. Bernard Lyon FRISHMAN, Defendant.

Civ. A. No. 1719-64.

United States District Court District of Columbia.

December 11, 1964.

J. E. Bindeman, Leonard W. Burka, Washington, D. C., for plaintiff.

Karl G. Feissner, Washington, D. C., for defendant.

TAMM, District Judge.

This case is before the Court on cross motions by both the plaintiff and the defendant for summary judgment.

The plaintiff, Alex Cherun, has brought this action upon a judgment which he recovered against the defendant, Bernard Lyon Frishman, in the amount of $73,353.26 on January 14, 1964, in the Supreme Court of Ontario, Dominion of Canada.

The defendant first denies that the judgment was an in personam money judgment against him, and second, he asserts that if the judgment be considered as in personam the Supreme Court of Ontario lacked personal jurisdiction over the defendant to grant such a judgment.

There appears to be no genuine issue of material fact in this case, and, therefore, the Court must decide the several issues of law presented by the established facts in order to dispose of the parties' respective motions.

The undisputed facts upon which these questions arise are as follows. On December 7, 1961, the plaintiff Cherun, a resident and citizen of Ottawa, Ontario, Canada, as mortgagee, and the defendant Frishman, a United States citizen residing in the District of Columbia, as mortgagor, executed in the District of Columbia an indenture of mortgage whereby in consideration of plaintiff's paying to defendant the sum of $100,000.00 the defendant granted and mortgaged unto plaintiff a certain tract of land in Ottawa known as Lots 31 and 32 on the North side of Stewart Street. The mortgage was registered in the Registry Office for the Registry Division of the City of Ottawa on December 13, 1961 as Number 436775. The mortgage obligated defendant to pay to plaintiff the sum of $100,000.00 in various installments, with the balance being due and payable on or before December 15, 1964. Defendant failed to make payments as provided in the mortgage agreement, and on December 11, 1963 plaintiff filed suit against Frishman in the Supreme Court of Ontario asking that the mortgage be enforced by foreclosure and, pursuant to a covenant in the mortgage, seeking to recover from the defendant the sum of $70,000.00, plus interest.

Pursuant to Section 25(1) (b) of the Consolidated Rules of Practice of Ontario, Frishman was served personally in the District of Columbia with a Writ and Notice of Writ fully apprising him of the Ontario proceedings and giving him an opportunity to contest them. However, the defendant failed to appear. Thereupon, the Supreme Court of Ontario entered a default judgment against the defendant, referred the matter to a local Master, and directed that Frishman pay to the plaintiff such sum as the Master should find due the plaintiff "for principal money, interest and costs at the date of the said Master's Report." The Court further directed that upon payment of the amount due the plaintiff, the plaintiff should assign and convey the mortgaged premises to the defendant.

In accordance with such direction, the local Master took testimony and filed his Report. He found that notice had been duly served upon the defendant according to the practice of the Court. The Master concluded:

"There is due to the said Plaintiff at the date of this Report for principal, interest and costs the sum of $73,353.26."

Defendant failed and refused to pay the Ontario judgment, and plaintiff brought this suit thereon for a judgment against the defendant in the sum of $73,353.26, plus interest at the rate of 12% per annum, from January 14, 1964 until the date of judgment herein and thereafter at the rate of 6% per annum, plus costs.

The first question which these facts present is whether, and under what conditions, the courts of the United States will recognize and give effect to the judgments of the courts of foreign countries against United States citizens, and in particular to the judgments of the courts of Canada.

In Hilton v. Guyot, 159 U.S. 113, at 205-206, 16 S.Ct. 139, at 159-160, 40 L. Ed. 95, the Supreme Court answered this question in the following broad statement:

"When an action is brought in a court of this country, by a citizen of a foreign country against one of our own citizens, to recover a sum of money adjudged by a court of that country to be due from the defendant to the plaintiff, and the foreign judgment appears to have been rendered by a competent court, having jurisdiction of the cause and of the parties, and upon due allegations and proofs, and opportunity to defend against them, and its proceedings are according to the course of a civilized jurisprudence, and are stated in a clear and formal record, the judgment is prima facie evidence, at least, of the truth of the matter adjudged; and it should be held conclusive upon the merits tried in the foreign court, unless some special ground is shown for impeaching the judgment, as by showing that it was affected by fraud or prejudice, or that, by the principles of international law, and by the comity of our own country, it should not be given full credit and effect."

That case involved a suit on a French judgment, and the Supreme Court held that since France would not give conclusive effect to the judgment of the United States and other foreign countries but would inquire into the merits behind the judgment, then for want of reciprocity and based on principles of international law and comity, the courts of the United States need not give conclusive effect to the judgments of the courts of France.

On the same day of its decision in Hilton v. Guyot, the Supreme Court decided a similar case arising out of an Ontario, Canada suit. In Ritchie v. McMullen, 159 U.S. 235, 242, 16 S.Ct. 171, 174, 40 L.Ed. 133, the Court found that under "the law of England, prevailing in Canada, a judgment rendered by an American court under like circumstances would be allowed full and conclusive effect," and therefore courts of the United States should give the same effect to Canadian judgments provided, of course, that the other conditions set forth in Hilton v. Guyot are met.

The only condition which has been questioned in this case is whether the Ontario court had personal jurisdiction over the defendant to render a judgment in personam against him. The Court must presume, therefore, that the other conditions, such as notice and opportunity to be heard, were satisfied, as indeed it appears to be so. However, before deciding the ultimate issue of whether the Ontario court operated within the proper sphere of judicial power, several preliminary questions must be answered.

The first question is whether the Ontario judgment was intended to be in personam against the defendant Frishman. If it were intended only to be in rem, it would affect only the land within Ontario, and personal jurisdiction over the defendant would not be necessary. Pennoyer v. Neff, 95 U.S. 714, 733, 24 L. Ed. 565. Moreover, the plaintiff would have no personal money judgment against the defendant to enforce outside of Ontario. To answer this question, the Court must construe the Ontario judgment and the Master's Report incorporated therein.

The Supreme Court of Ontario ordered and adjudged in pertinent part as follows:

"AND IT IS FURTHER ORDERED AND ADJUDGED that the Defendant Bernard Lyon Frishman do forthwith after the making of the Local Master's Report pay to the Plaintiff what shall be found due him for principal money, interest and costs at the date of the said Report * * *" (Emphasis added)

Standing alone, the judgment obviously purports to be a personal one against the defendant Frishman ordering him to pay to the plaintiff a certain sum of money to be determined by the Local Master.

The Master subsequently filed his report and found, inter alia:

"There is due to the said Plaintiff at the date of this Report for principal, interest and costs the sum of $73,353.26." (Emphasis added.)

This appears to be in direct compliance with the order of the Court as to both the elements of the damages and the time of assessment. Therefore, the only reasonable conclusion is that the judgment and the report, taken together, intended that the plaintiff should recover from the defendant Frishman the sum of $73,353.26 for principal, interest and costs.

Defendant asserts that the only personal judgment was against another defendant, Dependable Finance Corporation, which owned mortgages subsequent to that owned by the plaintiff. It is clear, however, that the Master's finding with respect to the sum due the plaintiff from Dependable was a separate and independent finding from the liability of Frishman and was for the purpose of giving Dependable notice of the suit and an opportunity to redeem the mortgaged premises. It should be noted that the sum of $77,754.46 directed by the Master to be paid by Dependable to the plaintiff included an additional sum of $4,401.20 interest up to a date after the date of the Report and that the total was to be paid to the joint credit of the plaintiff and the Accountant of the Supreme Court of Ontario on that later date. It would be unreasonable to hold that this separate and independent finding of the Master in any way altered the Ontario court's express judgment that Frishman pay the plaintiff a sum of money, particularly in view of the specific finding of the Master in exact conformance with the order of the Court.

Next, this Court must decide whether under the circumstances of this case the local law of Ontario authorized the Ontario court to take personal jurisdiction over the defendant Frishman by way of substituted service outside of Ontario. Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278.

Rule 25(1) (b) of the Consolidated Rules of Practice of Ontario provides:

"25-(1) Service out of Ontario of a writ of summons or notice

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