Cukor v. Cukor

• Decision Date: 01 October 1946
• Docket Number: 1209
• Parties: JOSEPHINE CUKOR v. JOSEPH CUKOR
• Court: Vermont Supreme Court

49 A.2d 206

114 Vt. 456

JOSEPHINE CUKOR v. JOSEPH CUKOR

No. 1209

Supreme Court of Vermont

October 1, 1946

May Term, 1946.

Judgments.

1. A summons is sufficient to confer jurisdiction upon the court when it performs the function of giving notice according to the statutory requirements with such particularity as not to deceive or mislead.

2. A final judgment does not terminate a matrimonial action where there is a provision for alimony.

3. Due process does not require that personal service shall be made upon a party where the proceeding is only a continuation of litigation which is already within the jurisdiction of the Court.

4. Where a declaration in debt upon a judgment makes profert of the record of judgment, and the defendant craves and obtains oyer of the record, the defendant may have the record set forth in terms as part of the pleading; but it is his duty to see that it so appears.

5. The duly attested record of the judgment of a State is, by Article 4, 1 of the United States Constitution, and the federal statute (28 USCA para. 687 enacted under the authority thereof), entitled to such faith and credit in every court of the United States as it has by law and usage in the State from which it is taken.

6. In an action upon a judgment it is not necessary to aver the jurisdiction of the Court that rendered it either of the subject matter or of the person of the defendant, for jurisdiction is to be presumed until the contrary appears.

7. The Supreme Court will, under authority of No. 43 of the Acts of 1937, take judicial notice of provisions of a New York statute.

8. A plea to the jurisdiction, although not properly a plea in abatement, is a dilatory plea and has the same consequence as a plea in abatement, that is, where an issue of fact joined upon the plea is determined in favor of the plaintiff judgment in chief is awarded.

9. It is the duty of the Supreme Court to render such judgment as the trial court should have rendered.

ACTION OF DEBT UPON A. FOREIGN JUDGMENT. Trial by court, Windsor County Court, June Term, 1945, Hughes, J., presiding. Judgment for the defendant. Reversed, and judgment for the plaintiff.

Judgment reversed, judgment for the plaintiff and cause remanded for the assessment of damages.

Pingree & Pingree for the plaintiff.

Wilson & Keyser for the defendant.

Present MOULTON, C. J., SHERBURNE and STURTEVANT, JJ. and CLEARY and ADAMS, Supr. JJ.

OPINION

MOULTON

This is an action to recover upon a judgment rendered by the Supreme Court of Kings County, New York, against the defendant in favor of the plaintiff. The answer alleges that at the time of the judgment the New York Court had not acquired jurisdiction over the person of the defendant, because there had been no service of the writ and process upon him, and no legal notice of the pendency of the action had been given him; that at the time of the institution thereof he was not domiciled in the State of New York and was not found therein but was a legal resident and had his domicile in Sharon, in Windsor County, Vermont; that the only notice that came to him was by registered mail directed to him at Sharon, and no delivery of the writ and process was ever made to him in person within the State of New York or elsewhere otherwise than by registered mail, and that the judgment was rendered against him by default. Issue was joined upon this answer.

The trial was without a jury, and, after filing written findings of fact, the court held that the defendant was not liable because he did not have legal notice of the proceedings against him. The plaintiff has brought the cause before us on exceptions.

According to the findings, it appears that the plaintiff obtained a divorce from the defendant in the Supreme Court, Kings County, New York, on January 14, 1930. Both parties were then domiciled in the State of New York, and personal service of the petition was made on the defendant. The decree of divorce included an order for alimony in the sum of $ 65.00 a week. At some unspecified date after the divorce the defendant became a resident of Sharon, in this State. He did not comply with the order for alimony, and on July 14, 1944, on the application of the plaintiff, the New York court issued an order that the defendant show cause why an entry of judgment should not be entered against him for the arrears, which then amounted to $ 9370. This order, which was made returnable before the Supreme Court, Kings County, New York, at a special term thereof, to be held upon July 26, 1944, was issued under the provisions of § 1171 (b) of the Civil Practice Act of New York, recited that the defendant was a resident of Sharon, Vermont, and directed that the service of the order to show cause and the papers upon which it was based should be made by mailing true copies thereof by registered mail (return receipt requested) addressed to him at Sharon, on or before July 18, 1944. The defendant received the papers on July 19, but the copy of the order to show cause was defective, in that the day on or before which it was directed to be mailed was stated as "June 18," instead of July 18 as in the original.

The defendant made no appearance, and a hearing was had in the New York Court on the day set, with the result that on August 16 following judgment was entered against him in the sum of $ 9370. This is the judgment now sought to be enforced.

§ 1171 (b) of the Civil Practice Act of New York (See Gilbert-Bliss, Civil Practice of New York, annotated, Book 6-A., p. 359) is made a part of the findings, and is as follows:

"Where the husband, in an action for divorce, separation, or declaration of nullity of a void marriage, makes default in paying any sum of money as required by the judgment or order directing the payment thereof, the court may make an order directing the entry of judgment for the amount of such arrears, together with ten dollars costs and disbursements. The application for such order shall be upon such notice to the husband as the court may direct. Such judgment may be enforced by execution or in any other manner provided by law for the collection of money judgments. The relief herein provided for is in addition to any and every other remedy to which the wife may be entitled under the law."

The discrepancy between the copy of the order to show cause served upon the defendant by registered mail and the original order did not deprive the Supreme Court of Kings County, New York, of jurisdiction. "A summons is sufficient to confer jurisdiction upon the court when it performs the function of giving notice according to the statutory requirements, with such particularity as not to deceive or mislead." Codd v. Westchester Fire Ins. Co., 14 Wn.2d 600, 128 P.2d 968, 151 A.L.R. 316, 320. Where service is by copy which contains a clerical and immaterial error, which does not mislead the defendant, who is clearly notified of the court before which he is required to appear and the time of his appearance, the process is valid. Lyon v. Baldwin, 194 Mich. 118, 160 N.W. 428, L.R.A. 1917C, 148, 150, and Annotation L.R.A. 1917C, 150 ff; 42 Am Jur Process para 19; Washington County v. Blount, 224 N.C. 438, 31 S.E.2d 374. No rule can be laid down as applicable to all cases, for each must stand upon its own facts. But here we consider that the defect was clerical and immaterial and could not have confused or misled the defendant. It appears in the copy that the original order was issued on July 14, upon the plaintiff's affidavit dated July 10. The day of hearing, July 26, and the court wherein such hearing was to be had, and the place where the court would be in session, are all specifically and accurately stated. It is apparent that the date "June 18" was an error and that July 18 was intended as the day on or before which the copy was to be mailed, because it would be inconceivable that an order for service would be made before the original process has been issued from the court. Upon the question of the validity of the service by registered mail, the decision of the Appellate Division of the Supreme Court of New York, in Durlacher v. Durlacher, 173 Misc. 329, 17 N.Y.S.2d 643, is in point. The facts of that case are strikingly similar to those in the one before us. The plaintiff obtained a divorce from the defendant in the New York Supreme Court, and the judgment required the payment of alimony. After the divorce the defendant removed from the State and became a resident of Nevada. He defaulted in the payments of alimony and the plaintiff applied for an order for judgment for the arrears under § 1171-b of the Civil Practice Act. The court directed that service should be by registered mail which was done. The defendant appeared specially and contested the jurisdiction of the Court on the ground that no personal service had been made upon him. The court rejected his contention, and held (pp. 645-7, 17 N.Y.S.2d) that the statute was constitutional; that it did not provide for a new judgment, but its only purpose was to furnish a means of effective enforcement of an old judgment; that it gave the plaintiff no new right, and added nothing to the defendant's burden; that the binding obligation imposed upon the latter by the judgment of divorce was not and could not be affected by his change of residence or by his absence from the state, since a final judgment does not terminate a matrimonial action where there is a provision for alimony and the court's jurisdiction remains unimpaired and the defendant remains subject to its mandates.

It appears, therefore, that under the law of New York an order under § 1171-b is...