Frontera Transportation Co. v. Abaunza
| Decision Date | 05 March 1921 |
| Docket Number | 3484. |
| Citation | 271 F. 199 |
| Parties | FRONTERA TRANSPORTATION CO. v. ABAUNZA. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Edwin T. Merrick, Ralph J. Schwarz, and Morris B. Redmann, all of New Orleans, La., for appellant.
W. J. & H. W. Waguespack, of New Orleans, La., for appellee.
Before WALKER, BRYAN, and KING, Circuit Judges.
Frontera Transportation Company filed its bill in the United States District Court for the Eastern District of Louisiana, seeking to restrain the enforcement of a mortgage executed by it to Gonzalo Abaunza, covering certain property worth much more than $3,000, to declare said mortgage canceled as constituting a cloud on the title to the property described therein, and for general relief. The complainant was a citizen of South Dakota, and the defendant, an alien permanently resided in the Eastern District of Louisiana, and was personally served with subpoena. The property was located outside of the United States, in Mexico.
The bill averred the creation of the mortgage to secure a debt for over 86,000 pesos of Mexican money, and that it had been paid, except 42,479.50 pesos, Mexican money, principal. A tender of the principal and interest due in Mexican money and its wrongful refusal were alleged. It was also alleged that the mortgage gave to the complainant the right to tender an amount in American money equivalent at the rate of exchange quoted, on the day of payment, by the Banco Mercantil de Vera Cruz or the Banco de Londres y Mexico, located at Vera Cruz, Mexico and that complainant on June 14, 1915, tendered $600 for the principal and interest then due, being the amount in American money then equivalent at said rate of exchange for said Mexican pesos then due, which was then and there refused by the defendant, and complainant immediately deposited said sum of money with the Commercial National Bank in New Orleans, La., to the credit of the defendant, and has left it so deposited until the day of filing this suit, and now tenders said sum in court; that it has demanded of defendant the cancellation of said mortgage and the return of said notes, but defendant refuses to so cancel, or return same, and threatens to institute legal proceedings in the republic of Mexico to foreclose said mortgage; that the existence of said mortgage is a slander and cloud on the title to said property, which is worth well above the sum of $3,000.
The defendant filed an answer, in which he moved to dismiss said bill for want of jurisdiction, on the grounds: (a) That the suit is to remove a cloud and to cancel a mortgage, and is therefore one in rem of a local nature, and triable only in the country where the property is situated. (b) That if not a suit in rem, and if triable by this court, the test of jurisdiction is not the value of the property in Mexico, or of its use or enjoyment in Mexico, but the value of the notes and mortgage, which complainant states to be $600, which value it fixes at $600, and that the jurisdictional amount is therefore to be taken as less than $3,000. He also denied the making of a sufficient tender, averring that the pesos tendered were not a legal tender, and that the sum of American money equivalent to the legal tender Mexican pesos was $23,646.92. He prayed that a judgment for the sum due to him be decreed to be paid in American money, and that unless so paid in 30 days the plaintiff be enjoined from disposing of the mortgaged property or taking any proceedings to cancel said mortgage.
Considering the motion to dismiss:
1. If the property was within the jurisdiction of the United States, its statutes prescribing in which one of its courts the case should be filed would control as to jurisdiction between such courts. But where the property is wholly outside of the United States, and jurisdiction in personam of the defendant can be had, with personal service, the complainant being a citizen and the defendant an alien, the complainant is entitled to try his cause in the United States, and the existence of a right to resort to a foreign court is no answer to his complaint.
It is well settled that where a court of equity acquires jurisdiction by personal service, it can proceed in personam to compel the defendant to do all things...
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