Gull v. Constam

• Decision Date: 22 May 1952
• Docket Number: Civ. A. No. 3504.
• Citation: 105 F. Supp. 107
• Parties: GULL v. CONSTAM.
• Court: U.S. District Court — District of Colorado

105 F. Supp. 107

GULL v. CONSTAM.

Civ. A. No. 3504.

United States District Court D. Colorado.

May 22, 1952.

Sargent and Doman, New York City, Ranger Rogers and Walter Scherer, Denver, Colo., for plaintiff.

Max D. Melville and Edward E. Pringle, Denver, Colo., and Wayne D. Williams, Denver, Colo., for defendant.

KNOUS, District Judge.

This is an action upon a Swiss judgment. In so far as is pertinent, the complaint alleges that the plaintiff was divorced from the defendant under a final judgment of the District Court of the Canton of Zurich, Third Division, Switzerland; that the divorce decree included a money judgment in favor of the plaintiff and against the defendant, and that this judgment has not been satisfied in full. Relief is prayed for in the amount of the balance due on the foreign judgment.

The defendant has interposed a motion to dismiss the complaint for failure to state a claim on which relief can be granted. Specifically, the defendant's motion attacks the validity of the complaint upon the basis that it does not allege reciprocity in so far as the enforcement of American judgments in the courts of Switzerland is concerned. In other words, the defendant contends that a complaint which has as its object the enforcement of a foreign judgment fails to state a claim for relief under the Federal Rules of Civil Procedure unless it recites that the country which rendered the particular foreign judgment would or does give full faith and credit to a properly rendered American judgment.

Generally, as a matter of comity, the judgments of foreign courts are given conclusive effect and full faith and credit when sued upon in American courts, provided they are not tinged with fraud and the courts from which they emanated had jurisdiction over the subject matter and over the parties. Coulborn v. Joseph, 195 Ga. 723, 25 S.E.2d 576, 148 A.L.R. 984; Johnston v. Compagnie Generale Transatlantique, 242 N.Y. 381, 152 N.E. 121, 46 A.L.R. 435; 164 East Seventy-Second Street Corporation v. Ismay, 65 Cal.App.2d 574, 151 P.2d 29; Compania Mexicana, etc. v. Spann, D.C., 41 F.Supp. 907, affirmed 5 Cir., 131 F.2d 609; Truscon Steel Co. of Canada, Ltd. v. Biegler, 306 Ill.App. 180, 28 N.E.2d 623; Coudenhove-Kalergi v. Dieterle, Sup., 36 N.Y.S.2d 313; See Annotations, 148 A.L.R. 992, et seq.

In 1895, however, the Supreme Court of the United States, in Hilton v. Guyot, 159 U.S. 113, 227, 16 S.Ct. 139, 168, 40 L.Ed. 95, limited this broad doctrine of comity to the judicial decrees of those countries which award like full force and effect to American judgments. The defendant's position rests entirely on the rule announced in this decision. However, for purposes of determining the present motion, it is unnecessary to decide whether or not in the final analysis the instant action is circumscribed by the rule of the Hilton case, supra. Even if it be assumed that it does govern the matter now before this court, the absence of allegations of Swiss reciprocity does not render the complaint fatal.

Hilton v. Guyot, supra, did not hold that the judgment of a foreign country, in which American judicial proceedings are reviewable on the merits when they are sought to be enforced there, is void or unenforceable in the courts of the United States. It merely held that such judgments are not conclusive; that they are not entitled to the same full faith and credit which is accorded in the courts of any state in the Union to the judgments and judicial proceedings originating in the ...