Juneau Spruce Corp. v. INTERNATIONAL LONG. & W. UNION, 1409.

CourtUnited States District Courts. 9th Circuit. United States District Court (Hawaii)
Citation128 F. Supp. 697
Decision Date01 March 1955
Docket NumberNo. 1409.,1409.
PartiesJUNEAU SPRUCE CORPORATION, a corporation, Plaintiff, v. INTERNATIONAL LONGSHOREMEN'S & WAREHOUSEMEN'S UNION, an unincorporated association, and International Longshoremen's & Warehousemen's Union, Local 16, an unincorporated association, Defendants, and Central Pacific Bank, American Security Bank, and Bank of Hawaii, corporations, and International Longshoremen's & Warehousemen's Union, Local 142 and International Longshoremen's & Warehousemen's Union, Local 155, unincorporated associations, and ILWU Memorial Association, a non-profit corporation, Garnishees.


Howard K. Hoddick and Henshaw, Conroy & Hamilton, Honolulu, Hawaii (Howard K. Hoddick and Frank DeWitt Gibson, Jr., Honolulu, Hawaii), for plaintiff (judgment creditor).

Bouslog & Symonds, Honolulu, Hawaii (Myer C. Symonds, Honolulu, Hawaii), George R. Andersen, San Francisco, Cal., for defendants (judgment debtors), and Garnishee ILWU, Local 142.

McLAUGHLIN, District Judge.

The United States District Court for the District of Alaska, Division Number One, at Juneau, entered judgment on May 20, 1949, against the International Longshoremen's & Warehousemen's Union, hereinafter referred to as the judgment debtor, in the sum of $750,0001. The action had been brought under § 303 of the Taft-Hartley Act, 61 Stat. 136, 158(1947), 29 U.S.C.A. § 187. Judgment was affirmed by the Court of Appeals for this Circuit on May 5, 1951, 189 F.2d 177, rehearing denied June 8, 1951. The United States Supreme Court affirmed the decision on Jan. 7, 1952, 342 U.S. 237, 72 S.Ct. 235, 96 L.Ed. 275. Pursuant to 62 Stat. 958 (1948), as amended 68 Stat. 772 (1954), 28 U.S.C. § 1963,2 the judgment was registered in this district on Dec. 9, 1954, and execution issued.

28 U.S.C. § 1963 does not give a new judgment to the judgment creditor. Registration is purely a ministerial act in the enforcement of a foreign judgment. It confers upon this court no power to alter the judgment itself. Gullet v. Gullet, 5 Cir., 1951, 188 F.2d 719. Registration is different from a suit upon a judgment which is a new and independent action, not ancillary to the original action. H. C. Cook Co. v. Beecher, C.C.D.Conn.1909, 172 F. 166, affirmed 1910, 217 U.S. 497, 30 S.Ct. 601, 54 L.Ed. 855. The judgment creditor can still sue upon the Alaskan judgment in this court in an independent action, as well as register it, but can collect but once of course. Slade v. Dickinson, D.C.W.D.Mich.1949, 82 F.Supp. 416; Moore's Commentary on the U. S. Judicial Code, § 0.03(48), p. 386. His remedies remain cumulative in this situation. Town of Fletcher v. Hickman, 8 Cir., 1908, 165 F. 403. As revealed in the legislative history recorded at the time of an amendment to 28 U.S.C. § 19633, U.S.Code Cong. & Adm. News 1954, p. 3142, the plain and simple purpose of the statute is enforcement of the original judgment.

28 U.S.C. § 1963 was designed to relieve both creditors and debtors from the additional cost and harassment of further litigation which otherwise would be incident to an action on the judgment in a foreign district. U.S.Code Cong. & Adm.News, supra.4 It supplies an equivalent remedy to a suit upon a judgment. It has the same effect as a judgment of the local forum, Gullet v. Gullet, supra. Therefore, although different from a suit upon a judgment, registration is designed to achieve the same result and the legal principles of a suit upon a judgment are generally applicable to problems that may arise from registration.

28 U.S.C. § 1963 provides for the registration of a judgment. Previously, a creditor could only sue successfully upon a valid and subsisting judgment. If the statute of limitations had run upon the original judgment, it could no longer be used as the basis for a later suit unless the statute of limitations was waived. Freeman on Judgments, 5th Ed. (1925), Vol. 2, § 1063, p. 2218, note 13. Beale on The Conflict of Laws (1935), Vol. 3, § 604.4, p. 1625, note 4. The same holds true for 28 U.S.C. § 1963. A registrable judgment is one that is valid and subsisting in the jurisdiction of origin.

The issue before us is whether the judgment is one which qualifies under 28 U.S.C. § 1963 for registration. It does.

Alaskan law provides that an action upon a judgment is not barred until 10 years have passed.5 A lien secured by a judgment is for a similar 10-year period.6 The time limit as to the issuance of a writ of execution is different. Alaska Compiled Laws Annotated 1949, Vol. 3, § 55-9-737 provides that the clerk of the court shall issue the writ of execution. However, after five years have elapsed from the date of the entry of judgment the issuance of the writ is controlled by Alaska Compiled Laws Annotated 1949, Vol. 3, § 55-9-898, a statutory adaption of the common law writ of scire facias. See Freeman on Executions, 3d Ed. (1900), Vol. 1, § 95, p. 347; also compare the definition of scire facias in Black's Law Dictionary (3rd Ed.) with the Alaskan statute. The granting of execution pursuant to § 55-9-89 is not discretionary. If no valid defense is presented by the judgment debtor execution is given as a matter of course. The statute uses the mandatory words "shall be allowed of course." There is authority that unless the statute provides otherwise, execution is a matter of right, 49 C.J.S. Judgments, § 535, p. 991, citing Hagans v. Blitch, 1909, 6 Ga.App. 839, 65 S.E. 1082. Freeman on Executions, supra, § 97, p. 349, states: "The execution must issue unless the judgment has been satisfied, or has ceased to be in force through lapse of time, or the defendant has by some means been released from his liability", citing Lee v. Watkins, 1856, 13 How.Prac., N.Y., 178, 3 App.Pr. 243.

The judgment debtor would put judgments in three categories: (1) "live", where time in the jurisdiction of rendition has not run as to the judgment or writ of execution; (2) "dormant", where the time in the jurisdiction of rendition has run as to the writ of execution but not as to the judgment; and (3) "dead", where time in the jurisdiction of rendition has run as to both the writ of execution and the judgment. The judgment debtor contends that 28 U.S.C. § 1963 can be used only to register "live" judgments.

The judgment creditor never secured a writ of execution from any Alaskan court. Because more than 5 years have elapsed from the date of judgment, the judgment debtor moves to vacate the registration of the judgment, alleging it is a "dormant" one, incapable of being registered.

The leading case relied upon by the judgment debtor to support the contention that "dormant" judgments cannot be registered is Fowler v. Pilson, 1941, 74 App.D.C. 340, 123 F.2d 918, 922, certiorari denied 316 U.S. 664, 62 S. Ct. 944, 86 L.Ed. 1740. The court therein stated, "Generally speaking, dormant judgments are not enforceable within other jurisdictions which have statutes of comity in the matter of limitations." The applicable District of Columbia statute, § 343 of Title 24, D.C.Code 1929,9 is similar to the provisions of § 10428 of the Revised Laws of Hawaii, 1945.10 They both provide that if the foreign judgment is barred in the court which rendered the judgment because of lapse of time, it cannot be sued upon locally. These statutes follow the rule of Freeman on Judgments, supra, and Beale on The Conflict of Laws, supra, as to suits upon non-valid and non-subsisting judgments.

The judgment sought to be enforced in Fowler v. Pilson, was a California one. The California statute of limitations as to suits upon a judgment differs from the Alaskan statute. At the time of Fowler v. Pilson, supra, the period of limitations prescribed by the Calif. Code of Civil Procedure within which an action could be maintained upon a judgment or decree of any court of the United States or of any state within the United States was five years. However, provision was made whereby a non-valid and non-subsisting judgment because of the running of this statute of limitations could be enforced for another five years "within the sound discretion of the trial court", Faias v. Superior Court of Alameda County, 1933, 133 Cal.App. 525, 24 P.2d 567, 569; also Saunders v. Simms, 1920, 183 Cal. 167, 190 P. 806, 15 Cal.Jur. Judgments, § 260, p. 262.11 This differs from Alaskan law, where the judgment is valid and subsisting for 10 years and enforcement after 5 years is a matter of course, if no valid defenses are presented. Laches on the part of the judgment creditor is not such a defense, Town of Fletcher v. Hickman, supra. The court in Fowler v. Pilson, supra, as to the facts involved held that a California judgment is not enforceable within the District of Columbia because the mere possibility of the revival of a foreign "dormant" judgment is not sufficient to allow it to be enforced locally.

In support of the general proposition that a "dormant" judgment is not enforceable in a foreign jurisdiction, the Court of Appeals in Fowler v. Pilson, supra, cited several cases. A close analysis of these decisions fails to reveal real support for the proposition. General Electric Co. v. Hurd, C.C.Or. 1909, 171 F. 984, 987 was decided upon two grounds: first, that the judgment was "dead", so no execution could be issued upon it; and secondly, that if the judgment was only dormant, the decrees involved were capable of revival only through the discretion of the court that rendered them, so that "If the execution was issuable as of course, the right thereto would be apparent". This case supports the actual decision given in Fowler v. Pilson, supra, not the general proposition as to "dormant" judgments. In Swift & Co. v. Weston, 1930, 88 Mont. 40, 289 P. 1035, the majority held that a Nebraska judgment was "dead" and so incapable of enforcement in Montana. A dissenting opinion was based upon the theory that the judgment was only "dormant" and could be revived and...

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