Lutz v. Van Heynigen Brokerage Co.

• Decision Date: 14 November 1918
• Docket Number: 1 Div. 28
• Citation: 80 So. 72,202 Ala. 234
• Parties: LUTZ v. VAN HEYNIGEN BROKERAGE CO.
• Court: Alabama Supreme Court

80 So. 72

202 Ala. 234

LUTZ v. VAN HEYNIGEN BROKERAGE CO.

1 Div. 28

Supreme Court of Alabama

November 14, 1918

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action by E. Lutz against the Van Heynigen Brokerage Company. Plaintiff moved for a stay during the war between the United States and Germany. The motion was overruled, and plaintiff took a nonsuit, and now appeals. Affirmed.

Gregory L. & H.H. Smith, of Mobile, for appellant.

Stevens McCorvey & McLeod, of Mobile, for appellee.

SAYRE J.

Plaintiff appellant, brought this action in May, 1915. At and prior to that time, plaintiff, a German subject, resided and did business at Pensacola, Fla. A judgment for defendant was on plaintiff's appeal reversed by this court, April 26 1917. 75 So. 284. When the cause came on again for trial in the circuit court, October 27, 1917, it appeared that plaintiff had been interned as a dangerous alien at Ft McPherson in the state of Georgia, and on that ground, and because his presence as a party and a witness was necessary to the proper conduct of his case, plaintiff moved the court that the cause be stayed for the duration of the war between the United States and Germany. This motion was overruled, whereupon plaintiff took a nonsuit with a bill of exceptions.

As affecting civil rights and liabilities, it is said to be clear law that it is not his nationality, but the fact that he carries on business or voluntarily resides in an enemy country, that makes an alien enemy. Porter v. Frendenberg, 1 L.R.K.B. Div. [ 1915] 857. Therefore plaintiff was not to be considered as an alien enemy prior to his internment; but consideration of the causes for which such internment may have been ordered (U.S.Comp.Stat.1918, West Pub. Co. Ed., § 7615) lead to the conclusion that plaintiff's internment reduced him substantially to the status of an alien enemy as defined above. In Caperton v. Bowyer, 14 Wall. 216, 20 L.Ed. 882, the Supreme Court of the United States stated the rule to be universal and peremptory that, subsequent to the commencement of hostilities, enemy creditors were incapable of prosecuting any action in the tribunals of the other belligerent until after the restoration of peace. In a number of cases, however, which have arisen in England and in this country during the present war, it appears to have been held uniformly that actions instituted by plaintiffs, who subsequently became alien enemies, must be suspended until peace is declared. Porter v. Frendenberg, supra; Plettenberg v. Kalmon (D.C.) 241 F. 605; and Stumpf v. Shreiber Brewing Co. (D.C.) 242 F. 80, where is cited another English case to which we have not access. In those cases it was so ordered on the motion of the defendants. The reason and policy of such judicial action is that, if an alien enemy obtains judgment, he thereby adds to the resources of the power of which he is a subject. Cases, supra.

In the present case, it has been observed, an alien enemy plaintiff invokes the power of the court to order a suspension for the duration of the war. Plaintiff, by reason of his nationality apprehends a serious handicap in the prosecution of his suit, and suggests on appeal that the policy which allows him to further maintain an action begun before a state of war was declared should in fairness grant his motion for a suspension, and this suggestion he seeks to reinforce by reference to the generally unsatisfactory nature of a showing for an absent witness and the necessity for his...