McEwan v. Zimmer

• Decision Date: 04 June 1878
• Citation: 38 Mich. 765
• Court: Michigan Supreme Court
• Parties: John McEwan v. Charles Zimmer

38 Mich. 765

John McEwan v. Charles Zimmer

Supreme Court of Michigan

June 4, 1878

Submitted April 17, 1878

Error to Wayne.

Assumpsit on a judgment. Plaintiff brings error.

Judgment affirmed with costs.

Ed. E Kane for plaintiff in error. International comity binds courts in the United States to recognize and enforce the judgments of the Canadian courts, Kennedy v. Earl, 2 Swanst. 326; Boucher v. Rawson, Cases temp. Hardwicke, 89; Roach v. Garvan, 1 Ves. Sr., 157; Henderson v Henderson, 6 Ad. & El. (N. S.), 288; Ferguson v. Mahon, 11 Ad. & El., 179; Scott v. Pilkington, 2 B. & S., 11, 41; Castrique v. Imrie, 8 C. B. (N. S.), 405; Story's Confl. Laws, §§ 603, 608; 2 Kent's Com., 121; Cummings v. Banks, 2 Barb. 605; Monroe v. Douglas, 4 Sandf. Ch., 181; Bank v. Harding, 5 Ohio 545; Rankin v. Goddard, 54 Me. 33: 55 Me. 391; Messeir v. Amery, 1 Yeates (Pa.), 541; Rapelje v. Emery, 2 Dal. 233; Barrow v. West, 23 Pick. 272; Lazier v. Westcott, 26 N. Y., 150; a foreign judgment is prima facie evidence of indebtedness under the common counts, 3 Com. Dig., Dett, (A 2); Bartlett v. Knight, 1 Mass. 405; Philips v. Hunter, 2 H. Bl., 410; Galbraith v. Neville, 5 East, 475, note; Hall v. Odber, 11 East, 123; Taylor v. Bryden, 8 Johns. 178; Pawling v. Bird's Ex'rs, 13 Johns. 206.

Prentis & Fox for defendants in error. A judgment is not valid unless the court has jurisdiction of the person of the defendant, (Borden v. Fitch, 15 Johns. 141; People v. Dawell, 25 Mich. 267; Shumway v. Stillman, 4 Cow. 292; Andrews v. Herriot, id., 508), which can be obtained only by service within its jurisdiction of notice of the pendency of the action, Hall v. Williams, 6 Pick. 232; Andrews v. Montgomery, 19 Johns. 162; Starbuck v. Murray, 5 Wend. 154; Freeman on Judgments, §§ 564, 588; a court of one sovereignty cannot subject persons or property in another to the direct effect of its judgments, orders or decrees; Wood v. Parsons, 27 Mich. 159; a special plea of want of jurisdiction is not necessary where the record shows it, Bradshaw v. Heath, 13 Wend. 407.

OPINION

Cooley, J.

This was an action upon a judgment purporting to have been rendered by the county court of county Essex, in the province of Ontario, Dominion of Canada, in favor of McEwan against Zimmer. The only question which the record presents is one of jurisdiction in the county court of Essex to render the judgment, and this arises upon the service which was made on the defendant. Zimmer, it appears, was proceeded against, as a non-resident under certain provisions of the statutes known as the Consolidated Statutes of Upper Canada, of which the sections which bear upon the case are the following:

"43. In case any defendant being a British subject, is residing out of Upper Canada, the plaintiff may issue a writ of summons in the form (A) No. 3, which writ shall bear the indorsement contained in the said form, purporting that such writ is for service out of Upper Canada, and the time for appearance by the defendant shall be regulated by the distance from Upper Canada of the place where the defendant is residing, having due regard to the means of, and necessary time for postal or other communication. (19 V., c. 43, s. 35.)

"44. Upon the court or judge being satisfied that there is a cause of action which arose in Upper Canada, or in respect of the breach of a contract made therein, and that the writ has been personally served upon the defendant, or that reasonable efforts have been made to effect personal service thereof upon the defendant, and that it came to his knowledge, and either that the defendant willfully neglects to appear to such writ, or that he is living out of Upper Canada, in order to defeat or delay his creditors, such court or judge may from time to time direct that the plaintiff shall be at liberty to proceed in the action in such manner and subject to such conditions as to such court or judge (having regard to the time allowed to the defendant to appear being reasonable and to the other circumstances of the case) may seem fit; but the plaintiff, before obtaining judgment, shall prove the amount of the debt or damages claimed by him in such action, either before a jury on an assessment in the usual mode, or by reference in the manner hereinafter provided, according to the nature of the case, as such court or judge may direct. (19 V., c. 43, s. 35.)

"45. In any action against a person residing out of Upper Canada and not being a British subject, the like proceedings may be taken as against a British subject resident out of Upper Canada, except that the plaintiff shall, instead of the summons mentioned in the forty-third section, issue a writ of summons according to the form (A) No. 4, and shall in manner aforesaid serve a notice of such last mentioned writ upon the defendant, which notice shall be in the form also contained in the said form No. 4; and such service or reasonable efforts to effect the same, shall be of the same force and effect as the service or reasonable efforts to effect the service of a writ of summons in any action against a British subject resident abroad, and by leave of the court or a judge, upon their or his being satisfied by affidavit as aforesaid, the like proceedings may be had and taken thereupon." (19 V., c. 43, s. 36.)

Zimmer, it was conceded, was not a British subject, and the record of the judgment in the county court shows that the only service made upon him was made at the city of Detroit in this State. It also shows that he did not in any manner respond to the service, and that judgment was taken against him by default. No property appears to have been attached in the province, and no jurisdiction to render the judgment is claimed unless the service in Detroit conferred it. The only question the record presents may therefore be stated as follows: Whether it is competent for a foreign court to make service of its process in this State, and on the authority of such service to proceed to judgment against a party who refuses to recognize the jurisdiction.

We had not supposed until this suit was brought to our attention that such a jurisdiction could seriously be contended for. The rule laid down by Judge Story in his Conflict of Laws has been supposed to be of universal acceptance, that "no sovereignty can extend its process beyond its own territorial limits, to subject either persons or property to its judicial decisions. Every exertion of authority of this sort beyond this limit is a mere nullity, and incapable of binding such persons or property in any other tribunals." Confl. of Laws, § 539. Mr. Wharton repeats this rule as one not questioned, Confl. of Laws, § 712; and it is believed to have been recognized in every case arising in the courts of this country in which the exact point has been presented. If any case is an exception, it has escaped our attention.

It is urged, however, that the rule in Great Britain and the British provinces is otherwise, and that comity requires that we recognize and accept the rule of jurisdiction that prevails where the judgment was rendered. The obligations of international comity, we trust, will never be questioned in this State, especially when they are invoked in behalf of our neighbors of the Dominion, with whom our relations are so intimate, and it may be added, so friendly and cordial. We should certainly never have the assurance to demand from them more than we would freely and voluntarily concede to them. True comity is equality; we should demand nothing more and concede nothing less.

The English decisions having direct bearing on the question are not very numerous. Douglas v. Forrest, 4 Bing. 686, was an action in England upon a Scotch judgment, obtained without personal service, and after notice to the defendant by the process called "horning," which may or may not have ever come to his knowledge. The validity of the judgment was recognized, and the action sustained. But an inspection of the case and a reading of the opinion of Chief Justice Best will disclose the fact that the rule as laid down by Mr. Justice Story in his treatise on the Conflict of Laws is in no manner assailed or questioned. The defendant was executor of a Scotch estate, and it was in that capacity that he was sued; and the jurisdiction was supported on the express ground that the estate was within the jurisdiction of the Scotch court, and that the defendant himself owed allegiance to that country. "To be sure," says the Chief Justice, "if attachments issued against persons who never were within the jurisdiction of the court issuing them, could be supported and enforced in the country in which the person attached resided, the legislature of any country might authorize their courts to decide on the rights of parties who owed no allegiance to the government of such country, and were under no obligation to attend its courts, or obey its laws. We confine our judgment to a case where the party owed allegiance to the country in which the judgment was so given against him, from being born in it, and by the laws of which country his property was, at the time those judgments were given, protected. The debts were contracted in the country in which the judgments were given, whilst the debtor resided in it."

In Becquet v. MacCarthy, 2 B. & Ad. 951, the judgment in question was rendered in one of the British colonies, and by the law of the colony if the defendant was absent and could not be personally served, the service was permitted to be made on the King's Attorney General for the colony. It was so made in that case--the defendant, who was an official lately domiciled in the colony, being then absent. The substituted service was sustained as sufficient. It was made within the jurisdiction of the court, and the...