Meier v. Schmidt
| Decision Date | 14 January 1949 |
| Docket Number | No. 32462.,32462. |
| Citation | 150 Neb. 383,34 N.W.2d 400 |
| Parties | MEIER v. SCHMIDT. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Dawson County; Nisley, Judge.
Action on note by Alwine Meier against Caroline Schmidt. The defendant died after the action was commenced and the plaintiff applied for an order reviving the action against the personal representative of the deceased defendant. From a judgment refusing to revive the action, the plaintiff appeals.
Affirmed.
Syllabus by the Court.
1. Treaties made by the United States are the supreme law of the land and the courts of every state are bound thereby.
2. Treaty provisions which require no legislation to make them operative are self-executing and they will ordinarily be enforced in accordance with their plain meaning unless they have been superseded or abrogated by a proper exercise of executive or legislative power.
3. The outbreak of war does not necessarily suspend or abrogate treaty provisions. When incompatibility between a treaty provision and the maintenance of a state of war exists, the treaty provision will not be given effect.
4. Section 7(b) of the Trading with the Enemy Act, 50 U.S.C.A.Appendix, § 7(b), abrogates the provisions of the Treaty with Germany under date of December 8, 1923, granting freedom of access to the courts of this country by nonresident German nationals.
5. Such section bars a nonresident enemy alien from instituting an action during the continuance of the war, or from prosecuting an action instituted before its commencement.
6. This court will take judicial notice of the fact that the war with Germany has not officially ended.
7. The existence of war and the restoration of peace are political questions to be determined by the legislative, supplemented by the executive, department of government. The failure to conclude a treaty of peace is binding upon the courts even though actual warfare has long since ceased.
W. A. Stewart, of Lexington, and Thomas & Cattle, of Seward, for appellant.
York & York, of Lexington, and Carr & Hoagland, of North Platte, for appellee.
Heard before PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.
This is an action on a promissory note. The defendant died after the action was commenced and plaintiff applied for an order revising the action against the personal representative of the deceased defendant. The trial court refused to revive the action and the plaintiff appeals.
The petition shows that one Gottlieb Niemann was the owner of certain lands in Seward County, Nebraska, on and after May 1889. In 1901 he removed to Germany, his former home. Upon the entry of the United States into World War I, Niemann thereby becoming an enemy alien, the Alien Property Custodian took possession of said lands and retained them until November 23, 1928, at which time he conveyed them to Caroline Schmidt for $27,000 pursuant to the Trading with the Enemy Act and certain executive orders issued pursuant thereto. In part settlement of the purchase price Caroline Schmidt executed and delivered her note to Gottlieb Niemann in the amount of $18,420.85, due on February 8, 1934. On December 20, 1934, Niemann assigned and delivered the note to the plaintiff. This action was commenced and service of summons personally had upon Caroline Schmidt on February 6, 1939. On April 1, 1942, an answer in the form of a general denial was filed. On July 1, 1947, plaintiff filed a motion for revivor, alleging that the defendant Caroline Schmidt died testate on January 28, 1947, and praying that the action be revived in the name of John A. Streiff, Executor of the Estate of Caroline Schmidt, Deceased. The executor filed what is denominated a special appearance in which he asserts that plaintiff is a nonresident enemy alien of the United States, that as a nonresident German national she has no right to property within this country during the period that a state of war exists between the United States and Germany, that plaintiff failed to secure permission from the United States government through the office of the Alien Property Custodian to maintain this action, and that the court does not have jurisdiction. The trial court thereafter entered an order in which it is stated ‘that this action be and the same is not revived at this time, and the cause of action therein is not revived as against said administrator for the reason that said action cannot be litigated until the termination of the war.’ The correctness of this ruling is challenged by the present appeal.
The petition shows that the case was commenced on February 6, 1939. We take judicial notice of the fact that Germany declared war on the United States on December 11, 1941. Consequently the action was properly commenced by the plaintiff as a nonresident alien. It was not until December 11, 1941, that plaintiff became an enemy alien. Did the court lose jurisdiction of the case at the time plaintiff became an enemy alien? If not, was defendant entitled to have all proceedings stayed during the period of the war?
On December 8, 1923, the United States entered into a treaty with Germany which provided: ‘Nationals of either High Contracting Party may have full power to dispose of their personal property of every kind within the territories of the other, by testament, donation, or otherwise, and their heirs, legatees and donees, of whatsoever nationality, whether resident or nonresident, shall succeed to such personal property, and may take possession thereof, either by themselves or by others acting for them, and retain or dispose of the same at their pleasure subject to the payment of such duties or charges only as the nationals of the High Contracting Party within whose territories such property may be or belong shall be liable to pay in like cases.’ Treaty with Germany of December 8, 1923, art. IV, 44 Stat. at L. 2135.
‘The nationals of each High Contracting Party shall enjoy freedom of access to the courts of justice of the other on conforming to the local laws, as well for the prosecution as for the defense of their rights, and in all degrees of jurisdiction established by law.
Treaty with Germany of December 8, 1923, art. I, 44 Stat. at L. 2133.
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