Rau v. Rowe

• Citation: 213 S.W. 226,184 Ky. 841
• Parties: RAU ET AL. v. ROWE.
• Decision Date: 20 June 1919
• Court: Court of Appeals of Kentucky

213 S.W. 226

184 Ky. 841

RAU ET AL. v. ROWE.

Court of Appeals of Kentucky.

June 20, 1919

Appeal from Circuit Court, Fayette County.

Claims against the estate of H. L. Rau, deceased, were filed by Nellie B. Rowe, and contested by Sophie Rau and others. From judgment for claimant, contestants appealed. Claimant seeking dismissal of the appeal, filed an answer containing a plea in abatement, and contestants file a general demurrer to the answer and plea in abatement. Demurrer sustained.

Geo. C Webb, of Lexington, for appellants.

R. J Colbert and R. L. Northcutt, both of Lexington, for appellee.

SETTLE J.

One H L. Rau, a native of Germany came to the United States in youth or early manhood, established his residence in the city of Lexington, this state, and changed his name from Rau to Rowe. Whether he became a naturalized citizen of this country does not appear, but he resided in Lexington until his death in January, 1913, having in the meantime accumulated considerable property, consisting mainly of real estate, some of which he owned individually and some of it jointly with his wife, Nellie B. Rowe, to whom he was married in 1882. He died intestate and childless, but was survived by his wife, three sisters, the appellants Sophie Rau, Julie Rau, Lina Lohss, and the infant appellants, Margaret Rau and others, children of his deceased brother Frederick Rau. As the sisters and children of the deceased brother were the nearest relatives and only heirs at law of the decedent, his entire estate descended to them under the statute, subject to the payment of his debts, the widow's right to one-half of the surplus personal property, and her right to dower in the real estate.

Shortly after the death of the decedent, his widow, the appellee Nellie B. Rowe, by an order of the Fayette county court, was appointed and duly qualified as administratrix of his estate. Following which she brought this action in the Fayette circuit court to obtain an allotment to her of dower in the real property left by the decedent and a settlement of the estate. The heirs at law named above were made defendants to the action, and as they were and are all residents of the German Empire they were proceeded against as nonresidents and constructively brought before the court. Upon being brought before the court, appellants filed a joint and several answer, in which they concurred in the appellee's prayer for a settlement of the estate, but controverted certain individual demands, and admitted others, set up by her in the petition and claimed as indebtedness due her from the decedent's estate. By the judgment of the circuit court she was allowed all of these claims. An appeal was taken to the Court of Appeals by the heirs at law from that judgment, and the judgment reversed by the latter court. See Rau et al. v. Rowe's Adm'x et al., 168 Ky. 704, 182 S.W. 846. Upon the return of the case to the circuit court other claims were filed against the estate by appellee, which were in turn contested by appellants, but that court again rendered judgment in favor of appellee, from which the heirs at law were granted and are prosecuting the present appeal.

Following appellants' filing of a transcript of the record in this court for the purpose of perfecting their appeal, appellee, seeking its dismissal, filed therein an answer, containing a plea in abatement, in which it is alleged that appellee is a native and citizen of the United States, and has never resided elsewhere, but that the appellants, including the four infants and their guardian, "each was at the time this appeal was granted, and now is, an alien enemy of the United States of America; that each of said appellants is, and was at the time this appeal was granted, a citizen and resident of the German Empire and subject of the Emperor of Germany, and that each of said appellants at the time this appeal was granted resided, and now resides, in said German Empire. And appellee says that by reason of the state of war now existing between the United States of America and the German Empire this appeal should be abated; and she prays for this and all other proper relief." Appellants filed a general demurrer to the answer and plea in abatement, and the case is now under submission on this plea and the demurrer thereto.

It appears from the record that this action, which affects property admittedly inherited by appellants from their deceased relative, H. L. Rowe, and attempts to subject a large part of it to demands of appellee in excess of her share under the statute as widow, was brought, and the defense of appellants thereto made, before war was declared between the United States and Germany, though the judgment complained of on this appeal was rendered after war was declared. So the question we are called on to decide is whether the appellants, nonresident aliens though they be, who have been made defendants to an action brought in a court of this country and deprived of their property by an alleged erroneous judgment of that court, are barred of the right of appeal to obtain its correction, by the existence of a state of war between this country and theirs, which began after the institution of the action.

From the multitude of cases found on this subject the following general principles seem to have received full recognition in England, Canada, and the United States: First. That a person of enemy nationality resident in his own country can neither institute an action in the courts of the country with which his own is at war, during the continuance of the war, nor prosecute one instituted before its commencement, but such disability continues only while he is abiding in his own country, and consequently does not exist where he is permitted to enter and remain in the country in which suit is brought, unless while therein he is carrying on trade with the enemy country, is a spy, or has been guilty of other acts of hostility. Brandon v. Nesbill, 2 Eng. Rul. Cas. 649; Robinson v. Cont. Ins. Co., 1 K. B. (Eng.) 155; Dumenko v. Swift Canadian Co., 32 Ont. L. Rep. 87; Dougler v. Hollinger Gold Mines, 34 Ont. L. Rep. 78; Crawford v. The William Penn, Pet. C. C. 106, Fed. Cas. No. 3372; Russ v. Mitchell, 11 Fla. 80; Seymour v. Bailey, 66 Ill. 288; Perkins v. Rogers, 35 Ind. 124, 9 Am.Rep. 639; Dorsey v. Thompson, 37 Md. 25; Levine v. Taylor, 12 Mass. 8; De Jarnette v. De Giverville, 56 Mo. 440; Sanderson v. Morgan, 39 N.Y. 231; Wilcox v. Henry, 1 Dall. 69, 1 L.Ed. 41. Second. That where during the pendency of an action, the plaintiff becomes an alien enemy, the the court is without legal authority to render judgment; and in such state of case a judgment rendered in a cause commenced before the beginning of the war can have no legal validity. In some jurisdictions the rule is that, where an action has been commenced before the war, the proceeding will be only suspended; but if instituted after the beginning of the war, it will be dismissed. In yet other jurisdictions it has been held that, where the plaintiff becomes an alien enemy after the institution of the action, it should be continued on the docket or dismissed without prejudice. Hutchinson v. Brock, 11 Mass. 119; Bell v. Chapman, 10 Johns. (N. Y.) 183; Korzinske v. Harris Cont. Co., 18 Quebec Pr. Rep. 97; Whelan v. Cook, 29 Md. 1; Howes v. Chester, 33 Ga. 89; Stumpf v. A. Schreiber Brewing Co. (D. C.) 242 F. 80. Third. That the liability of an alien enemy to be sued carries with it the right to use all the means and appliances of defense that might be employed by a resident citizen of the country in which the action is brought. In other words, although the existence of war closes the courts of each belligerent to the citizens of the other, it does not prevent the citizens of one belligerent, when sued, from taking proceedings for the protection of their own property against the citizens of the other when sued by the latter, for the reason of policy which suspends the right of action of an enemy alien during the war cannot and does not apply where the suit is not by one of the enemy to collect his own resources, but to subject the property of the alien to a demand asserted against him. As said in Russ v. Mitchell, 11 Fla. 80:

"It would be revolting to the rules of justice which govern a court to drag therein a party, and then say to him, 'Although you are properly before the court, you are an alien enemy and shall not be heard, yet judgment shall be rendered against you.' "

In Dorsey v. Thompson, 37 Md. 25, the rule referred to is stated as follows:

"Whether the grounds of the defense of alien enemy be the possible benefit that might result to the enemy, from allowing the plaintiff to recover, or the want of claim or right to the use of the courts of the country by the plaintiff, in consequence of his status as an enemy, the reason that creates the disability of the party as plaintiff does not apply to him as defendant. As plaintiff, the party attempts to exercise a privilege that he has forfeited, at least for the time; but, as defendant, he is sought to be made amenable for what justice may require of him. The mode and manner of acquiring jurisdiction, and making

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