Universal Adjustment Corp. v. Midland Bank, Limited, of London

CourtUnited States State Supreme Judicial Court of Massachusetts
Citation281 Mass. 303
Decision Date03 January 1933

281 Mass. 303


Supreme Judicial Court of Massachusetts, Suffolk.

January 3, 1933

February 5, 1932.

Present: RUGG, C.


Practice, Civil, Parties, Motion to decline jurisdiction, Exceptions, Appeal, Common Law Rule 23 of the Superior Court (1923), Waiver, Brief before Supreme Judicial Court. Rules of Court. Trustee Process. Jurisdiction. Assignment. Comity. Constitutional Law, Due process of law, Equal protection of the law, Treaty rights. Treaty. Pleading, Civil, Nature of document. Waiver.

Under Common Law Rule 23 of the Superior Court (1923), a judge may hear a motion, grounded on facts which are verified by an affidavit, on testimony given by witnesses or on the affidavit, or on both.

Where a plaintiff in an action alleged exceptions to and appealed from an order dismissing the action after hearing of a motion by the defendant [281 Mass. 304] that the court decline jurisdiction of the action, the plaintiff's rights were fully protected by the exceptions and the appeal was dismissed as improvident. At the hearing of a motion by the defendant in an action in the Superior

Court that the court decline jurisdiction thereof, it appeared that the plaintiff was a Massachusetts corporation; that the defendant was a bank doing business solely in England and Wales and having no place of business here; that the plaintiff, as the assignee of a corporation organized under the laws of the Empire of Russia and having no place of business here, sought to recover a deposit which had been made by that corporation in the defendant bank previous to the Russian revolution of

1917 and which was payable in London on demand; that the defendant was amply able to respond in damages to the full amount of the deposit and interest; that an adequate remedy was open in the English courts to seek the deposit; that the action was by way of trustee process, under which the plaintiff had secured attachments of funds of the defendant in the hands of trustees in this Commonwealth; that no service had been made on the defendant other than by way of a notice to it; that the organization of the plaintiff here and the assignment to it were for the purpose of bringing the action here; that the validity of the assignment and claims of others to the deposit were in question, and determination thereof involved the laws of the Russian Empire and the laws and decrees of

Soviet Russia, which England had recognized but which the United States had not, and also involved the laws of England; that it was doubtful whether, under the English law, satisfaction of a judgment in the action here would protect the defendant pro tanto against those found entitled to the deposit by the English courts; that retention of jurisdiction of the action would precipitate many similar actions; and that the avoidance of great expense to the defendant and the courts of this Commonwealth, and an easier and more effective determination of the cause of action, would result from a trial in England. The motion was allowed and the action dismissed. Held, that

(1) Although the plaintiff, as an assignee of a transitory, non-negotiable chose in action, was enabled, by G.L. (Ter. Ed.) c. 231,

Section 5, to bring the action in its own name, nevertheless all defences which would have been open against its assignor, the Russian corporation, including any defence in the nature of abatement, were available to the defendant in this action;

(2) The general rule, that a resident of a State may resort to its courts as of right to enforce obligations personal to himself against a nonresident, provided jurisdiction over the nonresident can be obtained, was not applicable in the circumstances: the question of the right of the court to assume or to decline jurisdiction was to be decided on the same basis as that on which it would have been decided had the action been brought by the Russian corporation, a foreign corporation, against the defendant, another foreign corporation, neither having a place of business here;

(3) In such circumstances, the parties had a standing in the courts [281 Mass. 305] of this Commonwealth, not as matter of strict right, but only as matter of comity;

(4) The principle of comity applicable was that where, in a broad sense, the ends of justice strongly indicate that the controversy may be more suitably tried elsewhere, then jurisdiction should be declined and the parties relegated to relief to be sought in another forum;

(5) It was within the powers of the Superior Court to determine that it should decline jurisdiction of the action under the doctrine of forum non conveniens;

(6) So far as the decision of the trial judge to decline jurisdiction of the action involved the exercise of his discretion, no abuse of discretion appeared;

(7) The allowance of the defendant's motion and the dismissal of the action violated no right of the plaintiff to due process of law and the equal protection of the law under the Constitution of this Commonwealth and the Constitution of the United States;

(8) Assuming that it was open to the plaintiff to invoke rights under a treaty previously made between the United States and the Imperial

Russian Government, whereby corporations domiciled in one of the two countries were given "the right to appear before the courts" of the other country, both the words of the treaty and the history of its making showed that its purpose was merely to place such corporations on an equal footing with other corporations in a similar situation, and not to give to Russian corporations greater rights and privileges in courts in the

United States than other litigants had; and there was nothing in the treaty inconsistent with the action taken by the trial judge;

(9) There was no error in the allowance of the defendant's motion or in the dismissal of the action. The defendant's motion in the action above described was entitled

"Motion of Defendant . . . that the Court Decline Jurisdiction. . . ." Held, that

(1) A contention by the plaintiff, that the defendant should have filed an answer in abatement, was made too late when it was made for the first time in a supplemental brief filed with the trial judge long after the hearing before him had been concluded;

(2) The character of the motion was to be determined from its essential substance and not from its title;

(3) The substance of the motion was adequate to bring the subject to judicial attention. A statement by an excepting party in his brief in this court, that he

"insists upon every exception to the evidence and to the rulings and refusals to rule of the court set forth in the record, although they may not be specifically covered by the argument," did not require this court to deal with exceptions not argued, nor prevent it from treating such exceptions as waived.

CONTRACT. Writ dated August 20, 1930. A special appearance by the defendant, a motion by it [281 Mass. 306] that the court decline jurisdiction of the action, proceedings with reference to the motion before Gray, J., in the Superior Court and findings and rulings by the judge are described in the opinion. The judge ordered the action dismissed. The plaintiff alleged exceptions and also appealed.

E.R. Anderson & R.B. Owen, for the plaintiff. J.W. Davis of New York, (N.W. Bingham, Jr., F.H. Chase, & W. Malcolm with him,) for the defendant.

RUGG, C.J. The plaintiff is a Massachusetts corporation. The defendant is an English bank whose principal place of business is London, England, and which carries on business solely in England and Wales. The action is in contract and was begun by trustee writ. The declaration sets out in several counts two causes of action, based on an alleged right to recover large sums of money on deposit in the defendant bank. The plaintiff asserts title to these deposits made in the defendant bank by the Moscow Merchants Bank. It claims title under assignments from two nonresident alien corporations - the Moscow Merchants Bank, a banking corporation organized under the Empire of Russia, and Mokuba, Limited, a corporation organized under the laws of the Republic of Switzerland - both assignments being in a single instrument and executed in the name of each corporation by the same individual. Service of process was made on three Boston banks named as trustees, whose answers disclosed credits due to the defendant. No service was made on the defendant, but an order of notice was issued to it as an absent nonresident defendant. The defendant thereafter appeared specially, without submitting generally to the jurisdiction of the court and solely for the purpose of protecting its interest in the goods, effects and credits in the hands of the trustees attached on the writ. The defendant filed a motion requesting the court to decline jurisdiction and to discharge the attachment, setting out numerous reasons. The motion was supported by affidavit. Summarily stated, those reasons are that the plaintiff claims as assignee of the deposits in the defendant bank, that the deposits were made before the Great War with the defendant in London by a Russian corporation; [281 Mass. 307] that the rights of the original depositor and obligations of the defendant depend upon the law of Russia, and upon the law of England where the deposits were made and are payable, and that the validity of the assignments to the plaintiff depends in part upon the law of Russia as an empire and under its present government; and that the inconvenience of trial of these and other issues in this Commonwealth would impose an undue burden on the defendant and on the courts of this Commonwealth.

When the motion came on for hearing, the plaintiff objected to the introduction of any oral evidence, basing its objection on Common Law Rule 23 of the Superior Court (1923) to the effect that the "court will...

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3 cases
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    • United States
    • United States State Supreme Judicial Court of Massachusetts
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