Alaska Commercial Co. v. Debney , 2 Alaska 303 ( 1904 )

WICKERSHAM, District Judge.

The court will consider the main question in this case upon the defendant’s objection to filing the amended complaint. This question is: Can the plaintiff named in the Canadian judgment bring suit in this court upon its original causes of action, upon which the foreign judgment was based, and also upon the foreign judgment itself as a separate cause of action; or were the original causes of action merged in the Canadian judgment, so as to prevent their resurrection and use as original causes of action in the courts of this territory? A further objection is made to the proposed amendment, that it is an attempt to substitute a new and different cause of action on the account and note for the original cause on the foreign judgment upon which the attachment proceedings are based.

There is neither statutory enactment,- constitutional requirement, nor treaty stipulation with England imposing jurisdiction upon the District Court of Alaska to enforce the decrees or judgments of Canadian courts. Whatever aid the courts of this territory render in enforcing such judgments must be guided and controlled by those rules of international comity and reciprocity which are recognized and announced as binding upon the United States by our national courts of highest resort. The guiding principles have been recently examined and carefully stated by the Supreme Court of the United. States in two cases: Hilton v. Guyot, 159 U. S. 113, 16 Sup. Ct. 139, 40 L. Ed. 95, and Ritchie v. McMullen, 159 U. S. 235, 16 Sup. Ct. 171, 40 L. Ed. 133, and this court must apply them in this case as nearly as its understanding will permit. In the first of these controlling cases the court declares that, in the absence of a treaty, statute, or other written law—

“The duty still rests upon tlie judicial tribunals of ascertaining and declaring what the law is, whenever it becomes necessary to do so, in order to determine the rights of parties to suits regularly brought before them. In doing this the courts must obtain such aid as they can from judicial decisions, from the works of jurists and commentators, and from the acts and usages of civilized nations.” Hilton v. Guyot, 159 U. S. 113, 163, 16 Sup. Ct. 139, 143, 40 L. Ed. 95.

The force and effect to be given to a foreign judgment when sued on in the courts of the United States is to be determined by what the Supreme Court terms “the comity of nations.”

“ ‘Comity,’ in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of any other persons who are under the protection of its laws.” Hilton v. Guyot, 159 U. S. 163, 16 Sup. Ct. 143 (40 L. Ed. 95).

After defining the limits of the jurisdiction of courts of the United States under the law of “the comity of nations,” the Supreme Court in these cases carefully examined the authorities under which foreign judgments may be enforced therein, and concluded:

“In view of all the authorities upon the subject, and of the trend of judicial opinion in this country and in England, following the lead of Kent and Story, we are satisfied that, where there has been an opportunity for a full and fair trial abroad before a court of cbm • petent jurisdiction, conducting the trial upon regular proceedings, after due citation or voluntary appearance of the defendant, and under a system of jurisprudence likely to secure an impartial administration of justice between the citizens of its own country and those of other countries, and there is nothing to show either prejudice in the court or in the system of laws under which it is sitting, or fraud in procuring the judgment, or any special reason why the comity of this nation should not allow its full effect, the merits of the case should not, in an action brought in this country upon the judgment, be tried afresh, as on a new trial or an appeal, upon the mere assertion of the part that the judgment was erroneous in law or in fact. The defendants, therefore, cannot be permitted upon that general ground to contest the validity or the effect of the judgment sued on.” Hilton v. Guyot, 159 U. S. 202, 16 Sup. Ct. 158 (40 L. Ed. 95).

“When an action is brought in a court of this country, by a citizen of a foreign country against one of our own citizens, to recover a sum of money adjudged by a court of that, country to be due from the defendant to the plaintiff, and the foreign judgment appears to have been rendered by a competent court,.having jurisdiction of the cause and of the parties, and upon due allegations and proofs and opportunity to defend against them, and' its proceedings are according to the course of a civilized jurisprudence, and are stated in a clear and formal record, the judgment is prima facie evidence, at least, of the truth of the matter adjudged, and it should be held conclusive upon the merits tried in the foreign court, unless some special ground is shown for impeaching the judgment, as by showing that it was affected by fraud or prejudice, or that, by the principles of international law and by the comity of our own country, it should not be given full credit and effect.” Hilton v. Guyot, 159 U. S. 205, 16 Sup. Ct. 159 (40 L. Ed. 95).

In the case of Hilton v. Guyot, however, the court refused to hold the French judgment sued on to be conclusive, but held it “prima facie evidence only of the justice of the plaintiff's claim," for want of reciprocal recognition of the higher rules of comity in the French courts, in which American judgments are given only prima facie value as evidence.

The case of Ritchie v. McMullen, 159 U. S. 235, 16 Sup. Ct. 171, 40 L. Ed. 133, was under consideration at the same time, and was decided with that of Hilton v. Guyot. This was a suit to enforce a Canadian judgement, and the court in the two cases points out the difference in the rule which prevails in the courts of the United States between French and English judgments. In the last case the court said:

“By the law of England, prevailing in Canada, a judgment rendered by an American court under like circumstances would be allowed full and conclusive effect. Scott v. Pilkington, 2 B. & S. 11; Abouloff v. Oppenheimer, 10 Q. B. D. 295, 307; Vadala v. Lowes, 25 Q. B. D. 310; Nouvion v. Freeman, 15 App. Cas. 1, 10; Fowler v. Vail, 27 Upper Canada, C. P. 417, and 4 Ontario App. Cas. 267.”

And the court concludes that:

“Upon principle, therefore, as well as upon authority, comity requires that the judgment sued on should be held conclusive of the matter adjudged.” Ritchie v. McMullen, 159 U. S. 242, 243, 16 Sup. Ct. 174 (40 L. Ed. 133).

The character and value of English judgments in the courts of the United States was finally determined by these cases. They had long been held to be prima facie evidence only, but now they were given an equal effect with domestic judgments, and held to be conclusive of the matters adjudged, subject only to direct attack for want of jurisdiction, fraud, or mistake. And such was the previous rule in New York, Maine, and Illinois (Lazier v. Westcott, 26 N. Y. 146, 150, 82 Am. Dec. 404; Dunstan v. Higgins, 138 N. Y. 70, 74, 33 N. E. 729, 20 L. R. A. 668, 34 Am. St. Rep. 431; Rankin v. Goddard, 54 Me. 28, 89 Am. Dec. 718; Id., 55 Me. 389; Baker v. Palmer, 83 Ill. 568); and such is the trend of modern decisions both in the United States and England.

Black on Judgments states the final rule as follows:

“Notwithstanding the fluctuations of opinions manifested in the earlier cases which we have cited, the English courts have finally determined upon the conclusiveness of foreign judgments in personam, and it must now be regarded as irrevocably settled as a rule of English law that such judgments, when rendered by a court having jurisdiction of the subject-matter and the parties, and without fraud, and while still remaining in full force abroad, are binding and conclusive in the English courts, in all eases, and not open to impeachment or re-examination on the merits.” Black on Judgments (2d Ed.) vol. 2, § 827.

And upon the final rule in American courts this same author concludes:

“From this review of the decisions it will have become apparent that, notwithstanding an occasional adverse dictum, and perhaps one or two positive rulings, the general tendency of the more recent American cases' has been steadily and uniformly towards the position finally reached by the English courts.” Black on Judgments (2d Ed.) vol. 2, § 829.

Upon the principles announced by the majority of the judges, as well as upon those contended for by the minority, in the cases of Hilton v. Guyot and Ritchie v. McMullen, supra, and upon the now settled doctrine in both the United States and England, a Canadian judgment will be given full faith and credit as a cause of action, and treated as conclusive evidence of the matters adjudged therein, when sued upon in the courts of this territory; subject, of course, to a defense for the want of jurisdiction, mistake, or fraud.

It appears from the pleadings in this court that plaintiff and defendant were both domiciled in and residents of the Yukon Territory and engaged in business there at the time the liability on the account and note declared on in the Canadian judgment was contracted, and that personal service of the summons and claim sued on in that case was made there on the defendant. It will not be contended that these original causes of action were not merged in the Canadian judgment, if the question were raised in the Canadian courts. The plaintiff could not relitigate its original causes of action in the courts of the Yukon Territory for that reason. Why permit it here? What rule 'of “the comity of nations” authorizes the resurrection of the dead issues of that case and their trial anew in this court? If the foreign judgment is conclusive upon the merits against the defendant, why is it not equally so against the plaintiff? Is it conclusive if it may be reopened and relitigated at the suit of either party?

Under the recent American and English decisions, the judgments of either nation are held to he of a higher nature in the courts of the other than the original cause of action. The old rule was that such a judgment was prima facie evidence, only, of the adjudication, but now it is conclusive upon the merits. The logical result of the new rule is that an inquiry into the merits is barred to both plaintiff and defendant; else nothing is gained by the new rule of conclusiveness. Under the old rule, the courts held that the original causes of action were not merged in the judgment, because it was of no higher nature as evidence than they; but the rule in both the American and English 'courts now seems to be the other way.

Herman, in his work on Estoppel and Res Judicata, lays down the rule that:

“Whenever a court has jurisdiction of the subject-matter and of the parties, it is a settled rule of law that it may proceed to adjudge the matters in controversy between the parties, and render .a judgment, which, until reversed by an appellate court, is conclusive upon the parties and their privies. There is also another rule ■of law that is unquestioned — that a judgment merges the cause of action, and that no action can thereafter be brought upon the same -cause, but it must be upon the judgment. Under these rules, there can be no reason why a judgment between the parties by a court of competent jurisdiction, rendered in a foreign country, should not have the same force and effect. There is every reason why such a judgment should be received as conclusive evidence. It therefore may be stated that the rule upon principle is that a foreign judgment, if the court had jurisdiction of the subject-matter, and the parties were regularly brought before it, is conclusive, and merges the original cause of action.” Herman on Estoppel and Res Judicata, vol. 1, § 49S, citing both the American and English authorities.

It must be admitted that the decisions seem to be as far from -uniformity on the question of the merger of the original cause as they formerly were on the force and effect of the judgment itself. The old decisions, holding that the judgment is only prima facie evidence and of no higher character than the original cause of action, also hold that there is no merger; and counsel for plaintiff have cited these to the court in support of their contention, and also insist that Hilton v. Guyot is to the same effect. Beginning on page 199 of 159 U. S., page 157 of 16 Sup. Ct. (40 L. Ed. 95), the Supreme Court restated the old rule, but without adopting it, and the statement that the foreign judgment did not merge the cause of action was merely quoted, not adopted, in that case.

The Constitution of the United States provides that:

“Full faith and. credit shall be given in each state to the public ■acts, records, and judicial proceedings of every other state. And the Congress may by general law prescribe the manner in which such .acts, records, and proceedings shall be proved and the effect thereof.” Article 4, § 1.

Congress seems to have attempted to give form to the rule ■of “the comity of nations” as defined by the Supreme Court of the United States in Hilton v. Guyot, supra, when, in response to this constitutional requirement, it passed the act of 1790, prescribing how such records should be proved, as follows :

“And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the state from which they are taken.” Act May 26, 1790, c. 11, 1 Stat. 122; Rev. St. § 905, U. S. Comp. St. 1901, p. 677.

The construction of this constitutional and statutory rulé, declaring the effect of the judgment of one state in the courts of another, gave rise to doubts in the minds Of the judges very similar to those which have so long prevailed in relation to foreign judgments. The early decisions held that such state judgments were only prima facie evidence of the matters adjudged. Black on Judgments (2d Ed.) vol. 2, § 855. But in 1813 the Supreme Court of the United States, in the case of Mills v. Duryee, laid down the true rule. The court said in that case:

“Were the construction contended for by the plaintiff in error to prevail, that judgments of the state courts ought to be considered prima facie evidence only, this clause in the Constitution would be utterly unimportant and illusory. The common law would give such judgments precisely the same effect. It is manifest, however, that the Constitution contemplated a power in Congress to give a conclusive effect to such judgments, and we can perceive no rational interpretation of the act of Congress, unless it declare a judgment conclusive when a court of a particular state where it is rendered would pronounce the same decision.” Mills v. Duryee, 7 Cranch (U. S.) 481, 3 L. Ed. 411.

And Black on Judgments concludes on this question by saying:

“The leading case is authority for the proposition that a judgment of a sister state is conclusive on the merits; that, for purposes of pleading and evidence, it is entitled to the full dignity of a record; and that defendant is not at liberty, when sued on the judgment, to deny the indebtedness which it ascertains and establishes, or to impeach its justice or deny its obligations. But beyond that the decision does not go. Jurisdictional inquiries are still permissible. It is now held by all the state courts, following the lead of the federal decisions, that a judgment rendered by a court of competent authority, having jurisdiction of the parties and subject-matter, in one state, is conclusive on the merits in the courts of every other state, when made the basis of an action, and in such action the merits cannot be inquired into.” Black on Judgments (2d Ed.) vol. 2, §§ 856, 857.

And that is exactly what I understand the Supreme Court of the United States to have decided, in relation to the value and effect of Canadian judgments in the courts of the United States, in the cases of Hilton v. Guyot and Ritchie v. McMullen, supra. The logical conclusion of that rule is that the original cause of action is merged in the judgment.

Black lays down this rule in relation to merger in judgments rendered in the states of this Union:

“As between the several states of the American. Union [contrary to the rule in regard to judgments from foreign countries], it is well settled that the recovery of a judgment in one state, in a court having jurisdiction, merges the original cause of action, so that it cannot hereafter form the basis of a fresh suit in another state.” Black on Judgments, supra, § 864.

Black and Herman squarely disagree on the rule in relation to the merger of the cause of action in the foreign judgment, and neither is'right without noting the exception made in the principal cases. There are two rules, not one. Canadian judgments are conclusive under one rule, and French judgments are only prima facie evidence under the other. The cause of action is merged in the Canadian judgment; it is not merged in the French judgment.

It is my opinion, then, that the original cause of action cannot be joined in a suit in this court to enforce a valid Canadian judgment as a separate cause of action; that such original cause of action is merged in the Canadian judgment; that such judgment is conclusive upon the merits, but subject to direct attack for jurisdictional defects, mistake, or fraud. For these reasons, the proposed amendment is denied.