Nankivel v. . Omsk All Russian Government , 237 N.Y. 150 ( 1923 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The primary question is as to the validity of a judgment for $96,392.38 entered by default in Supreme Court, New York county, on May 9, 1922, against Omsk All Russian Government in an action brought to recover the value of certain automobiles requisitioned and seized by it within its territory during the months of December, 1918, and January, February and March, 1919. The summons and complaint were delivered on April 12, 1922, in New York, to Serge Ughet, said to be the managing agent of defendant.

Appellants resist an order for their examination in supplementary proceedings in aid of the execution issued on the judgment and a subpœna duces tecum accompanying it, on the ground that they rest on a void judgment, first, because the defendant, sued as a de facto government, was immune from suit, and, secondly, because at the time the judgment was entered it had ceased to exist as a government.

The complaint alleges: "Defendant, at all the times herein mentioned was and it now is a foreign corporation being a defacto government, which has never been recognized by the government of the United States as a lawfully constituted and existing government." It is a matter of common knowledge and the moving papers establish the fact that if the Omsk All Russian Government was at any time even a de facto government in the international sense, it was created as such with Admiral Kolchak at its head at Omsk in November, 1918, and recognized by General Seminoff and his forces at Vladivostok, and thereafter driven out of all regional control by the Bolshevik government, not later than March, 1920.

During its ephemeral and disastrous career, it asserted its authority over a portion of the inhabitants of the former Russian Empire who had, after the debacle, separated themselves from the central government and established an independent sovereign government over a limited territory in Siberian Russia. It was not a subordinate state nor a civil division of the Soviet Republic. It was either what plaintiffs choose to call it, a defacto government, and, therefore, sovereign in character, or it was a mere aggregation of robbers and murderers, outside the protection of the laws of war. When its leaders failed in their endeavors to establish themselves permanently; when the armed forces of the Soviet government defeated its armies, overran its territory, executed Kolchak and drove Seminoff into exile, its sovereignty ceased and the Omsk All Russian Government utterly perished. Whether alive or dead, no valid judgment could be obtained against it.

"At the time of the rendition of the judgment it had neither legal existence, capacity to be sued, nor any property against which a judgment could be enforced." (People v. KnickerbockerLife Ins. Co., 106 N.Y. 619, 623.)

So long as it maintained an independent existence, it was immune from suit for its governmental acts in our courts without its consent. Lack of recognition by the United States government, we have recently held, does not permit an individual suitor to bring a de facto government before the bar. (Wulfshon v. Russian S.F.S. Republic, 234 N.Y. 372.) To sue a sovereign state is to insult it in a manner which it may treat with silent contempt. It is not bound to come into our courts and plead its immunity. It is liable to suit only when its consent is duly given. (Porto Rico v. Rosaly, 227 U.S. 270.) When defendant was extinguished by conquest, it became, so far as its continued corporate existence is concerned, as if it had never existed. (Williams v. Bruffy, 96 U.S. 176, 185.)

Respondents now urge that it does not appear necessarily on the record that defendant was sued as a sovereign state or as anything more than a foreign corporation; that the words of the complaint, "de facto government, not recognized by the United States," were mere words of description and surplusage. They liken the Omsk government to an ordinary business corporation which has suspended its operations but has not been dissolved as private corporations are dissolved. But lack of recognition obviously was pleaded on the theory that immunity comes only with recognition and the analogy is fallacious. A state is not a trading corporation which may be dissolved by judicial process. States may cease to exist when they are conquered by the enemy. Ade facto government exists only as it governs. The fact that General Seminoff while in the Tombs prison in New York, under an order of arrest in 1922, was recognized by other exiles as commander in chief of the Russian eastern border region furnishes no evidence that a person or a foot of territory was then subject to the sovereign power of the Omsk government.

So when this action was begun on April 12, 1922, no Omsk All Russian Government in any corporate sense was in existence. If Ughet, the Russian attacheacute in the United States of the Kerensky government, to whom the summons and complaint were delivered, was ever its financial agent, his agency had ended when his principal became extinct.

Respondents contend that these objections may not be raised by third parties. We think the necessities of the case compel an opposite conclusion. As an existing government, defendant was not called upon to plead its immunity. The dead government could not plead its own demise in abatement of the action. It could not by default admit its own existence. The fact of such existence could not be litigated in the action. Acquiescence will not be inferred from the silence of the dead. The judgment was void. (Pendleton v. Russell, 144 U.S. 640, 644.) Appellants are affected by it and have a right to ask that its nullity be officially declared. (O'Donoghue v. Boies, 159 N.Y. 87.)

Ten questions are certified for our consideration. One only, the third, need be answered: "Does the record on appeal present facts, or have the courts judicial knowledge of facts, respecting the existence of the defendant Omsk All Russian Government, which show that prior to the commencement of the action in which the judgment herein was entered, said defendant had so totally ceased to exist as to render void the judgment entered against it in the action thereafter commenced?"

The orders should be reversed, with costs in all courts. Motion granted, with ten dollars costs. Third question certified answered in the affirmative. Other questions not answered.

HISCOCK, Ch. J., HOGAN, CARDOZO, McLAUGHLIN, CRANE and ANDREWS, JJ., concur.

Orders reversed, etc.