RITCHIE V. MCMULLEN, 159 U. S. 235 (1895)

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U.S. Supreme Court

Ritchie v. McMullen, 159 U.S. 235 (1895)

Ritchie v. McMullen

No. 15

Argued November 10, 14, 1893

Decided June 3, 1895

159 U.S. 235



n an action upon a foreign judgment, an answer admitting that "certain attorneys entered, or undertook to enter, the appearance of the defendant" in the action in the foreign court, and alleging that the judgment was entered without his knowledge, in his absence, and without any hearing, but not alleging that the attorneys were not authorized to enter his appearance in that action, or that he appeared and answered under compulsion or for any other purpose than to contest his personal liability, is insufficient to show that the foreign court had no jurisdiction of his person.

Averments in an answer to an action upon a foreign judgment that it was "an irregular and void judgment" and "without any jurisdiction or authority on the part of the court to enter such a judgment upon the facts and upon the pleadings" are mere averments of legal conclusions, and are insufficient to impeach the judgment without specifying the grounds upon which it is supposed to be irregular and void or without jurisdiction or authority.

To warrant the impeaching of a foreign judgment because procured by fraud, fraud must be distinctly alleged and charged.

A judgment rendered by a court having jurisdiction of the cause and of the parties, upon regular proceedings and due notice or appearance, and not procured by fraud, in a foreign country by the law of which, as in England and in Canada, a judgment of one of our own courts, under like circumstances, is held conclusive of the merits, is conclusive as between the parties in an action brought upon it in this country as to all matters pleaded and which might have been tried in the foreign court.

This was an action brought September 21, 1888, in the Circuit Court of the United States for the Northern District of Ohio by James B. McMullen, a citizen of the State of Illinois, and George W. McMullen, a citizen of the Province of Ontario, in the Dominion of Canada, against Samuel J. Ritchie, a citizen of the State of Ohio, upon a judgment for the

Page 159 U. S. 236

sum of $238,000 recovered by the plaintiffs against the defendant on February 26, 1888, in the Queen's Bench Division of the High Court of Justice for the Province of Ontario.

The petition alleged that by a contract in writing, dated January 13, 1886, the plaintiffs, being the owners of 210 first-mortgage bonds of the Central Ontario Railway, a corporation of the Province of Ontario, for $1,000 each, and of certain coupons thereof, amounting to the sum of $71,250, agreed to sell, and the defendant agreed to purchase, those bonds and coupons for the price of $210,000 of the fully paid-up stock of the Canadian Copper Company, a corporation of the State of Ohio; that on the same day, in part performance of the contract, the defendant accepted five bills of exchange for $5,000 each, drawn by one of the plaintiffs, payable to the other plaintiff's order at the Bank of Montreal at Picton, in the Province of Ontario, on July 1, 1886, with an endorsement thereon that the five bonds of the Central Ontario Railway attached to the bills were to be delivered to the defendant upon his paying the acceptances, and it was agreed that the payment by the defendant of those bills should be considered as payment of a like sum upon the contract, and the delivery by the plaintiff of the bonds attached to the bills should be considered as a delivery of so many bonds under the contract.

The petition further alleged that before October 8, 1887, all things necessary to entitle the plaintiffs to the performance of the contract had happened, and the plaintiffs were ready to perform it on their part, and the defendant neglected an refused to perform it on his part, and that on that day the plaintiffs commenced an action in the Queen's Bench Division of the High Court of Justice for Ontario,

"a duly and lawfully constituted court of record, having jurisdiction over all civil and criminal matters in and for that part of the Dominion of Canada called the 'Province of Ontario,' and caused a writ of summons to be personally served upon the defendant on November 8, 1887, and that on November 28, 1887, the defendant 'duly entered his appearance in said action in said court;' that that action was brought upon the contract aforesaid, and that the plaintiffs, in their statement of claim,

Page 159 U. S. 237

'duly delivered to said defendant or his duly constituted solicitors and attorneys, in accordance with the laws of said Province of Ontario,' prayed for specific performance of the contract, or for damages for the breach thereof."

The petition further alleged that in that action, on November 28, 1887, the defendant, in accordance with those laws, delivered to the plaintiffs his answer denying the allegations of the plaintiffs' claim and averring that, before the making of the contract aforesaid, the plaintiffs jointly and the defendant were each the owners of a large number of the bonds of the Central Ontario Railway, and agreed, in order the better to effect a sale of all the bonds, that the plaintiffs' bonds should be assigned to the defendant in order to enable him to deal with them as the apparent owner, accounting to the plaintiffs for their share of the proceeds; that the contract aforesaid was executed in order to carry out that understanding, and that, if it purported to be an absolute sale to him of the plaintiffs' bonds for a certain sum to be paid by him, did not faithfully express the agreement between the parties, and should be reformed; that it was no part of the agreement that he should pay the plaintiffs any money in respect of the assignment until he had sold the bonds and received the proceeds; that the defendant's acceptances were given solely for the plaintiffs' accommodation, and that the defendant had not sold any of the bonds, although he had used his best endeavors to do so.

The petition further alleged that on December 18, 1887, issue was joined upon that answer; that on February 29, 1888, that action came on for trial in said court and judgment was rendered that the plaintiffs recover of the defendant the sum of $238,000 and costs; that the judgment was unreversed and unsatisfied, in whole or in part, and that, by reason of the premises, the defendant became indebted to the plaintiffs in that sum, with interest, and, although payment had been demanded, had not paid the same or any part thereof.

To this action on the judgment, the defendant filed an answer, containing the following statements:

The defendant "admits that on January 13, 1886, he entered

Page 159 U. S. 238

into a contract in writing with the plaintiffs," a copy of which was made part of the answer, showing that it was a contract of sale and purchase, as alleged in the petition, and that the bonds and coupons were to be delivered, and the price paid at the Bank of Montreal at Picton.

"And he denies that he entered into any other contract in writing with them upon any subject or touching any matter in contention in this action."

"He admits that an action was commenced against him in the Province of Ontario, Canada, for the general purpose stated in the petition, and that service of a summons was in form made upon him in Summit County, Ohio, and that certain attorneys entered, or undertook to enter, the appearance or this defendant in said action."

"He admits that a formal, but an irregular and void, judgment was entered up against him in said court on or about the 29th day of February, 1888, which judgment was entered without his knowledge, and in his absence, and without any hearing whatever."

"And this defendant denies each and every other fact, statement, and allegation in said petition."

"And for a further defense, this defendant alleges that the said contract entered into between the parties was entered into for the purposes stated in his answer in said original action in the Province of Ontario, and for no other purpose; that the contract was altogether an accommodation contract, made between the parties with the full understanding and agreement that it was never to be performed between them; that it was made for the accommodation and convenience of the plaintiffs, to enable them to make use of the bonds described in the petition, and to aid them in the raising of money thereon."

"And this defendant further alleges that the said plaintiffs did not at the time stated in the petition, nor at any other time, ever undertake to or in fact perform said contract upon their part, or any part thereof. They never at any time demanded performance upon the part of this defendant of said contract, unless the bringing of said action was a demand of such performance. They never at any time tendered the bonds

Page 159 U. S. 239

or coupons in the contract and in the petition mentioned to this defendant, and they never delivered any of the said bonds to this defendant, nor did they ever make delivery nor attempt to make delivery of said bonds in accordance with the terms of said written contract, the said plaintiffs well knowing at all times what the real purpose of said contract was, and that the same was not to be performed upon the part either of the plaintiffs or of this defendant."

"This defendant says that he was not present at the time that said pretended judgment was rendered, but he states the fact to be that there were no facts existing or presented to the court which justified such judgment; that no bonds nor coupons were brought into court for delivery to this defendant, nor are any bonds or coupons upon deposit in the office of the clerk of said court, or in any other depositary, to be delivered to the defendant upon the performance of said contract upon his part; nor is it in the power of the said plaintiffs, or either of them, to make such delivery."

The defendant further alleges that if he were compelled to pay the judgment, he would be compelled to pay it without any consideration whatever; that by the wrongful act of the plaintiffs he was compelled to pay three bills of exchange of $5,000 each, which the plaintiffs had delivered to bona fide purchasers; that he never received but ten of the bonds; that the conditions of the contract were dependent conditions, and that the plaintiffs had not performed their part of the contract.

The defendant also "denies that any hearing occurred before said court," and

"denies that there was any showing made by the plaintiffs of their readiness or their ability to perform their contract, but says that said judgment was irregular, and without evidence, without performance upon the part of the plaintiffs, entered up against him in his absence, without his knowledge, and without any jurisdiction or authority on the part of the court to enter such a judgment upon the facts and upon the pleadings in said action."

The plaintiffs demurred to the answer, "because the same does not state facts sufficient to constitute a defense." The

Page 159 U. S. 240

circuit court sustained the demurrer and rendered judgment for the plaintiffs for the sum sued for, with interest and costs. 41 F.5d 2. The defendant used out this writ of error.

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