et al.·",·. RICHIE.
(Circu4t Court, N. D.. OhW,1i].D. February 17,1890)
'of a :Court of competent !urisdtction of a foreign country, in a suit between .the.same parties and in which· defendant appeared by counsel, will be held conclusive, in the absence of fraud; and it.is immaterial that the judgment was rendered in defendant's absence, and. without his knowledge, he not denying the authority of the attorney to enter his appearance.
At S. E. WiUiq,msO'll, for plaintiffs. Stevenson.Burke and J. E. Ingersoll, for defendant. Before JACKSON and RICKS, J J.
RICKS, J. The plaintift's instituted this suit to recover from the defendant the sum of $238,000, with interest, which he alleges the defead-ant is legally obligated to pay because of a judgment for that sum rendered in plaintiff's favor in the queen's bench division of the high court ofjustice for Ontario. The amended petition sets forth the provisions of the original contract upon which the judgment was based, and avers that said action was .brought upon said agreement;· that plaintiffs prayed that 8aid agreement might be specifically performed, or that they might have damages for the bre-.a.ch thereof; th8ta proper answer was filed by forth fully, his defense to said suit; and that upon a trial judgment was rendered in favor of plaintiffs for said sum. The defendant in his answer avers that the contract sued upon in Canada was an accommodation contract, with the full understanding that the same . was never to be performed, and that, if the de/tmdant was compelled to pay said judgment. he would' be eompelled to pay the same without any consideration, and seeks to have the issues. set forth in his answer in the Canada case presented and tried in this suit. The answer does not deny the authority of the attorney to enter his appearance in the Canada suit, he .filed an answer in' case setting up the Sllme nordoes he deny defe-nse now sought to be made in this court. Hltving by his appear· ance and answer. submitted thejurisdictioll of the Canada court, and hl;lving presented matters ofdefenseJwplch that court must have passed upon in rendering the in the amended petition, the question now to be determined is,>ciiil he be permitted in this court to retry the same matters of defel111el'resented in the Canada suit? It is: not matelial that ,the judgmentin said case was rendered in defimdant's absence, and without hjs he avers in his answer here,1;)ec.ause that court had full juriSdiction of thesubject.matter, and of thedefandant, through his entry by his counsel. . Every intend.' q1erit, is in favor ofthe regularity of its proceedings and of the validity of its judgment, aft it'is,Jtiot,nowattempted to impeach it for (raud. The case, therefore. fairly' ,pWSents Jor consideration the force and effect to be given by this court to a judgment rendered by a foreign
M MULLEN '11. ItICI'IIE.
''Court in a suit betweentBesame parties; the jurisdictiori of tlie subjectmatter and of the person having heen properly acquired" and the proceedings being unassailed for fraud. rCounsel for defendant have cited the cases of B'Ulf'nham v. Webster, 1 Woodb;'&'M; 172j Buttrick v. Allen, 8 Mas6.273; Bank v.Har:diny,.67 Eo O.L1686j Lyman v. Brown; 20urt.559; Wood v. Gamble, 11 Cush. S; and. Israel, 1:20 U. 8.506, 7 Sup. Ot'. Rep. 648.. In the ,first cited the doctrine is recognized that the foreign judgment is only prima facie evidence as between the it; and Mr.J:us,tiqe WOODBURY. in that case,granted a new trial because the trial judge had refused to testin'io,ny to go to the jury impeaching the judgment formistak'e anpirregularity, :alth6ugh the foreign court in which it was rendered' had 'ftlll jurisdictioh of the suhject-matter and parties. 'The learned judge 'in that case' s a i d : ' ' 1'1 would allow tlle opposing party, where a foreign judgment issU'ed, pleaded, 'In' evidence, to rebut/its prima facie force and obligation by showing,: that 'the, merits' of the claim, now in controversy, were not, in truth, at all there cQnsidered, and adjudged; and I would do that,. whether it 900urredbynccident or· mistake, or any agreement of :t\1e parties, or any qtller as well as it. W;ose from the want of personal excusllble Other' courts; 1:n (',ases arising, abOut that same period,-nearly halfa eenturyagb:;:"":':heldthe same doctrine. But ll1te:r decisions, in Cij,Ses more carefully<ldnsidered and betterreasoned, give greater force and dignityto the re<Jorus of foreign courts, not only asa matter of comity, but for the better reason that when parties have once had their day in a court of com jurisdiction,'after due' service of proce$$or after entry ofgp. peatance, ahdhave had a full and impartial hearing upon the merits of their case as made in' the pleadings, they should be bound by the judgment of that tribunal, unless they can show its prooeedings were tainted With fra.ud; ··Counsel for plaintiff has cited the following authorities, which fully sustain the doctrinejtist stated: Bank v. Nias,71 E. O. L. 717j GiJdardv.'Gray, L. R. 6 Q. B.' 139j BeaU v. Pilkington, 2 Best & S. 11; v; Westcott, 26 N. Y. 146; Baker v. Palmer, 83 'Ill. 568. In the<-ase of GOdard v. Gray, decided in 1870'in the court of queen's bench, 'the prior decisions in England are reviewed, and the leinned the law was thenwell settled in the English courts judge that the jUdgment ofa foreign trihunal, having jurisdiction over the party andthecauae, cannot be impeached on the ground that it was erroneous on t'hemerits, or that to 'an action on such judgment the judgment debtoreould not defend that the tribunal mistook either the law or the facts :The court of appeals of the state of New York, in the case above after a tbl>rough review of the decisions of the courts in Englan'darid America, approves the reasoning of Chancellor KEN'!' and Justiee"S'toRY'; lind' says that· tMsame principles ntl'd decismns made as to judgments from the courts of other states of the 'Union should be applied to foreign judgments. The court, after quoting freely from Justice STJRY in favor of the absolute conclusiveness of 'fhe 'foreign jUdgments, except in cases in which the court which pronounced the judgment had
not duejurisdiction of the,case and of the defendant, or the. proceeding was in fraud or founded in palpable mistake or irregularity, or bad by the law of rei judicala3, approves his views as eminently correct, and most in hartriqny with sound principles and the best-considered cases. The court inAhe,same opinion quotes from Justice STORY, and says: "Holding that tbejudgment was only to be regarded as prima facie evidence tor,the plaintiff, he says, would be a meredelusion, if the destill question itb;y opening all or any of the original merits on his side; for under such circumstances it would be equivalent to granting a neW trial," ,If the action of the court of original jurisdiction, having the parties and the Bubject-matl.er properly before it, is to:1>e reviewed, and itsjudgmentto be treated as opJyprirna facie evidence for the judgment creditor, in what class of cases is the court of second or third resort to go behind ·the. original judgment,andretry the case on its Is it to do so ·where, in its opinion, the court of original jurisdiction Wlj,s not one of equal learning or ofequal rank, or where the judgment debtor, through want of diligence, or because of the lack of zeal or ability of his counsel, did not secure as full and intelligent an examination of his. defense ll:s he should have had? If the original judgment is to be reviewed for any reasons other tijan for fraud ()rwant of jurisdictioIl, where is the boundary line ofilie reviewing'court to be fixed? Mr. Justice WOODBURY, in ·his opinion in the case cited by opens the door as ,wide as possible, and authorizes the court to explore the whole field coveredby the issues made in the original suit, and to review jts proceedings upon all or anyone of the issues there made and not fully consid.ered, whether .by accident or mistake, or for any excusable cause. I cannot approve such doctrine. It would destroy the force and effect of · judicial proceedings, and make the judgments of.a foreign tribunal, nO matter how high its rankor how binding its decisions within its own jurisdiction,of li.ttle greater effect than the original, contract or promise sued 'upon. I think the doctrine, as maintained by the later English and American cases, to which reference. has been made, has advapced the courts stage in the progress of simplifyingt4e administration of justice. It is important that there should be a to litigation, "and that pal'ties, as to matters.upon which they had a full hearing in the . court of orig;inaland compatentjurisdiction, should not.be permitted to open and retry issues once fairly determined, whenever and wherever they have an op,portunity to do so, by defending against judgments ren,dered in a foreign country to which they were properly made parties. I .am therefore of the opinion that the judgment se.t.out in the amen.ded petition. in this Q8se has the same force and effect as a. judgment of a. :court ofcoD1petent jurisdiction in one of the sw.t,es,ofthis Union,and is . conclusive.agti.inst the defendant of the matters therein adjudged. The demurrer to the answer will therefore be allowed.
J. J concurs.
mils ,. GRONLUND.
v. GRONLUND et ale
(Circuit Court, S. D. New York. February 10,1890.)
NBW TRUL-REMITTITUR-SEPA1U.TE AMOUNTS AGA.INST JOINT DEFENDANTS.
In an action for joint tort, where the court grants defendants' motion for I\ew trial unless the plaintiff remits a portion of the verdict, the plaintiff cannot have the requirement modified to a remittitur of different sums, according to the proofs against each of the dofendants, and for separate judgments thereon. .
At Law. On motion to modify remittitur. set aside verdict, see ante, 145. Walter M. Rosebault,. for plaintiff. Henry M. Gescheidt, for defendants.
For opinion on motion to
WHEELER, J. Upon the filing of the decision herein granting the defendante'motion for a new trial unless the plaintiff remits to $1,064.32, for roosons stated, the plaintiff moved to have the requirement modified to a remittitur of different snms, according to the proofs against each of the defendants, and for separate judgments thereon, and for lessening the amount of the remittitur so as to allow the verdict to stand for damages for the loss of sales by the plaintiff by reason oithe 1,500 copies sent to Sweden. Lovejoy v. Murray, 3 Wall. 1; Insurance 00. v. Boykin, 12 Wall. 433; Chaffee v. U. S., 18 Wall. 516; Sau'in v. Kenny, 93 U. S. 289; and Sessions v. Johnson, 95 U. S. 347,-are cited in support of the proposition for separate judgments for different amounts. None of these cases is understood to go further than to hold that in actions against several defendants, founded on torts, the verdict may be for some defendants, and against others, according to the evidence. In In8urance Co. v. Boykin, separate judgments, for several different amounts, were rendered; but that was done upon an express stipulation of the parties, and Mr. Justice STRONG appears to have dissented to that. That but one judgment against the defendants in an action at law for a joint tort, and for such damages only as both or all are liable for, can be rendered, seems to be very plain. Any separate liability of one must be sued for separately, or judgment be taken against that one alone. If the plaintiff should file a remittitur of one sum as to one defendant, and of another as to the other, the verdict would be left standing against both for joint damages to the smallest amount left by the remittitur, and against one for the difference between the two amounts. On that, judgment for the smallest amount only could properly be rendered against both. The printing of the 1,500 copies sent to Sweden was, as stated, an unlawful invasion of the plaintiff's copyright. For this the plaintiff was entitled to recover nominal damages, and such further actual damages as he should show resulted; and for it he is entitled to have the verdict stand to such an amount as such damages were shown by adequate proof, and found by the jury. Those sent there would not displace the plaintiff's sales here before they were sent. Those kept by the defendant tl,lllre wouldQot djsplace pll\ointiff's sales anywhere. Those. sold by