Northern Aluminum Co. v. Law

Adkins, J., delivered the opinion of the Court. The appellant sued the appellee in the Court of Common Pleas of Baltimore City on a judgment obtained in the ⁶⁴³ Province of Ontario', Canada. The declaration alleged that the defendant, at the time of the institution of the suit in Ontario, was domiciled and ordinarily resident in the Province of Ontario and within the jurisdiction of the Supreme Court of Ontario, that the said defendant, having temporarily absented himself from the jurisdiction of the said Supreme Court of Ontario to' reside temporarily in the City of Baltimore, in the State of Maryland, there was issued by the Supreme Court of Ontario an order for the issuance of a concurrent writ of summons for service out of the jurisdiction of said court upon the said defendant; that the jurisdiction of said court to make said order is granted by rules of said court, passed pursuant to the provisions of the Ontario Judicature Act, Pule 25, pro^ viding that service out of Ontario of a writ of summons or notice of writ may be allowed whenever, among other things., (c) any relief is sought against any person domiciled or ordinarily resident within Ontario.; that the application for such writ was accompanied by the affidavit required by the mies of said court; that the said defendant was duly served with said writ of summons at the City of Baltimore in the State of Maryland, and, not having disputed his liability, judgment was entered against him by said court on tbe 27th day of March, 1924, in the sum of $1,216.32; that the Supreme Court of the Province of Ontario is a court of record. An exemplified copy of the proceedings and of the judgment was filed with the declaration.

Defendant demurred to the declaration because: 1. The said declaration was bad in substance and insufficient in law. 2. The Ontario Court had no jurisdiction over the person of the defendant, the declaration disclosing that the defendant, at the time of the institution of tho suit, and at the time of the service of process upon him, was a resident of the City of Baltimore, and that said process was served upon him only in said city and not within the territorial jurisdiction of the Province of Ontario. This appeal is from a judgment following an order sustaining the demurrer. ⁶⁴⁴ The effect of the ruling appealed from was to' hold that, even if the defendant was a citizen of Ontario and a British subject, and ordinarily residing' in Ontario, and was only temporarily residing in the Oity of Baltimore, the Ontario court had no jurisdiction to summon him outside of its territorial limits in the manner provided by its laws.

Wo think the learned trial court was in error in so holding, and that the weight of authority is against that ruling, although it has some support, as for instance in Smith v. Grady, 68 Wis. 215 . Most of the authorities cited by appellee in support of his contention are cases where the defendants were not citizens of the foreign country or state, and in some of them the citizenship of defendants does not appear, as in Bischoff v. Wethered, 9 Wall. (76 U. S.), 714. In Pennoyer v. Neff, 95 U. S. 714 , a case much relied on by appellee, the court said: “Process sent to him (a defendant) out of the state, and process published within it are equally unavailing to establish his personal liability.” In that case, however, the defendant was not a citizen of the state where the original judgment was obtained.

And although there is language used in that case which has been interpreted by some courts as extending the principle to citizens who are merely absent (such as Raher v. Raher, 150 Iowa, 511 ), in most cases where it has been approved and followed, the defendants have been nonresidents, and not citizens of the country or state where the original judgment was obtained; and special note is taken of the fact that the defendants are nonresidents. In Freeman on Judgments (5th Ed.), sec. 1376, it is said in substance that the position which seems to be best sustained both by reason and by precedents is that each state has the authority to provide the means by which its own citizens may be brought before its courts, and that judgments obtained on such process are not open to question on that ground in other states. This principle is recognized, impliedly at least, in the following cases: Harryman v. Roberts, 52 Md. 64 ; McEwan v. Zimmer, 38 Mich. 765 ; ⁶⁴⁵ Shepard v. Wright, 113 N. Y. 582 ; Kerr v. Tagliavia, 168 N. Y. Supp. 697 ; Keenan, v. Keenan, 40 Nevada, 351; Ward v. Connecticut Pipe Mfg. Co., 71 Conn. 345 ; Cross v. Armstrong, 44 Ohio St. 627 ; Green v. Sarmiento, 1 Peters C. C. 74, Fed. Cas.

No. 5,760; Goldey v. Morning News, 156 U. S. 518 ; Hall v. Panning, 91 U. S. 160 ; Ritchie v. McMullen, 159 U. S. 235 ; Dull v. Blackman, 169 U. S. 243 ; New York life Ins. Co. v. Dnnlevy, 241 U. S. 518 ; McDonald v. Mabee, 243 U. S. 90 . In Harryman v. Roberts, supra, the judgment in question was obtained in Ohio against a citizen of Ohio, so the question of nonresidence did not arise. The objection was to the method of service of process in that state.

There was no personal service, but a written notice was left at defendant’s place of residence in accordance with the law of that state. In the opinion delivered