Opinion
33954.
DECIDED JUNE 25, 1952.
Suit on foreign judgment; from Morgan Superior Court — Judge Carpenter. December 4, 1951.
Rupert A. Brown, A. F. Jenkins, for plaintiff in error.
Noel P. Park, contra.
Where in a suit upon a foreign judgment, the judgment roll, which is attached to and made a part of the petition, shows upon its face that the court of the State rendering the judgment sued on was without jurisdiction, the petition is subject to demurrer as setting forth no cause of action.
DECIDED JUNE 25, 1952.
Jos. S. Cohen Sons Company Incorporated filed suit in the Superior Court of Morgan County against Harry Lurey, trading as Mack's Department Store, on a judgment rendered in the Supreme Court of the State of New York in favor of the plaintiff against the defendant. The material allegations of the petition were substantially as follows: On February 7, 1950, the plaintiff and the defendant entered into a written contract by the terms of which they agreed respectively to sell and purchase certain ladies' dresses. Thereafter, and pursuant to the contract, the plaintiff sold and delivered to the defendant certain ladies' dresses at the price set forth in the contract. Among the provisions of the contract were the following:
"4. This order, when accepted is not subject to cancellation by the buyer. In the event of any attempted cancellation or other default by the buyer, as the result of which a claim against the buyer is placed in the hands of an attorney, the buyer agrees to pay attorney's fees of 15% of the invoice price of all goods to which said claim relates:
"5. There are no oral understandings, representation or agreement relative to this contract that are not fully expressed herein, and this contract shall not be modified or amended, by confirmation of the buyer or otherwise, except in writing, signed by the seller, to whom any request for change or modification must be made in writing addressed to it at its principal office, No. 46 West 23rd Street, Borough of Manhattan, New York City. . .
"8. Any controversy arising under, or in relation to, this contract shall be settled by arbitration. Unless the parties otherwise agree, the time, place, method or rules of the arbitration shall be as follows: The arbitration shall be held in the City of New York in accordance with the laws of the State of New York and the rules of the American Arbitration Association, and the parties consent to the jurisdiction of the Supreme Court of the State of New York in respect to such arbitration, and further consent that any process or notice of motion or other application to the court or a judge thereof may be served outside the State of New York by registered mail or by personal service, provided a reasonable time for appearance is allowed."
The defendant failed to pay for the merchandise mentioned, although it was duly delivered to him in accordance with the terms of the contract. Thereafter the plaintiff served the defendant with a demand for arbitration pursuant to the terms of the contract. An arbitration was duly had in accordance therewith, and an award was made therein in favor of the plaintiff, by the terms of which the defendant was required to pay the plaintiff $246 for the price of the merchandise sold and delivered and the additional sum of $36.90 as attorney's fees. The plaintiff then filed an application to the Supreme Court of the State of New York to confirm the award, and prayed therein that judgment be entered thereon, and on September 8, 1950, it having been made to appear that due notices had been given the defendant, the Supreme Court of New York ordered that the award made in the arbitration proceedings "be and the said award is in all respects confirmed, and it is, ordered, that Jos. S. Cohen Sons Co. Inc. . . have judgment upon said award in the sum of $282.90 with interest thereon from June 19, 1950 in the sum of $2.83, or a total of 285.73 against said Harry Lurey, trading as Mack's Dept. Store, in the City of Madison, Georgia, and it is ordered that the Clerk of this Court enter this order as a judgment in the sum of $285.73, and that petitioner may issue execution thereon." Due demand has been made for this indebtedness on the defendant and he refuses to pay. This petition was filed in the office of the clerk of the superior court on November 21, 1950.
On March 23, 1951, the defendant filed his answer in which he denied that he had ever entered into a contract with the plaintiff, denied that the plaintiff had sold and delivered to him the dresses described, denied that he was indebted to the plaintiff; and alleged: "that he had not done business with plaintiff for a period of approximately three years before the alleged contract for merchandise, as alleged in the petition; that the merchandise of the plaintiff was of inferior grade and never compared with the samples displayed; when defendant became aware of this he discontinued to do business with plaintiff; and within approximately twenty hours after the purported contract, defendant learned that plaintiff claimed to have a contract and immediately telegraphed plaintiff by Western Union and informed them that the merchandise would not be accepted; that said telegram was received by plaintiff's home office before the purported contract was received by the home office."
On April 5, 1951, the plaintiff demurred to the answer on the grounds that it set forth no defense whatsoever to the claim, and that the judgment set forth in the petition was conclusive between the parties to the case as to all matters put in issue, or which, under the rules of law, could have been put in issue in the cause in which the judgment was rendered; and demurred specially to that portion of the answer alleging a countermand of the order on the grounds that the facts alleged set forth no defense to the judgment, could have been put in issue in the cause in which the judgment was rendered, and the defendant is concluded by res adjudicata.
On June 4, 1951, the following amendment to the answer was allowed subject to demurrer and objection:
"1. Defendant never entered into the alleged contract referred to in the petition with the plaintiff and that the same is not his act or deed; that he never authorized anyone to make said alleged contract for him, nor has he ever ratified the same; and that the subsequent alleged arbitration and court proceedings are without effect as against this defendant.
"2. Further answering said petition, this defendant says that his wife, without authority, did give an order to the plaintiff for the purchase of some merchandise, which order recited, `This order is taken subject to acceptance by the seller's credit department'; that upon learning of the same, and before the order was accepted by plaintiff's credit department, defendant canceled and countermanded said order, the plaintiff's subsequent acceptance thereof, the arbitration and court proceedings thereafter is a fraud on this defendant, and the action of the court making the alleged award the judgment of the court is void and of no effect.
"3. For further plea and answer this defendant says that if his said wife had authority to give said order, it would not include authority to consent to an arbitration proceeding, or authority to consent to giving jurisdiction to a court of foreign state over the person of this defendant, and that all proceedings had thereunder are void and of no effect.
"4. For further plea and answer this defendant shows that with reference to paragraph 8 of the alleged contract, set out in paragraph 4 of the petition, and especially that portion thereof as provided `the parties consent to the jurisdiction of the Supreme Court of the State of New York in respect to such arbitration, and further consent that any process or notices of motion or other application to the court or a judge thereof may be served outside the State of New York by registered mail or by personal service, provided a reasonable time for appearance is allowed' is void and without effect for the following reasons, viz: (a) That [it] is contrary to public policy of this State to give jurisdiction to a court as to the person or subject matter of a suit; (b) That at the time of the execution of said instrument containing said provision, there was no action or proceeding in existence, and it is the equivalent of a confession of judgment executed at the time of the giving of an obligation upon which judgment is to be obtained, and is, therefore, contrary to the law of this State, and against the public policy thereof; (c) That jurisdiction cannot be given by consent to a cause of action or proceeding which exists only in contemplation and at a time when no cause of action or proceeding is in existence; that a person cannot waive a day in court, to which he is entitled by fundamental law, until the action or proceeding in which he is entitled to a day in court has arisen, and that it is contrary to law and public policy to attempt to do so; (d) That such provision gives rise to the perpetration of constructive frauds on non-residents of the state where the court proceedings are subsequently had, and the use by litigants of courts in the perpetration thereof, thereby practicing a fraud on the court."
On June 7, 1951, the plaintiff renewed its demurrer to the answer as amended and added the following additional grounds of demurrer: (4) That the defendant is concluded as res adjudicata by the judgment of the Supreme Court of New York and estopped from contesting the validity of that judgment for any reason; (5) That the allegations of paragraph 4 a, b, c, and d are all questions of law which are required to be raised by demurrer by the appearance day of the case, and, furthermore, constitute a dilatory plea, which is required to be filed on the appearance day, and the facts purported set forth in the amendment to the answer are not sworn to by the defendant as being true, and the purported amendment, having been offered, allowed, and filed after the appearance day, comes too late.
On July 25, 1951, the plaintiff amended its petition by attaching a duly authenticated copy of the judgment sued on together with all the pleadings and papers attached thereto, including the arbitration proceedings. The material provisions of the judgment are as follows:
"A motion having been made by Jos. S. Cohen Sons Co. Inc., for an order confirming the award of the arbitrator made in the above entitled proceeding dated and acknowledged June 19, 1950.
"Now, upon reading and filing the notice of motion to confirm said award, dated July 26, 1950, the petition of Jos. S. Cohen Sons Co. Inc., duly verified, the agreement dated February 7, 1950, the demand for arbitration, the notice of hearing dated June 6, 1950, the award of the arbitrator dated and acknowledged June 19, 1950, and delivered to petitioner herein, with due proof of personal service thereof upon the respondent, all submitted in support of the motion and the said motion having regularly come on to be heard,
"Now, after hearing William E. Lowther, Esq., attorney for petitioner in support of the motion, and no one appearing in opposition thereto, and due deliberation having been had, and upon filing the opinion of the court, it is, on motion of William E. Lowther, Esq., attorney for Jos. S. Cohen Sons Co. Inc., the petitioner.
"Ordered that the award of Morris Kolchin arbitrator in the above entitled proceeding, dated and acknowledged June 19, 1950, whereby the respondent, Harry Lurey, was found required to pay the sum of $282.90 to the petitioner, Jos. S. Cohen Sons Co. Inc., be and the said award is in all respects confirmed, and it is ordered that Jos. S. Cohen Sons Co. Inc., . . have judgment upon said award . . against Harry Lurey, trading as Mack's Dept. Store, in the City of Madison, Georgia," etc.
On August 7, 1951, the defendant demurred generally to the petition as amended on the ground that it showed no basis of recovery against the defendant. The court overruled this demurrer on August 29, 1951, and the defendant duly filed exceptions pendente lite to that judgment.
On the same day the trial court entered the following judgments on the plaintiff's demurrer to the original petition and its renewed demurrer to the petition as amended:
"Grounds 1 and 2 of the plaintiff's demurrer to the defendant's answer are overruled. The defendant's answer, in response to the allegations in the petition, while a general denial, constitutes a plea of nul tiel record . . [citing cases]. The defendant having alleged in his answer that he did not receive notice of the pendency of the case in the Supreme Court of the State of New York, a jury issue on that question is raised . . [citing cases].
"Ground 3 of the plaintiff's demurrer to the defendant's answer is sustained and the allegations of the answer referred to in ground 3 of the demurrer are stricken as a part of the answer . . [citing cases].
"Plaintiff's renewed demurrer to the answer as amended is sustained to paragraph 1 of the amendment and said paragraph is stricken as a part of the answer. The allegations of paragraph 1 are substantially a plea of non est factum, and while the original answer is a plea of nul tiel record, it is enough to amend by. . . [citing cases]. However, the amendment is not verified as provided for by the Code, sections 81-405 (5650), and 20-801 (4295), and the demurrer for that reason is good. . . [citing cases].
"Plaintiff's demurrer to paragraphs 2 and 3 of the amendment to the answer is sustained . . [citing cases].
"Plaintiff's demurrer to paragraph 4 of the amendment and to sub-paragraphs a, b, c, and d is sustained and said paragraphs are stricken as a part of the answer. Jurisdiction of the person is a personal plea and may be waived." (Citing cases.)
The defendant duly filed exceptions pendente lite to these judgments.
On December 4, 1951, the day of the trial, the defendant offered the following amendment: "Comes now Harry Lurey, trading as Mack's Dept. Store, the defendant in the above styled case, with leave of court first had, and amends his answer therein by reoffering paragraph 1 of the amendment allowed subject to demurrer and objection and filed on June 4, 1951, together with verification hereto annexed, which paragraph was stricken as part of the answer on August 29, 1951, for the reason that same was not verified, said paragraph 1 being as follows [quoting]," and this amendment was duly verified. Upon motion of the plaintiff to strike the proposed amendment because the affidavit was not made at the time of filing the answer and the defense was not made at the appearance day, the trial court entered the following order:
"The amendment referred to in the foregoing motion to disallow, is disallowed for the reason that the defense of non est factum therein set up, was concluded by the judgment of the Supreme Court of New York, and as to the present action, is res adjudicata." The defendant in his final bill of exceptions assigned error on this latter judgment.
Upon the trial of the case, the plaintiff read into evidence the judgment of the Supreme Court of New York together with all the pleadings and papers attached thereto, including the arbitration proceedings, and also read into evidence the notice received by the defendant, which he produced at the trial, of the application to make the arbitration award the judgment of the Supreme Court of New York. The trial court thereupon directed a verdict for the plaintiff, and the defendant in his bill of exceptions assigns error on such judgment.
1. "In a suit in this State upon a cause of action arising out of a judgment rendered in a sister State, it is not necessary to allege or prove an authenticated copy of the record of the entire proceedings, but a prima facie case is made by alleging and proving a properly authenticated copy of the judgment itself." Heakes v. Heakes, 157 Ga. 863 ( 122 S.E. 777); Gibson v. Robinson, 90 Ga. 756 ( 16 S.E. 969); Kerchner v. Frazier, 106 Ga. 437, 439 ( 32 S.E. 351); Little Rock Cooperage Co. v. Hodge, 112 Ga. 525 ( 37 S.E. 743); Patterson v. Drake, 126 Ga. 478 (3) ( 55 S.E. 175); Hirsch v. Lumbermen's Supply Co., 130 Ga. 555, 558 ( 61 S.E. 225); Weaver v. Tuten, 138 Ga. 101 (2) ( 74 S.E. 835).
It was not necessary, under the foregoing authorities, to set forth the entire record upon which the judgment of the Supreme Court of New York was rendered, and the petition in its original form would have, perhaps, stated a cause of action. However, the plaintiff did not stop there but by amendment attached to the original petition the entire proceedings antecedent to the judgment here sued on. The judgment roll having been thus enlarged ( Casey v. Cooledge, 60 Ga. App. 531, 4 S.E.2d 63; Cooledge v. Casey, 58 Ga. App. 134, 135, 198 S.E. 96), shows on its face that the judgment was rendered against a non-resident of New York, resident of Georgia; and shows the facts by virtue of which the plaintiff claims that the Supreme Court of New York obtained jurisdiction of the defendant, namely, that the defendant, by the terms of the alleged contract, which formed the basis of the arbitration proceedings and the judgment, consented, at the time the contract was executed, that the arbitration proceedings be held in New York City, and consented "to the jurisdiction of the Supreme Court of the State of New York in respect to such arbitration, and further consent[ed] that any process or notice of motion or other application to the court or a judge thereof may be served outside the State of New York by registered mail or by personal service, provided a reasonable time for appearance is allowed." It also appears from the judgment roll that the only service upon the defendant relied upon by the plaintiff as having been effected upon the defendant as to the arbitration proceeding was "due notice by mail in accordance with the Commercial Arbitration Rules of the American Arbitration Association as provided in the contract"; and the only notice or service upon the defendant as to the application or motion to make the award of the arbitrator the judgment of the Supreme Court of New York is the affidavit of an associate attorney of counsel for the plaintiff that he "served the within petition, notice of motion and attached exhibits on respondent, Harry Lurey, by depositing true copies of same in a postpaid wrapper . . directed to the respondent Harry Lurey, Mack's Department Store, Madison, Georgia, . . that the petition, notice of motion and exhibits securely wrapped as aforesaid were sent to said respondent registered mail, return receipt requested, showing address where delivered and . . Deponent paid the necessary fees therefor" together with the return receipt which shows that the registered matter was delivered August 8, 1950, at the Post Office in Madison, Georgia, and signed for by Mrs. J. H. Shelton. It also appears from the judgment roll that no one appeared in opposition to the plaintiff's motion to make the arbitrator's award the judgment of the court, that fact being recited in the judgment itself.
"In suing on a judgment of a court of another state, if the declaration, petition, or complaint shows that the court rendering it was a court of record or court of general jurisdiction, it is not necessary to aver in terms that the court had jurisdiction of the parties or the subject matter, or to set out the facts conferring jurisdiction, as this will be presumed until disproved. [But] the rule has been held otherwise, however, where the record shows that the judgment was against a nonresident." 50 C.J.S. 457, § 880, citing Stoer v. Ocklawaha River Farms Co. 223 Ala. 690 ( 138 So. 270, 272); Casey v. Barker, 219 N.C. 465 ( 14 S.E.2d 429); Casey v. Cooledge, 60 Ga. App. 531 ( 4 S.E.2d 63); and see Wilbur v. Abbott, 6 Fed. 814; Cone v. Cotton, 2 Blackf. (Ind.) 82; Gude v. Dakota Fire c. Ins. Co., 7 S.D. 644 ( 65 N.W. 27, 58 Am. St. R. 860).
The judgment having recited that it was rendered against a non-resident, it was incumbent upon the plaintiff to show how the Supreme Court of New York obtained jurisdiction of the defendant; and, no doubt, it was for this purpose that the entire proceedings antecedent to the judgment were, by amendment, made a part of the petition; and being so amended, the petition then showed the manner by which it was assumed that the foreign court purported to acquire jurisdiction of the defendant in the original suit and the plaintiff became bound by such showing. First National Bank of Cresson, Pa. v. Brown, 119 Fla. 761 ( 162 So. 142). None of the usual presumptions of waiver of jurisdiction of the person, that the defendant voluntarily appeared in person or by attorney, or that he was served while within the jurisdiction of the New York court, can be indulged in under the facts of this case. As we have said, the judgment roll shows that the judgment was rendered against a non-resident of New York, and that no one appeared to defend against the arbitration or the judgment making the arbitration award the judgment of the court. It is the accepted principle here and elsewhere that a judgment in personam without voluntary appearance or valid service of process within the jurisdiction is void. Casey v. Barker, supra, and cases cited. It follows, therefore, that the judgment roll of the Supreme Court of New York shows upon its face that it is void, and the trial court erred in overruling the defendant's general demurrer to the petition as amended, rendering all further proceedings nugatory.
Judgment reversed. Gardner, P.J., and Townsend, J., concur.