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CHERUN v. FRISHMAN

December 11, 1964

Alex CHERUN, Plaintiff,
v.
Bernard Lyon FRISHMAN, Defendant



The opinion of the court was delivered by: TAMM

This case is before the Court on cross motions by both the plaintiff and the defendant for summary judgment.

The plaintiff, Alex Cherun, has brought this action upon a judgment which he recovered against the defendant, Bernard Lyon Frishman, in the amount of $ 73,353.26 on January 14, 1964, in the Supreme Court of Ontario, Dominion of Canada.

 The defendant first denies that the judgment was an in personam money judgment against him, and second, he asserts that if the judgment be considered as in personam the Supreme Court of Ontario lacked personal jurisdiction over the defendant to grant such a judgment.

 There appears to be no genuine issue of material fact in this case, and, therefore, the Court must decide the several issues of law presented by the established facts in order to dispose of the parties' respective motions.

 The undisputed facts upon which these questions arise are as follows. On December 7, 1961, the plaintiff Cherun, a resident and citizen of Ottawa, Ontario, Canada, as mortgagee, and the defendant Frishman, a United States citizen residing in the District of Columbia, as mortgagor, executed in the District of Columbia an indenture of mortgage whereby in consideration of plaintiff's paying to defendant the sum of $ 100,000.00 the defendant granted and mortgaged unto plaintiff a certain tract of land in Ottawa known as Lots 31 and 32 on the North side of Stewart Street. The mortgage was registered in the Registry Office for the Registry Division of the City of Ottawa on December 13, 1961 as Number 436775. The mortgage obligated defendant to pay to plaintiff the sum of $ 100,000.00 in various installments, with the balance being due and payable on or before December 15, 1964. Defendant failed to make payments as provided in the mortgage agreement, and on December 11, 1963 plaintiff filed suit against Frishman in the Supreme Court of Ontario asking that the mortgage be enforced by foreclosure and, pursuant to a covenant in the mortgage, seeking to recover from the defendant the sum of $ 70,000.00, plus interest.

 Pursuant to Section 25(1)(b) of the Consolidated Rules of Practice of Ontario, Frishman was served personally in the District of Columbia with a Writ and Notice of Writ fully apprising him of the Ontario proceedings and giving him an opportunity to contest them. However, the defendant failed to appear. Thereupon, the Supreme Court of Ontario entered a default judgment against the defendant, referred the matter to a local Master, and directed that Frishman pay to the plaintiff such sum as the Master should find due the plaintiff 'for principal money, interest and costs at the date of the said (Master's) Report.' The Court further directed that upon payment of the amount due the plaintiff, the plaintiff should assign and convey the mortgaged premises to the defendant.

 In accordance with such direction, the local Master took testimony and filed his Report. He found that notice had been duly served upon the defendant according to the practice of the Court. The Master concluded:

 'There is due to the said Plaintiff at the date of this Report for principal, interest and costs the sum of $ 73,353.26.'(Emphasis added.)

 The first question which these facts present is whether, and under what conditions, the courts of the United States will recognize and give effect to the judgments of the courts of foreign countries against United States citizens, and in particular to the judgments of the courts of Canada.

 In Hilton v. Guyot, 159 U.S. 113, at 205-206, 16 S. Ct. 139, at 159-160, 40 L. Ed. 95, the Supreme Court answered this question in the following broad statement:

 'When an action is brought in a court of this country, by a citizen of a foreign country against one of our own citizens, to recover a sum of money adjudged by a court of that country to be due from the defendant to the plaintiff, and the foreign judgment appears to have been rendered by a competent court, having jurisdiction of the cause and of the parties, and upon due allegations and proofs, and opportunity to defend against them, and its proceedings are according to the course of a civilized jurisprudence, and are stated in a clear and formal record, the judgment is prima facie evidence, at least, of the truth of the matter adjudged; and it should be held conclusive upon the merits tried in the foreign court, unless some special ground is shown for impeaching the judgment, as by showing that it was affected by fraud or prejudice, or that, by the principles of international law, and by the comity of our own country, it should not be given full credit and effect.'

 That case involved a suit on a French judgment, and the Supreme Court held that since France would not give conclusive effect to the judgment of the United States and other foreign countries but would inquire into the merits behind the judgment, then for want of reciprocity and based on principles of international law and comity, the courts of the United States need not give conclusive effect to the judgments of the courts of France.

 On the same day of its decision in Hilton v. Guyot, the Supreme Court decided a similar case arising out of an ontario, Canada suit. In Ritchie v. McMullen, 159 U.S. 235, 242, 16 S. Ct. 171, 174, 40 L. Ed. 133, the Court found that under 'the law of England, prevailing in Canada, a judgment rendered by an American court under like circumstances would be allowed full and conclusive effect,' and therefore courts of the United States should give the same effect to Canadian judgments provided, of course, that the other conditions set forth in Hilton v. Guyot are met.

 The only condition which has been questioned in this case is whether the Ontario court had personal jurisdiction over the defendant to render a judgment in personam against him. The Court must presume, therefore, that the other conditions, such as notice and opportunity to be heard, were satisfied, as indeed it appears to be so. However, before deciding the ultimate issue of whether the Ontario court ...


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