Shepard v. Wright — 23 N.Y. St. Rep. 727

Majority

p. 727

Gustavus Shepard, App’lt, v. Reuben G. Wright, Resp’t^[1]

(Court of Appeals,

Filed June 4, 1889.)

Headnote

1. Foreign judgment—When not given effect.

Comity does not require our courts to give effect to a personal judgment rendered under a foreign law, where on the face of the record it appears, that jurisdiction of the person was not obtained.

p. 728

2. Same—Residence to be deemed one’s domicile. •

The place of residence of a person is to be deemed his domicile also, unless something is shown to vary the ordinary and general rule,

3. Same—Service oe summons upon a non-besident in a foreign state VOID.

Where the judgment upon which the action was brought appeared to have been rendered in the Dominion of Canada by the court of chancery for Ontario, and was a personal judgment against the defendant, the record showing that he did not appear in the action, and disclosing, as the ground of jurisdiction over his person, the service of process upon him at his place of residence in this state- Held, that such service was ineffectual to give the judgment validity here, if the defendant was not a citizen of Canada or domiciled within that jurisdiction.

Appeal from a judgment of the supreme court, general term, first department, affirming a judgment of the trial court, dismissing the complaint.

G. W. Cotter ill, for app’lt; Luther R. Marsh, for resp’t.

The judgment upon which this, action was brought appears to have been rendered in the dominion of Canada, by the court of chancery for Ontario, and is a personal judgment against the defendant. The record shows that he did not appear in the action, and discloses, as the ground of jurisdiction over his person, the service of process upon him at his place of residence in this state. It is beyond question that such service was ineffectual to give the judgment validity here, if the defendant was not a citizen of Canada or domiciled within that jurisdiction. Schwinger v. Hickok, 53 N. Y., 280 ; Gibbs v. Queen Ins. Co., 63 id., 114; Pennoyer v. Neff, 95 U. S., 714 ; Freeman v. Alderson, 119 id., 185.

The contention of the appellant is that the court of chancery for Ontario was shown to be a court of general jurisdiction, whose judgment stood presumptively valid until some defect was shown, and the defendant should have alleged and proved that he was not a citizen of Canada, when the service was made, nor domiciled there. The question thus becomes one of pleading and proof. The complaint alleged, as the ground of jurisdiction by the Canadian court, that the defendant appeared in the action, and averred no other. The answer of the defendant denied this allegation, and affirmatively alleged that the Canadian court had no jurisdiction to render the judgment against him, because he neither appeared in the action, nor was process served upon him in Canada.

When this issue came to trial the plaintiff introduced the record, and that showed on its face that the service was made upon the defendant at his residence within this state. But, argues the plaintiff, there is a difference between residence and domicile, and the defendant, although residing in this state, may have had his domicile in, and have been

p. 729

a, citizen of, the Dominion. Assuming that there may be such a difference, yet the place of residence is the domicile, unless something is shown to vary the ordinary and general rule. Here the record shows residence in this state at the date of the service. That residence is also to be deemed the domicile until some facts are shown to negative the inference. Hone such appeared, and we cannot presume or imagine them in the face of the fact shown, from which the natural inference is that the defendant’s domicile was in this state, within which he resided. Ho rule of comity requires us to give effect ,tó a personal judgment rendered under a foreign law where, on the face of the record, it appears that jurisdiction of the person was not obtained.^

The judgment was right and should be affirmed, with costs.

All concur.