Christian & Craft Co. v. Coleman, 125 Ala. 158

Christian & Craft Co. v. Coleman

125 Ala. 158 | Ala. | 1899

McCLELLAN, C. J.

We are of opinion that the record. of the Supreme Court of British Honduras put in evidence below shows that that court had jurisdiction of Christian-Craft Grocery Co. for the purpose of a valid judgment by default against that company on the plea of set-off or counter-claim interposed by Coleman, the defendant in that action. On general principles of pleading and jurisdiction, the interposition of a plea'of set-off is not the institution of a new action in the sense that formal notice of it must !be served on the plaintiff, but is a mere mode of defense of which the filing is notice to him and upon which, if he fail to reply within the time fixed by the rules of the court, a judgment by default may be taken against him; the rendition of such judgment being conclusive that he has failed to seasonably take issue upon or reply to the plea. — 6 Ency. PI. & Pr. p. 76; St. Louis v. Clemens, 36 Mo. 467 et seq; Aston v. Wallace, 43 Ind. 468; Aymar v. Chace, 12 Barb. (N. Y.) 301; Heebner v. Shepard, 63 N. W. Rep. 892. But the record of the judgment introduced below and shown here in the transcript shows affirmatively that a copy of the defendant’s plea of set-off was served upon plaintiff’s solicitor in the case, and hence that plaintiff had actual notice of the interposition by the defendant of the claim upon which the latter took judgment by default. In any possible view of the case, therefore, there is no room for saying, assuming that plaintiff brought the suit and was represented therein by solicitor Maxwell, that the Supreme Court of British Honduras was without personal jurisdiction of the plaintiff to render the judgment by default against him.

*170Upon general common law principles, which we are to presume obtained in the British colony of Honduras, the judgment by default 'on defendant’s plea of set-off put the plaintiff out of court, and he was not entitled to any notice with reference to the execution of the writ of inquiry which ivas thereupon aAvarded. If there Avas any statute or efficacious rule of court requiring such notice in the courts of Honduras no evidence thereof was adduced beloAV. The fact that defendant’s solicitors in a way gave notice of the execution of the writ to the plaintiff is not evidence to impeach the judgment that such notice was necessary to jurisdiction for the assessment of damages. And, moreover, this notice being unnecessary according to the general course and principles of the laAv to the investiture of jurisdiction in the tribunal assessing the damages, any sort of notice which the statute laws of the forum or the rules of the particular court may prescribe must be held to be sufficient notice, as, for instances, notice by publication, or by mail, or by delivery of a copy by an unofficial person in a foreign jurisdiction. So that if we are to conclude that notice Avas necessary of the execution of the Avrit of inquiry from the fact that notice was given by unofficial service of copies of the writ, orders etc. on the plaintiff in Mobile, we are also to assume that that Avas the notice and the service thereof prescribed, to the further conclusion that the Honduras court thereby acquired jurisdiction to execute the writ and assess the damages. Nor Avould a different result ensue Avere Ave to pretermit the indulgence of the presumption that the common law prevails in British Honduras. In such case, there being no evidence as to what the la\v of that country is in the respect under consideration, we are to test the integrity of this judgment by the laws of the forum in which it is being tested, the laws of Alabama; and, no notice being-necessary under our laws, to regard Avhat was done or attempted to be done to Avar d giving the Christian-Craft Grocery Co. notice of the execution of the writ of inquiry, as shown by the record of the judgment, as acts of the merest supererogation.

The record of the Supreme Court of British Hondu*171ras properly certified to the court below and now before us, shows that a suit was instituted in that court by the Christian-Craft Grocery Company against John Coleman, and that F. M. Maxwell a solicitor of that court represented the plaintiff in that action at its institution and for a considerable length of time afterwards. For all the purposes of the present case this shows prima facie at least that Maxwell instituted that suit by authority of the plaintiff therein. And there is nothing in the present record tending to rebut this primafacie showing . To the contrary, the only witness introduced by the defendant below, John Craft, vice-president of the corporation, testified that the claim upon which the suit in Honduras had been instituted Avas turned over to Mr. Balcer for collection and that Baker had taken the note to British Honduras — for collection, of course — and there died; all which goes to sustain the record, if that were necessary, or admissible, since the institution of suit is the ordinary method of collecting debts. The further testimony of this Avitness that “he knew of no suit having been instituted by the defendant against the plaintiff in British Honduras,” has no legitimate tendency to show that Baker acting for the Christian-Craft Grocery Co., or even that that company directly, had not employed Maxwell to institute and prosecute the suit in Avhich Coleman on his plea of set-off and counter claim (which is nothing more than our statutory plea of set-off under Avhich a recovery over may be had) recovered the judgment uoav sued on against the plaintiff in that action.

Of course it was necessary for the plaintiff to prove that the “Christian & Craft Company” sued on the judgment put in evidence Avas the “Christian & Craft Grocery Company” against AAdiicli that judgment 'was rendered; and the court committed no error in allowing the fact to be proved by the introduction of the original record from the probate office showing that the Christian-Craft Grocery Company had since the rendition of the judgment changed its name to the “Christian & Craft Company.” — Code, §§1284, 1816; Willingham v. State, 104 Ala. 59, 60; Stevenson v. Moody, 85 Ala. 33, 35.

*172The construction and effect of the record certified from the Supreme Court of British Honduras was to be declared by the court, and was properly declared in that portion of the general charge to which an exception was reserved.

The rulings of the trial court were in harmony with what we have said above, and its judgment must be affirmed.

A firmed.