Roblin v. Long

Mullin, J. Plaintiff moves for judgment in this case on the ground that defendant’s answer is sham and frivolous. This practice was permissible under section 247, Code of Procedure. That section provides, that where “a demurrer, answer or reply is frivolous, the party prejudiced thereby, upon a previous notice of five days, may apply to a judge of the court, either in or out of court, for judgment thereon, and judgment may be given accordingly.” This practice is not changed, but remains the same under section 537 of the Code of Civil Procedure as under section 247 of the old Code. \ / This action is brought to enforce the judgment and decree of the court of chancery of the Province of Ontario and Dominion of Canada.') The complaint in this action, which is verified, contains a certified copy of the chancery decree; by this record it appears that the defendant was personally served with process; that he appeared by attorney in said court and duly answered; that a trial was there had on the merits, and that as the result of such trial a judgment was rendered against the defendant. The defendant now comes into this court and serves an answer, in which he interposes two defenses: 1. He denies any knowledge or information sufficient to form a belief as to all the allegations of the complaint, except the allegation of defendant’s omission and refusal to pay the [205] sum of $195.95, that being the amount of costs entered in the foreign decree. 2. /'That the matter in suit pertains to real estate situate in the Dominion of Canada, and that the supreme court of this state has no jurisdiction to enforce such judgment and decree. The first count of defendant’s answer is manifestly sham and should be stricken out. In this class of cases, brought in the courts of this state to enforce the judgments and decrees of the courts of a foreign state or country, an answer denying any knowledge or information sufficient to form a belief as to all the material allegations of the complaint, will be stricken out as sham, where the defendant appeared in the original action. The defendant is bound to know whether in such a case process was served on him, and whether he appeared and answered, and whether judgment was rendered against him on the trial. These are facts which the defendant is presumed to know, and his denial must therefore be positive and unequivocal, and not upon information and belief. Such a denial is equivocal and presumptively interposed in bad faith. /The second answer is clearly frivolous. The law is well settled in this country that courts of justice in one state will, out of comity, enforce the laws of another state or country, where by such enforcement they will not violate their own laws or inflict injury upon some one of their own citizens. This court having acquired jurisdiction of the person of the defendant, it possesses full power to enforce the judgment and decree of the chancery court of Canada, to the extent of compelling defendant to convey the lands mentioned in the complaint though the same are situated in the Province of Canada and without the jurisdiction of this court., The defendant’s answer is therefore stricken out as sharn and frivolous, and judgment is ordered for the plaintiff for the relief demanded in the complaint with ten dollars costs of this motion