164 East 72nd Street Corp. v. Ismay

California Court of Appeal Aug 28, 1944 No. Civ. 3310Published

Before: Barnard

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Holding. The court held that a complaint to establish a foreign judgment is sufficient without alleging that leave to enforce the judgment was obtained under foreign law, as the right to maintain an action for a new judgment is distinct from the right to enforce an existing one. Furthermore, foreign statutes must be pleaded and proved, and the court cannot take judicial notice of them.

Issues

Whether a complaint to establish a foreign judgment must allege that leave to enforce the judgment was obtained under foreign law.
Whether the trial court may take judicial notice of foreign statutes to sustain a demurrer.
Whether the right to maintain an action on a foreign judgment is distinct from the right to enforce that judgment.

Disposition. reversed

Quotations verified verbatim against the opinion

“The enforcement of a judgment is a matter which is entirely separate and distinct from the right to procure a judgment.”

“The courts are neither authorized nor required to take judicial notice of the statutes of a foreign country.”

“The finality of a foreign judgment is to be presumed until the contrary appears.”

BARNARD, P. J.—

This is an appeal from a judgment in favor of the defendant after a demurrer was sustained without leave to amend.

The action was brought for the purpose of establishing an English judgment. The complaint is in the usual form and alleges that the judgment, which is described, was duly entered in the High Court of Justice, King’s Bench Division, in London, England, on June 25, 1935; that it remains a valid and subsisting judgment which is in full force and effect; that it has never been modified; and that no appeal has been taken therefrom. Facts are also alleged showing that the statute of limitations has not run.

No brief has been filed by the respondent. It appears, however, that the grounds of the demurrer which was sustained were that the facts stated were not sufficient to constitute a cause of action, that the court had no jurisdiction of the subject of the action, and that the complaint was uncertain in that it failed to allege that leave to enforce the judgment sued on had been obtained from the High Court of Justice, King’s Bench Division in London, England. In support of the demurrer the respondent relied on the Emergency Powers Act adopted in England in 1939 (Chitty’s Annual Stats., vol. 33, pp. 483-487). This act seems to provide that during the existing emergency a person shall not be entitled,

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except with the leave of the appropriate court, to proceed to execution on, or otherwise enforce, any judgment or order of any court, with a provision excepting five different kinds of judgments or orders from the operation of the act.

It is stated in the appellant’s brief that the trial court was of the opinion that the provisions of this English statute precluded the appellant from maintaining this action without alleging that it had first obtained leave of the appropriate English court. The sole question presented on this appeal is whether the complaint is sufficient in the absence of such an allegation.

It may be first observed that whether or not a right to take out execution upon the entry of a judgment exists is not controlling with respect to the right to maintain an ae- ' tion and to proceed to judgment. Whether or not one is entitled to enforce an existing judgment does not affect his right to maintain an action brought to obtain a new judgment.

164 East 72nd Street Corp. v. Ismay

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