McDonnell v McDonnell

• Jurisdiction: Ireland
• Judgment Date: 01 January 1921
• Date: 01 January 1921
• Court: King's Bench Division (Ireland)

K. B. Div.

M'Donnell v. M'Donnell.

M'DONNELL

and

M'DONNELL (1)

Foreign judgment - Enforcement - Action - Defence - Judgment not final and conclusive.

Trial of Action.

This action was tried before Mr. Justice Samuels, sitting without a jury, at the Michaelmas Sittings, 1919. It was brought by the plaintiff, the widow of Alexander M'Donnell, deceased, against the defendant as executor of her deceased husband. The plaintiff claimed the sum of £480, the equivalent in English money of 2,400 dollars, being the amount due to the plaintiff on foot of a judgment dated the 3rd day of April, 1911, of the District Court of the Third Judicial District of the State of Montana, in the United States of America, and submitted that the said Court was duly constituted and held in accordance with the laws of the United States of America. The plaintiff, by her claim, also sought to recover the sum of £66 19s. 10d., for money payable by the defendant as such executor to the plaintiff

for money paid by the plaintiff in and about the funeral of the said deceased. The defendant traversed the allegations in the statement of claim, denied the jurisdiction of the Court of Montana, and pleaded that he did not request the plaintiff to pay deceased's funeral expenses; that said expenses were extravagant, and that he had fully administered the estate and effects of deceased.

The following statement of the facts is taken from the judgment of Molony C.J.—

This action was brought by Mary Anne M'Donnell against Patrick Joseph M'Donnell, as executor of Alexander M'Donnell, deceased, to recover the sum of £480, claimed to be the amount due on foot of a judgment of the District Court of Montana, in the United States of America, and £66 19s. 10d. for money paid in respect of the funeral of the said Alexander M'Donnell, deceased.

The defendant, in his defence, denied the existence and validity of the alleged judgment, and also relied upon the plea of plene administravit. He traversed the causes of action as respects the funeral expenses, but it was admitted before us that the expenses were reasonable and proper, and no issue was raised in reference to them.

It appears from the evidence and documents proved at the trial that the plaintiff, Mary Anne M'Donnell, was married to Alexander M'Donnell, deceased, and had one child, a daughter named Edna. The parties went to America, and in 1911 were both resident in Montana. In that year differences having arisen between them, the plaintiff brought a suit in the District Court of the Third Judicial District of the State of Montana claiming maintenance as against the deceased. The proceeding was apparently one which, according to the law of the State, was to be adopted where the applicant had a conscientious objection to divorce, and the complaint contains a recital to that effect. On the 3rd April, 1911, the Court made an order by which the said Alexander M'Donnell was ordered and adjudged to pay into the office of the Court the sum of forty dollars per month for the support and maintenance of the plaintiff until the further order of the Court.

Alexander M'Donnell shortly afterwards returned to Ireland, and afterwards went back to America and died there. He never lodged any sum in Court in pursuance of the decree, nor did he pay any sum to the plaintiff, and at the time of his death he ought to have lodged 2,400 dollars, or, in British currency, £480. He made his will on the 2nd day of June, 1914, leaving his property to the defendant, and on the 9th day of January, 1918, the defendant obtained probate of the said will, the assets being sworn for such purpose at £475.

No evidence was given at the trial as to the law of Montana.

Mr. Justice Samuels gave judgment for the amounts claimed against the defendant as executor of Alexander M'Donnell, deceased.

The form of the order of the District Court of the Third Judicial District of the State of Montana was as follows:—

In the District Court of the Third Judicial District of the State of Montana, in and for the County of Deer Lodge.

Mary A. M'Donnell, plaintiff, v. Alexander M'Donnell, defendant.

Order.

The application of the plaintiff in the above entitled action, coming on regularly, to be heard in open Court, at the regular April, 1911, Term of said Court on this 3rd day of April, 1911, for support and maintenance and counsel fees in her behalf; and it appearing to the Court that on the 22nd day of March, 1911, an Order was duly issued out of said Court in the above entitled action, directing and requiring the above-named defendant to show cause, if any he has, why he should not be required to pay a monthly sum for the support and maintenance of the above-named plaintiff and counsel fees in her behalf, and which Order was duly made and given, and which Order was by said Court made returnable at the hour of 9.30 a.m. of the 3rd day of April, 1911, and it appearing to the Court that said Order was duly served on the defendant, together with a copy of the complaint and a copy of the affidavit of the above-named plaintiff, and the Court being unable to hear said Order at the time designated therein, the hearing of the same was by consent of the parties by the Court continued until the hour of 1.30 p.m. of the said 3rd day of April, 1911, at which time the above-named plaintiff appeared in person and with her counsel, T, P. Stewart, and J. H. Duffy and John H. Tolan, Esq., appearing in behalf of the defendant, the Court by consent of counsel proceeded with the hearing of the Order aforesaid, and the above-named plaintiff, Tom O'Brien, Mr. Hayes, and Stocton Veazy were each sworn and testified in behalf of the plaintiff in the above action and there being no testimony offered by or in behalf of the above-named defendant, and the Court having duly considered the testimony in behalf of the plaintiff aforesaid, does hereby order, and it is hereby ordered, adjudged, and decreed that the above-named defendant pay into the office of the clerk of the above entitled Court on the 8th day of April, 1911, the sum of forty (40) dollars, for the support and maintenance of the above-named plaintiff, and that he further pay on the 8th day of each and every month after the said 8th day of April, 1911, the sum of forty (40) dollars per month for the support and maintenance of the above-named plaintiff, and that such payments be made until the further order of the Court; and it is further ordered, adjudged, and decreed, and this Court does hereby order, adjudge, and decree that the above-named defendant pay to J. H. Duffy and T. P. Stewart as counsel fees in behalf of the above-named plaintiff the sum of one hundred (100) dollars, and which said sum (of 100$) shall be paid as follows: fifty dollars on the 12th day of April, 1911, and the remaining fifty dollars on the 9th day of May, 1911.

And it is further ordered, adjudged, and decreed that the restraining Order issued by the above entitled Court on the 22nd day of March, 1911, shall continue to remain in full force and effect until the further order of this Court.

Done in open Court this 3rd day of April, 1911.

Jeremiah J. Lynch,

Presiding Judge of the above entitled Court.

By an order of the District Court of the Third Judicial District of the State of Montana, made in an action in which the plaintiff sued her husband for support and maintenance, he was ordered "to pay into the office of the Clerk of the Court the sum of forty dollars per month for the support and maintenance of the plaintiff, such payments to be made until the further order of...