This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Whether an action which is brought against a nonresident alien enemy should be prosecuted to final judgment or not, depends to a large extent upon the nature of the issues which are involved. In many of the cases no substantial defense was suggested by the nonresident alien, and the only question which was presented was the question of the jurisdiction of the courts to render final judgment. In cases of this sort it is held by practically all the courts that the court has jurisdiction to render final judgment.1 Accordingly, the fact that one of the heirs of a decedent is an alien enemy, does not prevent the court from rendering a final judgment in a proceeding to probate the will of the decedent, especially if such alien enemy had retained counsel before the declaration of war.2
5 See Sec. 2751 et seq.
6See Sec. 2751 et seq. 7See Sec. 2756.
8 McVeigh . United States, 78 U. S. (11 Wall.) 259, 20 L. ed. 80; Windsor v. McVeigh,03 U. S. 274, 23 L. ed. 914; Russ v. Mitchell, 11 Fla. 80; Buford v. Speed, 74 Ky. (11 Bush.) 338; Compagnie Universelle de Telegraphie v. United States Service Co., 84 N. J. Eq. 604, 95 Atl. 187.
9 McVeigh v. United States, 78 U. S. (11 Wall.) 259, 20 L. ed. 80; Windsor v. McVeigh, 93 U. S..274, 23 L. ed. 914.
10 Rau v. Rowe, 184 Ky. 841, 213 S. W. 226.
If, however, the alien enemy is not represented by counsel, and it appears that he may have a meritorious defense, it has been said that the interests of the resident plaintiff can be protected and possible injustice to the alien enemy may be prevented by permitting the action to be brought, thus subjecting the property in question to the jurisdiction of the court, and then by continuing such action until the termination of the war, or until such time as the alien enemy may be heard.3
1 England. Robinson v. Continental Ins. Co. , 1 K. B. 155.
United States, McVeigh v. United States, 78 U. S. (11 Wall.) 250, 20 L. ed. 80; Washington University v. Finch, 85 U. S. (18 Wall.) 106, 21 L. ed. 818; Watts v. Unione Austriaca Di Navigazione, etc., 248 U. S. 9, 63 L. ed. - [ reversing, 229 Fed. 136]; The Kaiser Wilhelm II, 246 Fed. 786, L. R. A. 1918C, 795 [reversing decree, 230 Fed. 717].
Massachusetts. Riddell v. Fuhrman, - Mass. - , 123 N. E. 237.
Minnesota. McNair v. Toler, 21 Minn. 175.
Missouri. De Jarnette v. De Giver-ville, 56 Mo. 440.
2 Riddell v. Fuhrman, - Mass. - , 123 N. E. 237.
3 Watts v. Unione Austriaca Di Navigazione, etc., 248 U. S. 9, 63 L. ed - [reversing, 229 Fed. 136]; The Kaiser Wilhelm II, 246 Fed. 786, L. R. A. 1918C, 795 [reversing decree, 230 Fed. 717]; City National Bank v. Dresdner Bank, 255 Fed. 225; Kintner v. Hoch-Frequenz-Maschinen Aktien-Gesellschaft für Drahtlose Telegraphie, 256 Fed. 849.
"This case is exceptional in its situation, and calls for the exercise of that range of discretion which the broad powers of a court of admiralty enable it to exercise. Such broad powers and range of discretion are, in our judgment, fittingly exercised by an order which will make due provision for, first, giving the German citizen and belligerent an opportunity to litigate his rights if relations with his country are hereafter resumed; second, providing for adjudging, if the government hereafter so desires, its rights and liabilities, if any, in taking over libeled property of the German subject; third, adjudging hereafter what effect the taking of this ship by the government had on the claim of the British lienor, and the further obligation of the German vessel owner as between themselves.
"In following this course, and protecting the unprotected rights of an absent German citizen while this country is at war with the Imperial government of its country, we are impelled by three all-sufficient reasons: first, the innate sense of fairness, decency, and justice, which respects the rights of an enemy; second, the broad principles of international intercourse, which lead courts and nations that believe in international rights, to be the more careful to observe them toward belligerents; and lastly, because the awarding to this German citizen, with whom our country is at war, the careful preservation until times of peace of its rights, is in line with those high ideals of Anglo-Saxon justice which led the British courts years ago, in Ex Boussmaker, 13 Ves. Jr. 71, 33 Eng. Rep. 221, 9 Revised Hep. 142, decided in 1806, to allow the claim of an alien enemy to be proved in time of war and the dividends held by the British court until peace. Indeed, the fact that our country is now at war with Germany is all the more reason why this court should most scrupulously award to this German citizen those international and equitable rights which no fair-minded people ever deny, even to their enemies in times of war." The Kaiser Wilhelm II, 246 Fed. 786, L. R. A. 1918C, 795 [reversing decree, 230 Fed. 7171.