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08/12/95 PINNACLE ARABIANS v. WILLIAM SCHMIDT

August 12, 1995

PINNACLE ARABIANS, INC., PLAINTIFF-APPELLEE,
v.
WILLIAM SCHMIDT, A/K/A BILL SCHMIDT, DEFENDANT-APPELLANT (KATIE SCHMIDT AND WILLIAM SCHMIDT, D/B/A SCHMIDT ARABIANS AND SCHMIDT ARABIANS, INC., DEFENDANTS).



Appeal from the Circuit Court of McHenry County. No. 94-LA-244. Honorable James C. Franz, Judge Presiding.

The Honorable Justice Doyle delivered the opinion of the court: McLAREN, P.j., and Bowman, J., concur.

The opinion of the court was delivered by: Doyle

JUSTICE DOYLE delivered the opinion of the court:

Defendant, William Schmidt, appeals the circuit court's order granting the petition of plaintiff, Pinnacle Arabians, Inc., to register in McHenry County a Canadian judgment against defendant. Defendant contends that the Canadian court lacked personal jurisdiction over him and that the judgment was obtained fraudulently.

In December 1992, plaintiff filed suit in the Court of Queen's Bench of Alberta, Canada, against William Schmidt, Katie Schmidt, Katie Schmidt and William Schmidt carrying on business as Schmidt Arabians, and Schmidt Arabians. Plaintiff alleged that defendants breached a contract for the purchase of horses from plaintiff. The record reflects that Katie Schmidt was served personally while defendant was served by abode service upon Katie Schmidt.

Defendant and Katie Schmidt, his wife, filed a pro se "Statement of Defense" on February 8, 1993. Subsequently, Molstad Gilbert, a firm of Canadian solicitors, filed an appearance, an "Amended Statement of Defence" and a counterclaim, purportedly on behalf of all defendants. The amended statement of defence, inter alia, raised the defenses that defendant was not connected with the business of Schmidt Arabians and was not a party to the contract.

According to a certificate issued by the Canadian court, "An application for summary judgment was heard on May 18, 1993, the Defendants appearing." The court granted summary judgment to plaintiff against all defendants for $36,915.89 U.S. Apparently, no appeal was taken from this judgment.

On May 26, 1994, plaintiff petitioned the circuit court of McHenry County to register the foreign judgment. Once again, Katie Schmidt was personally served with the petition to register the foreign judgment, while defendant was served by substituted service. Oliver, Close, Worden, Winkler, Greenwald & Maier purportedly entered an appearance on behalf of all defendants. That firm was later granted leave to withdraw.

Defendant obtained new counsel and filed a petition to vacate the judgment. Defendant's affidavit was attached to the petition. In it, defendant asserted that he had no connection whatsoever with Schmidt Arabians, but rather it was a corporation of which his wife was the sole stockholder and officer. Defendant never entered into any contract with plaintiff and was never in Canada in connection with this or any other matter involving plaintiff. Defendant was not served with any papers in connection with the Canadian lawsuit and did not retain an attorney to represent him in Canada or consent to the entry of judgment against him. Defendant was never served in connection with the petition to register the foreign judgment. The attorneys purportedly representing his interests in the registration action were not authorized to do so.

The court conducted a hearing on defendant's petition. According to the bystander's report of that hearing, defendant's testimony was substantially similar to his affidavit. However, on cross-examination, defendant admitted that he owned property in Illinois and that he was aware that there were horses on that property which came from plaintiff. Defendant also had offspring from those horses. He admitted that he and Katie Schmidt had a joint bank account, but was unaware that plaintiff had received a check drawn on the joint account in payment of the judgment.

The court admitted plaintiff's exhibits into evidence without objection. These included copies of the statement of defense and amended statement of defence filed in the Canadian action, both of which purportedly contain defendant's signature. Also included was a magazine advertisement for a stallion that was owned by

"SCHMIDT ARABIANS

Bill Schmidt

28 W 224 Rosevelt ...


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