author: Guernsey, J. By the Court.

text:
    Beachler et al., Appellees, v. Ford et al., Appellants. (Two cases.)
    (Nos. 617 and 618
    Decided February 2, 1945.)

      Messrs. Murphy & Staley and Mr. George W. Porter, for appellees.

      Mr. Wilbur D. Spiclel, for appellants.
   Guernsey, J.

Canse No. 617 involves an appeal on questions of law by Charles C. Ford and E. T. Ford from a judgment of the Common Pleas Court of Darke county, Ohio, in an action (being cause No. 31017 in that court) wherein Mary E. Beaehler and others were plaintiffs and Charles C. Ford and E. T. Ford and others were defendants, overruling separate motions, amendments to such motions and supplemental motions of the defendants Charles C. Ford and E. T. Ford, all filed within the term the verdict and judgment were rendered, to set aside the verdict and judgment rendered in such cause and to grant the defendants Ford a new trial.

The subject matter of the action is the contest of the will of W. H. Ford, a brother of the defendants Ford.

Cause No. G18 involves the separate appeals of the defendants Charles C. Ford and E. T. Ford from a judgment of the Common Pleas Court of Darke county, Ohio, in an action (being cause No. 31018 in that court) wherein Mary E. Beaehler and others were plaintiffs and Charles C. Ford and E. T. Ford and others were defendants, overruling the separate motions of the defendants Charles C. Ford and E. T. Ford, the amendments to such-motions and supplemental motions to set aside the judgment rendered in the cause and to grant defendants a new trial.

The subject matter of the action is the setting aside of a deed of real estate, executed and delivered by the decedent, W. H. Ford, to the defendant Charles C. Ford, upon the ground that W. H. Ford was incompetent to execute and deliver such deed, and for partition of the premises.

Tlie parties to both actions are the same. By agreement of the parties the motions in both the cases were, heard and submitted together and, as the legal questions raised by the separate appeals in both actions are practically the same, the appeals in both cases will be considered together in this opinion.

In cause No. 617 the plaintiffs, in their p.etition, allege that on the 11th day of November 1941 W. II. Ford died leaving an estate and leaving the plaintiffs and defendants Charles C. Ford and E. T. Ford his only heirs at law and next of kin; that on the 16th day of February 1942 a writing purporting to be the last will and testament of W. H. Ford, dated the 18th day of June 1934, was admitted to probate and letters testamentary were issued to Charles C. Ford who qual^ ified as executor; and that by the terms of such paper writing Charles C. Ford, E. T. Ford and Joseph Ford (who predeceased*W. II. Ford) are named as the several legatees and devisees of W. H. Ford, deceased. •

Plaintiffs further allege that the paper writing was not the last will and testament of W. H. Ford, and pray that an issue be made as to whether such paper writing is the last will and testament of W. H. Ford, deceased, and that the same be set aside.

Summons on the petition was duly issued for, and served on, the defendants Charles C. Ford and Charles C. Ford as executor of the estate of W. H. Ford, deceased.

An affidavit for constructive service upon the defendant E. T. Ford was duly filed, being in the words and figures following, to wit:

“State of Ohio, Darke county, ss:

“Mary E. Beachler, being first duly sworn on her oath, deposes and says that the defendant, E. T. Ford, resides at Red Key, Indiana, and that the defendant, F. F. Wassam, administrator of the estate of Joseph Ford, deceased, resides at 3216 Home avenue, Marion, Jndiana, and that by reason thereof, service of summons cannot be made upon said defendants; that this is an action to contest the will of W. H. Ford, deceased, and is one of those actions provided for in Section 11292 of the General Code of Ohio.

“Further affiant saith not.

‘£ Mary E. Beachler. ’ ’

Pursuant to such affidavit, advertisement for service by publication on E. T. Ford was duly published in the issue of the Greenville Daily Advocate of June 23, 1942, and mailed to E. T. Ford at Red Key, Indiana.

Neither of the defendants Charles C. Ford and E. T. Ford filed a demurrer or answer to the petition within rule, and, such defendants being in default for answer or demurrer, the court assigned the cause for trial for October 6,1942. Neither of the defendants had notice of such assignment and neither appeared at the trial of the cause.

On the trial of the cause, it appearing to the court that no jury issue had been made up by the pleadings, it was ordered that the following issue of fact be submitted and tried by the jury, to wit, “Is the writing-produced the last will and testament of W. H. Ford, deceased?”

Trial was then had to a jury' on the issue made by the court with reference to the validity of the will and the jury, upon the trial, found that the paper writing admitted to probate was not the last will and testament of W. H. Ford.

The verdict of the jury was returned on October 6, 1942, and on October 10,1942, the Common Pleas Court made a journal entry reciting- that the jury having-rendered a verdict for .the contestant and no motion for new trial having been made, it was decreed by the court that the. writing produced purporting to be the last will of W. H. Ford is not Ms valid last will and testament.

Thereafter, on December 4, 1942, a motion, duly sworn to, was filed by defendant Charles C. Ford in the cause, asking that the court set aside the verdict of the jury rendered on 'October 6th, 1942, and the judgment of the court entered on the 10th day of October 1942, for the reasons that the verdict and judgment were procured by false testimony presented in the absence of the defendant Charles C. Ford when he was under the erroneous impression that it was unnecessary for him to appear and defend the action after having been served with summons; that the verdict of the jury and the judgment.of the court are contrary to the evidence ■and against the manifest weight thereof; that at the time of the execution of the will in question W. H. Ford was possessed of sufficient mind and intelligence to properly make and execute a last will and testament; that the defendant Charles C. Ford is a man of advanced years and infirm, and various persons advised him as to what to do when he was named party defendant in the action; that he was confused by the, entire proceedings and was under the erroneous impression that by reason of the fact his brother W. H. Ford had executed a deed to him for the real estate and had given him the other personal property it would be unnecessary for Mm to appear and contest the action; that there is irregularity in the service by publication; and that there is no lawful evidence to support the verdict and judgment of the court.

In his motion he averred that he was ready, able and willing to deposit in the office of the clerk of courts sufficient money to guarantee all costs in the case, costs of administration and reasonable attorney fees incurred by reason of his failure to answer in the action and defend the same.

With his motion he tendered his answer to the petition and asked leave that the same be filed and that a new trial be granted for the furtherance of justice. In the answer tendered by him, Charles 0. Ford admitted only the execution by W. H. Ford of his last will and testament as set forth in' the petition, and denied all allegations in the petition contained, not expressly admitted to be true.

On January 4, 1943, Charles C. Ford filed a motion, designated by him as an amendment to motion and supplemental motion, to set aside the verdict, vacate the judgment and for a new trial.

'In the amended and supplemental motion he asked that the verdict of the jury and the judgment of the court be set aside, and for a new trial in the cause, for the following reasons:

1. Such hearing, verdict and judgment by default were had before the cause regularly stood for trial pursuant to law.

2. There was a defect in the affidavit for service by publication in that it did not recite that service could not be had upon the defendant,- within the state of Ohio.

3. Such verdict and judgment were not sustained by the evidence and are contrary to law, there being insufficient evidence offered by plaintiff to overcome the presumption in favor of the will by reason of its admission to probate.

4. Because defendant had no notice of, the hearing through his counsel of record until the date of the hearing; the defendant is an old man living alone, has no means of conveyance and was unable to be present at the hearing and make an adequate defense thereto.

5. Because of other errors and irregularities apparent on the face of the record.

6. Because defendant filed this motion within the term and defendant has a full, complete and adequate defense to the action which is based upon testimony known by defendant and by plaintiffs to be false when presented.

On December 16, 1942, the defendant E. T. Ford filed a motion in the canse, duly sworn to by his attorney, to set aside the verdict of the jury and the judgment of the court entered in the case, for the following reasons :

1. Such judgment was rendered without other service on this defendant than by publication in a newspaper within the present term of court, and the defendant had no actual notice of the pendency of the action until after the judgment had been entered on the dockets of the court.

2. Such verdict and judgment were procured by false testimony presented in the absence of the defendant, and the verdict of the jury and judgment of the court are contrary to the evidence and against the manifest weight of the evidence.

3. Because of all other reasons apparent on the face of the record.

4. Because the defendant has- a good and adequate defense to the action.

With the motion he tendered answer to the petition, to the same general effect as the answer tendered by the defendant Charles C. Ford, and in his motion he further offered to secure all court costs and-pay all costs in the case to date, in event his application was well taken.

On January 4, 1943, the defendant E. T. Ford filed a motion, which he designated as amendment to motion and supplemental motion, to set aside the verdict, vacate the judgment, and for new trial, in which he states that he is the only living brother of Charles C. Ford who is a bachelor and has lived alone for a number of years; that Charles C. Ford has a poor memory, is aged and infirm, and that fie appears here as a friend of the court and- as next friend of Charles C. Ford to assist him in the defense of the within action; that this defendant E. T. Ford did not have notice of the . default judgment herein and the failure of Charles C. Ford to appear, until .after the entry of the verdict 0 and judgment; and that he requests the court for a separate hearing as to the competency of Charles C. Ford at the time of the proceedings against him, that the interests of Charles C. Ford be protected, and that it be determined whether Charles C. Ford was of sound mind and able.to properly defend himself at the time of the entry of the within judgment. This motion was duly sworn to by his attorney.

Summons on the.petition in case No. 31018 in the Common Pleas Court, being case No. 618 in this court, was duly issued for, and served upon, the defendant Charles C. Ford and Charles C. Ford, executor of the estate of W. H. Ford, deceased.

An affidavit for constructive service on the defendant E. T. Ford was duly filed in the cause, the affidavit being in the same general form as the affidavit for constructive service in case No. 3Í017 in the Common Pleas Court, being case No. 617 in this court.

Pursuant to the affidavit, advertisement for service ' by publication on E. T. Ford was duly published in the issue of the Greenville Daily Advocate of June 23, 1942, and mailed to E. T. Ford'at Red Key, Indiana.

Neither of the defendants Charles C. Ford and E. T. Ford filed a demurrer or answer to the petition, within rule, and such defendants being in default for answer or demurrer, the court assigned the cause for trial for October 6, 1942. Neither of the defendants had notice of such assignment and-neither appeared at the trial of the cause.

Such cause was tried by the court upon the same evidence introduced in case No. 31017, and the court, on the trial, found from the evidence, on the first cause of action pleaded in the petition, that on the 2nd day of July 1934 W. H. Ford executed a deed for the prehiises described in the petition to Charles C. Ford, that at such time W. H. Ford was incompetent, as alleged in the first cause of action in the petition, and that by reason thereof the deed should be set aside. The court rendered judgment on the first cause of action setting aside the deed.

On the second cause of action, the court found that the plaintiffs and the defendants Charles C. Ford and E. T. Ford were the owners of the real estate described in the petition, determined their respective interests therein, further found that there was sufficient personal property in the estate of W. H. Ford, deceased, to pay his indebtedness and that the plaintiffs are entitled to partition of the real estate as prayed for in the petition, and rendered judgment ordering partition of the premises.

On December 4, 1942, within1 term, the defendant Charles C. Ford filed his motion in the cause to vacate the judgment and the sale proceedings, and for new trial.

In his motion he avers that he is the owner of the premises and when the premises were conveyed to him by the deed he was under the impression and was advised by various persons that he had a fee simple title to the real estate and no matter what proceedings were brought against him the real estate could not be taken from him; that because of that erroneous impression he did not appear in answer to the summons issued against him in the case and did not have his day in court in the within cause; and tha,t the judgment in the cause is not based upon facts but based upon false testimony as to the incompetency of W. H. Ford, deceased, and the failure of any consideration passing for the conveyance.

In the motion, he further avers that in truth and in fact W. H. Ford, at the time of the conveyance, was not incompetent and was fully able to transact business.

In his motion, he further avers that he is now ready, able and willing to deposit in the office of the clerk of courts sufficient money to guarantee payment of all court costs’in the action on a rehearing, and to pay' all court costs incurred in his failure to answer within the time provided in the summons served upon him. He tendered with his motion his answer to the petition and asked leave that the same be filed and that a new trial be granted for the furtherance of justice.

The answer tendered amounts to a general denial of the allegations of the petition.

In his motion, he further avers that the judgment in partition in the cause was rendered without authority, before the expiration of a year from the death of the decedent and without proof that there was sufficient personal property to pay the debts of the estate of W. H. Ford, deceased; and that the judgment is irregular.- He asks that the judgment be set aside because of the various matters set forth in the motion and other errors apparent on the face of the record.

On the same date, to wit, December 4, 1942, the defendant E. T. Ford filed his motion in the cause, to vacate the judgment and sale proceedings, and for new trial.

' In his motion, he avers specifically various grounds for the setting aside of the judgment which grounds are averred generally in the motion to vacate filed by Charles C. Ford, and a further ground that the judgment should be set aside because it was entered without notice to him and without service upon him other than by publication in a newspaper, within the term of court in which the motion was filed.

In his motion he makes an offer for the payment of costs, similar to the offer made in the motion of Charles C. Ford, and tenders an answer similar to the answer tendered by Charles C. Ford.

On January 4, 1943, Charles C. Ford filed a motion in the cause designated as “Amendment to motion heretofore filed and supplemental motion to vacate judgment and sale proceedings.”

In that motion he sets forth certain additional grounds for the vacation of the judgment, as follows:

1. Because the judgment entry of October 8th was entered before the cause regularly stood for trial on the trial docket.

2. Because no notice of the assignment of the cause was given to his counsel of record, as provided for by rule of court.

3. Because no assignment was ever made of the cause prior to the date of the hearing of October 6 or 8, 1942.

4. Because of defect of parties defendant, there being an executor of the estate of Will Ford who was a necessary party defendant and was not named as party defendant or served with summons.

5. Because the court did not .have jurisdiction of all of the necessary parties to the action. •

8. Because the affidavit for service by publication was defective in not stating that the defendant could not be served with summons in the state of Ohio.

7. Because there was no evidence presented in the cause in support of the judgment as to failure of consideration, or that the grantor of the deed was incompetent, and no offer was made to tender back consideration paid by grantee known to plaintiffs.

8. Because the court lacked jurisdiction to render judgment on October 8th without evidence being submitted that all of the debts of the estate of WÜ1 Ford had been paid, or that there was sufficient personal property to pay such debts.

9. Because of all other.errors,and irregularities apparent on the face of the record.

On the same date, to wit, January 4, 1943, E. T. Ford filed a motion in the case, designated “Amendment to motion heretofore filed and supplemental motion to vacate judgment and sale proceedings.” In that motion E. T. Ford asserts the same grounds for the vacation of the judgment, as asserted by Charles C. Ford in his amendment to motion and supplemental motion, and an additional ground as follows:

“E. T. Ford, being the only brother and next friend of Charles C. Ford, says there is question regarding the competency and soundness of mind of Charles C. Ford at the time of the proceedings herein, and that this defendant, as a friend of the court, requests a full hearing with respect to same as a ground for vacating said judgment.”

As hereinbefore mentioned, all the various motions in both cases were heard and submitted together upon the same evidence and stipulations of counsel, which are embodied in a bill of exceptions filed in each case herein. All the motions were overruled by the court and the appeals in both cases are taken from the judgments of the court overruling the motions.

Insofar as the various motions made in both cases' by Charles C. Ford are concerned, we deem it sufficient to say, without discussing the grounds or reasons in detail, that it does not affirmatively appear of record that the trial court erred to the prejudice of Charles C. Ford in overruling the same.

The same holding is applicable to the various motions filed by E. T. Ford in both cases, except insofar as the ground is concerned which is mentioned specifically in his amendment to motion and supplemental motion filed in cause No. 31018 and set forth generally in his amendment to motion and supplemental motion filed in cause number 31017, for vacation of judgment because the affidavit for service by publication was defective in not stating that the defendant could not be served with summons in the state of Ohio.

“Substituted service and service by publication was unknown to the common law but depends upon statutory authorization, and the principle, of statutory construction that there must be strict compliance with enactments modifying the course of common law in regard to legal proceedings is exemplified in the cases involving the construction and applications of provisions authorizing substituted and constructive service. When, by the local law, substituted or constructive service is in certain situations substituted in the place of personal service when the latter is inconvenient or impossible, a strict and. literal compliance with the provisions of the law must be shown in order to support the judgment based on such substituted or constructive service. Jurisdiction is not to be assumed and exercised on the general ground that the subject matter of the suit is within the power of the court. The inquiry must be as to whether the requisites of the statute have been complied with, and such compliance must appear on the record. The fact that the defendant had actual knowledge of attempted service does not render the service effectual if in fact the' process was not served in accordance with the requirements of the statute.” 42 American Jurisprudence, 55, 56, Section 66.

The holdings of the courts of Ohio are in accord with the rule above mentioned. 32 Ohio Jurisprudence, 456, Section 67; Millis v. Millis, 17 N. P. (N. S.), 254, 25 0. D., 370; Morton v. Davesac, 20 Ohio App., 427, 431, 152 N. E., 679; Welch v. Farmers’ Loan & Trust Co., 165 F., 561, 562.

The statute providing for service by publication is Section 11293, General Code, which reads in part as follows:

“Before service by publication can be made, an affidavit must be filed that service of summons can not be made within this state on the defendant sought to be served, and that the ease is one of those mentioned in the next preceding section. ”

The affidavit for constructive service filed in each of the cases charges that the defendant E. T. Ford resides at Red Key, Indiana, “and that by reason thereof, service of summons cannot be made upon him.” The mere fact that the defendant resided in Indiana would not preclude service being made upon him in Ohio, as the statutes of Ohio permit service of summons on a nonresident defendant within the state and it is a matter of common knowledge that services of summons on nonresident defendants are frequently made within the state. Consequently the recital mentioned is not equivalent to an averment that service of summons cannot be made within this state on the defendant sought to be served, as required by statute.

As the provisions of the statute were not complied with, the service by publication attempted to be made was, under the authorities mentioned, void and the court did not acquire jurisdiction over the defendant E. T. Ford. 31' American Jurisprudence, 301, 302, 303, Sections 764, 765, 766, and cases cited in note 7 to Section 765 and note 18 to Section 766.

In both the cases, the defendant E. T. Ford tendered meritorious defenses by way of answers amounting to general denials. The tender of such a defense is necessary in the ordinary proceeding to vacate a judgrnent, but in cases, such as the instant cases, where the ground for vacation is that the court rendering the judgment sought to be vacated was without jurisdiction of the defendant by reason of failure-to comply with the requirements of law as to service of process, such tender is unnecessary. Heffner v. Gunz, 29 Minn., 108, 12 N. W., 342; Savings Bank of St. Paul v. Arthur, 52 Minn., 98, 53 N. W., 812.

For the reasons mentioned, the defendant E. T. Ford was entitled to have the judgment in each of the cases vacated on the ground mentioned.

In the case of Bradford v. Andrews, 20 Ohio St., 208, 219, 5 Am. Rep., 645, the Supreme Court held that - the interest of the parties in a will contest is joint and inseparable; that such contest is substantially a proceeding in rem and the court cannot take jurisdiction of the subject matter by fractions; and that the will is indivisible and the verdict of the jury either establishes it as a whole or wholly sets it aside.

In the light of that holding it is obvious that the vacation of the judgment in the will contest case as to the defendant E. T. Ford will have the effect of vacating it as to all the parties and the cause will stand in the same manner as if - no judgment had been rendered, with the right of any person interested, including the defendant Charles C. Ford, to plead and prosecute or plead and defend accordingly.

The action to set aside the deed upon the ground of the mental incapacity of the grantor has the same characteristics as the action to set aside the will, so that the same rules are applicable in that case to the rights of the parties upon the vacation of the judgment on the motion of the defendant E. T. Ford.

The plaintiffs, appellees herein, however, contend that the defendant E. T. Ford has not been aggrieved by the final orders of the Common Pleas Court overruling Ms motions to vacate the judgments in the will contest case and in the action to set aside the deed, for the reason that under the provisions of the will he receives only one dollar and under the provisions of the deed nothing, whereas under the judgments setting the will and deed-aside he will receive a much greater amount.

In support of that contention the plaintiffs cite the case of Ohio Contract Carriers Assn., Inc., v. Public Utilities Commission, 140 Ohio St., 160, 42 N. E. (2d), 758, in which it was held that appeal lies only on behalf of a party aggrieved by the final order appealed from, and that appeals are not allowed for the purpose of settling abstract questions but are allowed only to correct errors injuriously affecting the appellant.

The statement of facts' in the above-cited case discloses that the appeal in question was taken from an order of the Public Utilities Commission relating to the fixing of a Toledo metropolitan zone for the operation of service by regular and irregular route motor transportation companies certificated to transport property.

It further discloses that the appellant in that case was an Ohio corporation not for profit, whose membership was composed of approximately ten per cent of the contract carriers by motor vehicle operating under permits issued by the Public Utilities Commission of Ohio; and that appellant did not hold any permit from the commission nor does it appear that it was an owner of any stock or interest in any permit holder and it did not claim to represent any specific permit holder.

In the opinion it is stated: ‘ ‘ The record discloses no interest of any kind of appellant which is or could bo affected by the commission’s order.”

Prom the statement of facts and the quoted portion of the opinion in that case it appears that the appellant was not an interested, necessary or proper party to the original proceeding and consequently could not he aggrieved in any way by the order made therein, thus the facts in that case differ from the facts in the two cases under consideration in which the defendant, appellant herein, E. T. Ford not only has a present interest in the subject matters of the litigation but is a necessary and proper party.

The defendant E. T. Ford being an interested, necessary and proper party to both cases, having a present interest in the subject matter of the litigations, our nest inquiry must be directed to the question as to whether he was, as a matter of law, “aggrieved” by the judgments overruling his motions to vacate the judgments rendered in the causes.

“A party is aggrieved if he would have had the thing if the erroneous judgment had not been given. Or, as it is sometimes put, in a legal sense a party is aggrieved by a judgment or decree whenever it operates on his rights of property or bears directly upon his interest.” 2 American Jurisprudence, 945, Section 152.

Whether the defendant E. T. Ford, would be benefited pecuniarily by the relief that might be afforded him on his appeals is not a proper test for determining whether he was “aggrieved” by the judgments overruling his motions to vacate, ■ but the true test is whether his legal rights were invaded by the orders overruling such motions.

Defendant E. T. Ford had the legal right, as a beneficiary under the will, to defend the action to set aside the will and, upon the failure of plaintiffs to procure proper service of process upon him, had the further legal right to move for the vacation of the judgment • setting the will aside. He also had the legal right to defend the action to set aside the deed and, upon failure of plaintiffs to procure proper service of process upon him, had the further legal right to move for the vacation thereof. These legal rights were invaded' by the orders of the court overruling his motions to vacate and he is, as a matter of law, aggrieved by the orders and consequently has the right to appeal therefrom.

For the reasons mentioned, we find that the Common Pleas Court did not err in its orders overruling the motions of the defendant Charles C. Ford to vacate the judgments in question, and the orders overruling the motions will therefore, insofar as the defendant Charles C. Ford is concerned, be affirmed at his costs; but we further find that the Common Pleas Court erred in its orders overruling the motions of the defendant E. T. Ford to vacate the judgments in each of the causes in that the orders are contrary to law, and for these errors the orders will be reversed, and this court, rendering the judgments the Common Pleas Court should have rendered, will enter final judgments vacating the orders in question in each case on the motion of the defendant E. T. Ford, at the costs of the appellees, and both such causes will be remanded for further proceedings according to law in accordance with this opinion.

Judgments accordingly. ■

Hornbeck, P. J., and Geiger, J., concur.

(Decided February 27, 1945.)

On Applications for rehearing.

By the Court.

These causes are submitted to the court on the applications of plaintiffs, appellees herein, in both of the causes for a rehearing of the causes. The applications are based upon the following grounds:

1. If the judgments against E. T. Ford are void because of defective service, as heretofore found by this court, then E. T. Ford, by subsequent actions, has waived the question of want of jurisdiction over his person and has entered his appearance in these cases, and cannot now be heard to complain because of the judgments:

2. E. T. Ford entered his appearance in both of the cases by filing a motion before the judgments were rendered and, therefore, was properly before the court when the judgments were rendered.

3. The holding of the Court of Appeals is contrary to Section 11364, General Code, and the decisions anil ounced thereunder.

These grounds will be considered in the order mentioned.

I.- The various motions filed by E. T. Ford were filed after the entry of judgment in each of the cases, and after the period in which motions for new trial might be filed had expired.

The motions were filed during term, to vacate the judgments upon the grounds, among others, that service upon E. T. Ford was defective, > that is, that by reason of the affidavit for service by publication being defective, the court did not have jurisdiction' of his person.

The motions were predicated upon the common law and not upon statutory provisions.

The appeals taken by E. T. Ford were from the orders overruling the motions to vacate the judgments, and not from the original judgments in the cases.

- Although the notices of appeal given by E.,T. Ford designate the appeals as upon questions of law and fact, and bond for appeal was given in each case, the nature of the proceedings in which the orders appealed from were, made was such that appeals on questions of law and fact did not lie and the appeals constituted appeals on questions of law only and were so perfected and submitted.

If E. T. Ford had based his rights to have such judgments vacated, upon irregularities or errors in the judgments alone, the motioris themselves would have constituted such appearances as would have had the effect of waiving the questions of jurisdiction, but as he based his rights to relief on the additional ground of want of jurisdiction, the motions did not constitute such appearances as would have the effect of waiving the question of the jurisdiction of the court to render such judgments at the time the judgments were rendered. Marsden v. Soper, 11 Ohio St., 503.

However, such motions, being based on irregularities and errors in the judgments, in addition to alleged want of jurisdiction, did constitute non-retroactive entries of appearances of E. T. Ford as a party defendant in the causes, and although such non-retroactive entries of appearance did not have the effect of remedying the want of jurisdiction in the court at the .time the judgments were rendered they did have the effect of conferring jurisdiction of the person of E. T. Ford upon the court in all subsequent proceedings in tlm causes.

Although appeals from the original judgments would have constituted general entries of appearance in the actions, the appeals from the orders overruling the motions to vacate constituted simply entries of appearance insofar as such orders were concerned.

For the reasons mentioned, the filing of the motions and notices of appeal and the giving of appeal bonds by E. T. Ford did not constitute such entries of appearance by him in the actions as would preclude him from the relief by way of vacation of judgments afforded him on his appeals from the judgments overruling the motions.

2. Insofar as plaintiffs’ contention that the appearance of E. T. Ford was entered by Goubeaux & Goubeaux, attorneys, moving for an order “on behalf of Charles C. Ford, et al., defendants,” requiring plaintiffs to deposit court costs, is concerned, the evidence tends to prove, and it was conceded by counsel on the submission of the case, that Goubeaux & Goubeaux did not represent E. T. Ford in the actions.

3. As the court did not have jurisdiction of the person of the defendant E. T. Ford, his substantial rights were affected by the rendition of the judgments against him and his substantial rights being affected thereby the error in the rendition of the judgments does not come within the classes of errors or defects referred to in Section 11364, General Code.

For the reasons mentioned, the applications for rehearing in both the above captioned cases are denied.

Applications denied.

Hornbeck, P. J., Geiger and Guernsey, JJ., concur.

Guernsey, J., of the Third Appellate District, sit-' ting by designation in the Second Appellate District.


source: Caselaw Access Project

author: Millee, J.

license: Public Domain

text:
    Bulen, Appellant, v. Moody et al., Appellees.

      (No. 3766
    Decided October 16, 1945.)

      Mr. Allen 1. Pretsman, for appellant.

      Messrs. Cowan & Adams, for appellees Moody and Armentrout.

      Mr. Harley E. Peters, city solicitor, for appellee city of Bexley.
   Millee, J.

This is an appeal on questions of law and fact from a judgment of the Common Pleas Court of Franklin county, Ohio. The action is one for the purpose of obtaining a declaration of the rights and other legal relations between the plaintiff, appellant herein, and the defendants, appellees herein.

The city of Bexley, one of the defendants herein, is merely a nominal party and for purposes of the issues in this case is not involved.

The plaintiff, Florence Btden, on August 19, 1941, purchased lot 9 of Wells’ Heirs Subdivision in the city of Bexley. The lot has a frontage on East Main street and extends in depth in a northerly direction of approximately 450 feet. The lot is 90 feet wide and has a narrow alley running along the west line thereof for the depth of this lot. This alley is 11.79 feet in width and at the rear of the property of the defendant, Anna S. Armentrout, a garage is maintained, the east wall and eves of which encroach upon this alley. At the time the plaintiff purchased this- property there was another alley duly dedicated to the public use and running in an easterly and westerly direction, the western terminus of this alley being on Parkview avenue, and the eastern terminus of this alley formed an intersection with the north and south alley, paralleling the west line of plaintiff’s lot. This east and west alley was a duly dedicated alley in the city of Bexley and had been so from tlie time the addition had been laid out.

The defendants Moody and Armentrout own all the land on the north and south sides of the vacated portion of this alley. The petition alleges and the testimony discloses that the plaintiff purchased her property at the time this east and west alley was fully dedicated and open to public use, that the defendants Moody and Armentrout procured a vacation of such east and west alley by petition to the city council of Bexley, and that the same was closed off and ingress and egress was denied both to the plaintiff and all other persons.

The plaintiff alleges further and the record discloses that a portion of her lot was zoned for business and that she had used and intended to use the vacated alley. She alleges that a written demand was' made upon the defendants Moody and Armentrout to keep open and unobstructed the vacated alley, which request was refused. The plaintiff claims also that the denial of the easement for ingress and egress has caused and will continue to cause injury to her property rights.

The pertinent parts of the answer of defendants Moody and Armentrout denied that the plaintiff was an abutting property owner on the alley so vacated and also put in issue the right of the plaintiff to ingress and egress over such property:

The plaintiff is making two contentions. The first is that the plaintiff is an abutting property owner, and secondly, that even though the plaintiff may not be regarded as an abutting property owner, she has a right to have this alley maintained since it forms the only practical ingress and egress to the rear part of her lot, unless a portion of her property be devoted to such ingress and egress from Main street.

As to the first proposition submitted, it is our conclusion that the plaintiff is not an abutting property owner on the vacated part of the east and west alley involved herein. The ordinance vacated the east and west alley up to the west line of the north and south alley. There is no physical connection between the plaintiff’s property and the portion of the alley vacated; thus the plaintiff’s property does not abut upon the vacated portion of the east and west alley. “Abutting” is a word of common usage. The lexicographers define it to mean “to end”; “to border on”; “to touch.” “Abutting” means any property that abuts or adjoins.

No notice to the plaintiff of the vacation of such part of the alley was necessary. Section 3727, General Code, provides:

“Notice of the intention of council to vacate any street, alley, avenue, or part thereof, shall, in all cases, be given as provided in the next section, except when there is filed with council written consent to such vacation by the owners of the property abutting the part of the street or alley proposed to be vacated, in which case such notice shall not be required.”

The petition of the plaintiff and agreed statement of facts, together with exhibits, show that defendants Moody and Armentrout were the only property owners who abutted upon the vacated part of the alley on the north and on the south. At’ the eastern end of this vacated alley the north and south alley running parallel to the plaintiff’s property prevented the vacated alley from abutting on the plaintiff’s property. Thus under the above statute no notice to the plaintiff was necessary.

The plaintiff in order to maintain her contention has cited Cohen v. City of Cleveland, 43 Ohio St., 190, 1 N. E., 589. The facts in that ease, we find, are in no way similar to those in the case at bar. The facts in that case disclose that a viaduct, 64 feet wide, with a level roadway, was constructed in the city of Cleveland across the Cuyahoga river. On the south side of Superior street, between Water street and the river, a distance of 768 feet, the city condemned a strip of ground, and the viaduct was constructed over that strip and over á part of Superior 'street, about 37 feet being over the strip opposite Cohen’s premises, and the balance over the street, so that in effect Superior street, which was 93 feet wide, was reduced in width between Water street and the river, and opposite Cohen’s premises its present width is 66 feet. The elevation of the roadway of the viaduct above Superior street gradually increases from Water street to the river, and opposite the premises of Cohen, which are on the north side of Superior street, midway between Water street and the river, the elevation is 45 feet, and it was alleged that the viaduct diverted travel from that part of Superior street, impaired the light and air to Cohen’s premises, caused noise, and had impaired the value of his property. The pertinent question was whether Cohen’s property abutted upon the proposed improvement, and the court held that Cohen was not the owner of a lot “bounding or abutting upon "the proposed improvement,” within the meaning of :a certain section of the municipal code, and hence it was not necessary for him to file a claim for damages under that section.

The plaintiff relies further upon the case of Messinger v. City of Cincinnati, 36 Ohio App., 337, 173 N. E., 260. The facts there disclose that Teakwood avenue ran in an easterly and westerly direction and the street had its eastern terminus at the corporation line of the city. Plaintiffs’ property adjoins the east end of the street and the west line of plaintiffs’ property was at the corporation line. The two property owners on the north and south side of Teakwood avenue gave their written consent to the vacation of 15 feet off the east end of Teakwood avenue. Council passed a vacation ordinance without notice to the plaintiffs on the ground that the plaintiffs were not abutting owners. The court found: “We think the weight of authority and the better reasoning is that property abutting the end of a street sought to be vacated is abutting property, requiring publication where the consent of the owner is not filed. ’ ’ In that case, however, the end of the vacated street touched the lot line.of the plaintiffs” property. There was no alley intervening as in the case at bar, which we think distinguishes these two cases.

Coming now to the second proposition, the plaintiff contends that the closing up of this alley has brought about an injury to her property which is different in kind than the injury which the traveling or general public would suffer by the vacation of such an alley. The obstruction of a vacated alley may be enjoined although the owner of the property in question may have access thereto over the street upon which it fronts; Oliver Schlemmer Co. v. Steinman-Meyer Furniture Co., 7 C. C. (N. S.), 468, 18 C. D., 474, but a property owner on a street or alley, a portion of which other than the part on which his property abuts is vacated, has no right to enjoin the obstruction of the vacated portion by the owners to whom it reverted when he has reasonable access to his property by other streets and alleys although the distance he may have to travel in some directions may be greater than before the vacation. To entitle a party to any relief in such cases the inconvenience he suffers must be different in kind from that of the general public and not only in degree. Kinnear Mfg. Co. v. Beatty, 65 Ohio St., 264, 62 N. E., 341, 87 Am. St. Rep., 600. We quote the following from paragraph one of the syllabus of the Beatty case:

“Where a street or alley is vacated by a city, the vacated portion reverts to the abutting lot owners, subject, however, to.such rights as other property owners on the street or alley may have therein, as a necessary means,of access to their property.”

Again, we quote the following from paragraph four of the syllabus of the Beatty case, which refers to Section 2654, Revised Statutes (now Section 3729, General Code). The statute “simply preserves such rights as the lot owner had in the street or alley by existing law. It creates no new rights.”

Again, at page 284“iof the opinion in the" Beatty case the court says:

“In all the cases in this state, where an owner of land is recognized as having such a property interest in a road or street, as entitles him to an action for damages, or to restrain its obstruction, relate to the cases where there was a direct physical connection between the portion of the street interfered with and the land of the complainant; or the part vacated, furnished the only means of access to his property.”

In the ease under consideration there was no direct physical connection between the plaintiff’s land and the portion of the alley vacated. The evidence showed that there was a driveway from Main street north along the east side of plaintiff’s lot. The plaintiff has acgess to her lot along the entire 90 feet frontage on Main street; also, the north and south alley is open and furnishes access to the plaintiff’s lot along the entire west side thereof. Thus the plaintiff has access to her lot from three sides, which we deem is a reasonable access, and the trial court found likewise.

One of the contentions of the plaintiff is that this north and south .alley, being 11.79 feet in width, is too narrow to be of any practical value. Section 7248-2, General Code, fixes the maximum width of vehicles using the highway at eight feet. This being true, we find that this alley is of sufficient width to accommodate traffic of all kinds.

The trial court has written a lengthy and most able opinion which we think contains a correct statement of all the law and facts involved in this. case. Our finding and judgment is the same as in the trial court, to wit, that the plaintiff is a nonabutting property owner on the alley vacated, not entitled to notice of the vacation, and not entitled to a permanent easement affording ingress and egress over such vacated alley to her property’ for the benefit of herself, and her successors in title; that she has other reasonable means of access to her property and that her damages. differ only in degree and not in kind from the general public; and that her legal status falls within the category of damnum absque injuria.

Judgment accordingly.

Hornbeck, P. J., and Montgomery, J., concur.

Montgomery, J., of the Fifth Appellate District, sitting by designation in the Second Appellate District.


author: By the Court.

text:
    Opperman, Appellant, v. Opperman, Appellee.
    (No. 474
    Decided July 3, 1945.)

      Messrs. Price £ Price, for appellant.
    No appearance for appellee.
   By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Hancock county, Ohio, in an action therein wherein the appellant, Josephine Opperman, was plaintiff and the appellee, Merle E. Opperman, was defendant. •

The action is one for divorce, custody of the minor child of the parties, reasonable support for the child, and such other relief as is proper.

The defendant having failed to file an answer ór other pleading to the petition, the cause was submitted to the court upon the petition of the plaintiff and the evidence.

There is no bill of exceptions of the hearing in the Common Pleas Court and the only record before this court on this appeal consists of a certified transcript of the docket and journal entries, the pleadings and original papers in the case.

The judgment from which this appeal is taken, caption and signature of the trial judge omitted, is in the words and figures following:

“This cause came on to be heard upon its merits on January 8, 1944, and was informally decided by the court.

“And now on this 5th. day of December, 1944, the court find that the defendant has been duly served with summons and a copy of the petition herein filed, and has failed to appear and the court find him in default for answer or demurrer to said petition, and find that the allegations thereof are confessed by him to be true.

‘ ‘ The court further find that the defendant is a member of the armed forces of the United States, and that he has waived his rights herein under the Soldiers’ and Sailors’ Relief Act by written waiver filed herein.

“The court also find that the plaintiff at the time of filing her petition had been a resident of the state" of Ohio for one year next preceding the same and had been a bona fide resident of this county for more than thirty days immediately preceding the same and that the parties hereto were married as in said petition set forth.

“The court further find that one child, namely, ¿Terry Lee Opperman, aged seven years, has been born to such marriage.

“The court further find that the defendant'left plaintiff without just cause more than two years prior to the trial herein and during said period failed to provide the plaintiff either with money or necessities and that the plaintiff was compelled to find employment to provide the necessities of life for herself and said child.

“The court further find that the plaintiff and defendant have not lived together since said separation above referred to and that the defendant has been guilty of gross neglect of duty toward the plaintiff which, excepting as hereinafter set forth, would entitle plaintiff to a divorce as prayed for.

“The court further find that plaintiff’s general reputation in the community is good and that excepting as hereinafter set forth she is a proper and good mother and is qualified to have the custody of said minor child.

‘ ‘ The court further find from the evidence, from the admissions of plaintiff and from its own knowledge that the plaintiff since, the time of her separation from the defendant has been keeping steady company with one Lawrence N. Musgrave, who himself secured a divorce in this court in case No. 27042 while he was so keeping «ompany with plaintiff and that said association-between the plaintiff and said Lawrence N. Mus-grave has continued up to the time of the trial of this case.

“Wherefore the court find that the plaintiff, by reason of said irregular associations, has been guilty of such conduct as to bar her from invoking the assistance of this court and that said divorce ought to be and it hereby is refused, to which ruling of the court the plaintiff excepts.” •

Plaintiff assigns error in the following particulars:

1. The judgment of the trial court is contrary to law. 2. The judgment of the trial court is not sustained by the evidence as shown in the journal entry of findings by the trial court and is manifestly against the weight of the evidence.

3. The trial court erred in refusing to grant the plaintiff a divorce.

4. The trial court erred in taking judicial notice of another divorce case between different parties in the same court.

5. The court erred in taking into consideration matters from its own knowledge, as shown by the journal entry, which said matters were not in the evidence.

I31 the absence of a bill of exceptions this court cannot review the weight of the evidence, therefore, that portion of assignment of error No. 2, to the effect that the judgment is manifestly against the weight of the evidence, will not be considered by this court.

Without consideration of that part of assignment. No. 2 above referred to, assignments Nos. 1, 2 and 3 present the question as to whether the trial court, upon the record before this court, and particularly the journal entry of judgment, erred in not granting a divorce to the plaintiff, so our consideration of these three assignments will be limited to this question.

Assignments 4 and 5 will be considered after discussion of this question. ¡ *

It will be noted that the trial court in its judgment specifically found all the facts in favor of the plaintiff, essential to entitle her to a divorce from the defendant and to the custody of the minor child of the parties ; and that the court’s refusal to grant her a divorce and the custody of the child was predicated solely upon its finding from “the evidence, from the admissions of plaintiff and from its own knowledge that the plaintiff since the time of her separation from the defendant had been keeping steady company with one Lawrence N. Musgrave, who himself secured a divorce in this [Common Pleas] court in case No. 27042 while he was so keeping company with plaintiff and that said association-between the plaintiff and said Lawrence N. Musgrave has continued up to the time of the trial of this case.”

In doing this the court apparently relied upon the rule set forth in several of the earlier cases, that an action for divorce invokes the equitable jurisdiction of the court to an extent which renders applicable the rule that a plaintiff may be denied relief where he does not come into court with clean hands. Dunbar v. Dunbar, Wright, 286; Mattox v. Mattox, 2 Ohio, 233, 15 Am. Dec., 547.

The question as to whether the courts of this state have any equitable jurisdiction in actions for divorce and alimony was under consideration in a later case, namely, DeWitt v. DeWitt, 67 Ohio St., 340, 66 N. E., 136, in which the. above-mentioned cases were in effect overruled, although the court indicated that such cases were correctly decided under the statute notwithstanding the court had no jurisdiction in chancery. In that case it was held:

(a) Insofar as any common-law rules respecting divorce and alimony are derived from the English, we inherited those administered in the ecclesiastical courts, for,: outside of Parliament, no other tribunal had or assumed cognizance of such controversies. Such power did not, in England, belong to a court of equity. The ecclesiastical court was a canonical court and never deviated from the canon law.

(b) The courts of Ohio do not have general equity jurisdiction in suits for alimony, but the jurisdiction is such and such only as is given by statute.

(c) A court in alimony cases does not exercise general equity powers, but is controlled by the statute and is authorized to exercise such power as that expressly given, and such as is necessary to make effective its orders and decrees.

Notwithstanding the decision in that case, which has never been overruled, some courts have persisted in the view that courts have equitable jurisdiction in divorce and alimony cases to the extent mentioned above. Other courts have applied a similar, although more limited, canonical rule of the ecclesiastical courts known as the doctrine of .recrimination or compensaf/io criminis to the effect that if the conduct of both parties has been such as to furnish grounds for divorce neither of the parties is entitled to relief. Phillips v. Phillips, 48 Ohio App., 322, 193 N. E., 657; 27 Corpus Juris Secundum, 623, Section 67.

In the Phillips case and in cases in other states it is held that such doctrine rests on the equitable maxim that he who comes into equity must come with clean hands, and on a concept that he who seeks redress for the violation of a contract resting on mutual and dependent covenants must himself have performed the obligations on his part. 27 Corpus Juris Secundum, 624, Section 67. See, also, 17 American Jurisprudence, 267, 268, Sections 233 and 234.

The doctrine of recrimination is recognized as a defense which must be pleaded in order to be available. 14 Ohio Jurisprudence, 403, Section 23. :

As, in this state, the Common Pleas Court in divorce and alimony cases is a court of special and limited jurisdiction having no general jurisdiction in equity, and the statutes relating to divorce and alimony do not expressly confer any jurisdiction to enforce the equitable rule as to “clean hands” or the similar canonical doctrine of recrimination, it would seem that so far as this state is concerned the enforcement of such doctrine by the courts of this state rationally rests on the concept that he who seeks redress for the violation of contract resting on mutual and dependent covenants must himself have performed the obligation on his part, rather than on the equitable maxim of “clean hands.”

But be that as^ it may, the rule is firmly established by the decisions of the courts of this state that if the conduct of both parties to a divorce action has been such as to furnish grounds for divorce neither of the parties is entitled to relief.

.The rule, it will be noted, is not applicable to conduct of the parties not constituting grounds for - divorce under the statutes of this state.

Assuming, without deciding, that the court could apply such rule without the facts on which it is based being pleaded as a defense by the defendant, we shall consider whether the application of such rule warranted the court in refusing a divorce to the'plaintiff and refusing to award the custody of the minor child of the parties to the plaintiff for the reason assigned in the journal entry of judgment.

A careful reading of the findings of the court upon which it bases its refusal to grant plaintiff a divorce and award her the custody of the child fails to show that the plaintiff has in any way conducted herself in such a manner as would constitute any ground for divorce by the defendant from her, although her conduct may have been reprehensible from the standpoint of the ethics of the trial court.

As the plaintiff has not committed any acts which would entitle the defendant to a divorce from her, she, on the findings of the trial court in its journal entry, is entitled to a divorce from the defendant and the custody of the minor child of the parties, and the court , erred in denying her such relief and its judgment in this respect is contrary to law.

There are no findings of the trial court concerning or relating to the support of the minor child prayed for in her petition, so this court has no basis upon which to enter final judgment as to the support of the child.

If the plaintiff will, in a writing- filed herein within ten days from the announcement of this decision, waive any right she may have to an adjudication in this action as to the support of the minor child, this court will, for the error above mentioned, reverse the judgment of the Common Pleas Court refusing to grant plaintiff a divorce and award her the custody of the minor child, and will render the judgment, the trial; court should have rendered, granting plaintiff a divorce and awarding her the custody of the minor child, at the costs of the defendant, and remand the case to the Common Pleas Court for execution and for the exercise of its continuing jurisdiction with reference to the custody of the minor child of the parties. Otherwise, this court will reverse the judgment for the errors above and hereinafter mentioned and remand the cause to the Common Pleas Court for a new trial and further proceedings according to law, at costs of defendant. • •

4. Under this assignment the plaintiff contends that the trial court erred in taking judicial notice' of another divorce case between different parties in the same court.

The findings of the court in its judgment show that it did take judicial notice of a former divorce proceeding in the same court. This assignment is well taken and would require reversal of the judgment. Paragraph tliremof the syllabus in Wainscott v. Young, 74 Ohio App., 463, 59 N. E. (2d), 609.

5. The fifth assignment is that the court erred in taking into consideration matters from its own knowledge, as shown by the journal entry of judgment. This, assignment is well taken and would require reversal of the judgment. 17 Ohio Jurisprudence, 41, 42, Sections 15 and 16.

Judgment accordingly.

Middleton, P. J., Jackson and- Guernsey, JJ., concur.


author: Guernsey, P. J.

text:
    Terry et al., Appellants, v. Claypool et al., Appellees.
    (No. 471
    Decided January 11, 1945.)

      Messrs. Beits & Betts, for appellants.

      Mr. Fred L. Eberhart, for appellees.
   Guernsey, P. J.

This is an appeal on questions of law and fact from a judgment of the Common Pleas Court of Hancock county, Ohio, in an action therein numbered 27106, wherein O. G. Terry, Fred R. Hover and R. N. Larrimer, the appellants herein, were plaintiffs, and P. E. Claypool and Olive J. Claypool, the appellees herein, were defendants, and the cause is submitted and tried de novo in this court.

The action is one in the nature of a creditor’s bill to subject certain real and personal property of the defendants P. E. Claypool and Olive J. Claypool to the satisfaction of a judgment in the sum of $1,200 recovered by the plaintiffs against the defendant P. E. Clay-pool in cause No. 26998 in the Common Pleas Court of Hancock county.

. To the petition of the plaintiffs the defendants filed separate answers in which they deny generally the allegations of the petition.

The cause was tried by the Common Pleas Court of that county, and upon trial thereof the Common Pleas -Court entered judgment as follows:

“This cause came on for hearing upon the merits this 1st day of May, 1944, and was argued by counsel for both the plaintiffs and defendants, the court also having before it the records and pleadings in causes numbers 27104 and 26998.

“Upon motion of the attorney for the defendants this cause is hereby dismissed at the costs of the plaintiffs for the reason that the plaintiffs do not have any valid and existing judgment in Cause No. 26998. Ex-, ceptions saved.”

That is the judgment from which this appeal is taken.

The cause was submitted to this court upon the pleadings, record and original papers in this cause and upon the evidence consisting of transcripts of the docket and journal entries in causes Nos. 26998 and 27104 in the Common Pleas Court of Hancock county, and the testimony of certain witnesses as to the entry of appearance of the plaintiffs as defendants in cause No. 27104.

The evidence in this court discloses:

That on August 24, 1942, the plaintiffs recovered judgment against the defendant P. E. Claypool in cause No. 26998 in the Common Pleas Court of Hancock county, for the sum of $1,200 with interest at six per cent from June 3, 1942, for legal services rendered by the plaintiffs to the defendant P. E. Claypool, and • that on December 31, 1942, P. E. Claypool filed an action in the Common Pleas Court of Hancock county against the plaintiffs who are designated as defendants therein, to vacate the judgment in cause.No. 26998, which action is designated as cause No. .27104 in that court.

The petition in cause No. 27104, omitting the caption and oath, is as follows:

“Now comes the plaintiff herein and says that the defendants, O. G. Terry, Fred R. Hover and R. N. Larrimer did on August 19th, 1942, obtain a default judgment against this plaintiff, in the Common Pleas Court of Hancock county, Ohio, in case No. 26998, and entitled O. G. Terry, Fred R. Hover and R. N. Larrimer v. P. E. Claypool. Said default judgment was in the amount of twelve hundred ($1,200) dollars for alleged attorney fees.

“Plaintiff herein says that said judgment was rendered against his will and against his knowledge at the time. Said plaintiff herein was in that case relying upon the legal services of an attorney to have the case set for hearing upon its merits and tried upon its merits. But on the contrary, the case was never tried and a default judgment was obtained in the case. While all that time, this plaintiff says that he had a full and complete defense to said case. Plaintiff herein says that at the time of rendering said judgment and at the present time plaintiff is not indebted to any one of the defendants named herein.

“Since the rendering of said judgment against the plaintiff herein, said plaintiff herein has discharged from his employment the attorney that was to have represented him in said case and has now employed new counsel. This petition is now being filed not later than the second term after the rendering of said default judgment and within one year after said default judgment.

“This petition is now being filed for the following reasons:

“1. A new trial is being asked for by virtue of General Code 11631, sub-section 1.

“2. A new trial is being asked for because of the irregularity in the obtaining of said judgment and because of failure of the plaintiff’s former attorney to try said former case upon its merits. This by virtue of General Code 11631, sub-section 3.

“3. This petition is being filed because of unavoidable misfortune preventing the plaintiff herein from' defending himself in said former case. This by virtue of General Code 11631, sub-section 7.

“Wherefore plaintiff prays that said judgment may be vacated and that he be permitted to make his defense thereto, and that in the meantime said defendants be enjoined from proceeding to enforce said judgment, and for such further relief as is equitable and proper.”

“Fred L. Eberhart,

“Attorney for plaintiff.”

That on December 31, 1.942, P. E. Claypool, by his attorney, moved the court in cause No. 27104 for an order vacating the judgment in cause No. 26998, for an order suspending further proceedings on the judgment until a new trial had been had, and for a further order granting new trial in the cause upon the merits.

That precipe for summons was not filed in cause No. 27104 until January 11, 1943, and that service of summons was not made on the defendant Fred R. Hover until January 12,1943, and was not made upon the defendants O. G. Terry and R. N. Larrimer until January 14, 1943.

The judge’s trial docket shows the following entries :

“Case No. 27104

Case'filed' 12/31/42.

“Names of Parties. Attorneys.

“P. E. Claypool, Plaintiff Fred L. Eberhart.

vs.

“0. G-. Terry, et al., Defendants

“Date of Orders of Court Journal

Orders. Vol. Page.

“1-2-43 Continued 85 309

“1-8-43 Hearing had upon plaintiff’s petition and motion to vacate judgment in case No. 26998 and said judgment vacated conditionally, and it appearing that said conditions have been complied with, and that the defendant has filed an answer setting forth a good defense it is ordered that said judgment in said cause No. 26998 be and the same hereby is set aside and vacated, and defendants are enjoined from proceeding to collect same. Plaintiff enjoined from disposing of the remainder of the original fund remaining in his hands pending the outcome of said proceedings in cause No. 26998. See entry. Filed 1-8-43. 85 320

“ 4- 3-43 Continued 85 449

“ 9-11-43 ” 86 120

“12-31-43 ” 86 291

“ 4- 1-44 ” 86 460

“ 9- 9-44 ” 87 145”

On the same date, to wit, January 8, 1943, an entry based on the order appearing on the judge’s trial docket, under date of January 8, 1943, was made on the journal of the court in cause No. 27104, which, omitting the caption, is as follows:

“This matter came on for hearing upon the petition to vacate the judgment heretofore rendered in this court in case No. 26998, wherein the said O. G. Terry, Fred R. Hover and R. N. Larrixner were plaintiffs and the said P. E. Claypool the defendant, and the evidence, the court took the matter under advisement with the following instructions to P. E. Claypool:

“1. That thirty-five ($35) dollars be deposited in case No. 26998 to pay part of the court costs in that case, and

“2. That P. E. Claypool file in case No. 26998 a report as best he can of what disposition was made of the' money he received in a lump sum amount from the Industrial Commission of Ohio.

“3. That P. E. Claypool tender a proposed answer.

“After P. E. Claypool having complied with the three named conditions, the court hereby finds that P. E. Claypool had a default judgment rendered against him and did not have a fair opportunity to bring a defense thereto and the court further finds that P. E. Claypool claims to have a valid defense in said case and that the plaintiff herein, by reason thereof is entitled to have the judgment in said case vacated.

“Therefore it is hereby ordered that the judgment in the case above named be and it hereby is vacated and a new trial in the case is granted. It is the further order of this court that 0. Gr. Terry, Fred R. Hover and R. N. Larrimer be and are hereby restrained from any further proceedings in case No. 26998 as above re ferred to until such time as a new trial has been had therein and a judgment obtained.

“While P. E. Claypool has filed in court a statement stating that he cannot at the present time produce a full and complete accounting of every item of expense out of the fund of forty-eight hundred ($4,800) dollars received from the'Industrial Commission of Ohio, it is hereby agreed that such funds as he still has on hand shall remain in his hands until the case has been reheard and a judgment obtained. It is the further order of this court that said P. E. Claypool.he restrained from disposing of any of said funds that he now has in his possession.

“Fred L. Eberhart

“Attorney for P. E. Claypool

“Chester Pendleton

“Common Pleas Judge.”

It will be noted that summons had not been served upon any of the defendants and the cause was not at issue when the foregoing entries on the judge’s trial docket and the court’s journal were made, and that the journal entry is not approved by any of the defendants or anyone purporting to act as their attorney.

On March 2, 1943, and after service of summons had been had upon them, the defendants filed their demurrer to the petition in cause No. 27104, but no action has been had thereon by the court.

■ Nothing appears on the appearance docket or on the journal of the court, or in the pleadings or original papers in the cause, in any way indicating that any of the defendants had entered their appearance in the cause up to the time the order was made on the trial docket and entered on the journal on January 8, 1943, and, as above mentioned, no service of summons was had on any of the defendants until four days after the entries were made.

Applicable to this situation are the following rules of law:

1. “A court can render a valid judgment in personam only when it has acquired jurisdiction over the person of the defendant either by the service of process upon him or by his voluntary appearance. This should be disclosed by the record which should show (1) that the defendant was served with process, (2) that he formally entered his appearance in the proceedings, or (3) that he, in person or by counsel, was present and participated in the hearing or took some step or proceeding which amounted to a general appearance * * *. The action of the court in this regard, though ordinarily without formalities, is absolutely necessary and must be made at the time the hearing is had.” 3 American Jurisprudence, 784, 785, Appearances, Section 6. See, also, Cleveland Leader Printing Co. v. Green, 52 Ohio St., 487, 40 N. E., 201, 49 Am. St. Rep., 725.

2. “If jurisdiction of the defendant has not otherwise been acquired, it is absolutely essential to establish the jurisdiction of the court that an appearance of the defendant affirmatively appear in the record which is the sole evidence thereof if the matter is placed in issue.” 6 Corpus Juris Secundum, 15, Appearances, Section 10.

3. “If the court in fact had no jurisdiction of the subject matter; whether the case be in rem or in personam, or, in cases in personam, of the parties, and there is no finding of the court that it had jurisdiction of the parties, any judgment or order which may be rendered, however regular the same may be in matter of form, is a mere nullity, and may be so- treated in a collateral as well as in a direct attack.” Wehrle v. Wehrle, 39 Ohio St., 365, 366, 367.

It will be noted that under both the first and second rules, where an appearance is in issue the matter must be tried by the record alone and not by other evidence.

On the trial of this case this court, as disclosed by the foregoing rules 1 and 2, erroneously admitted the testimony of witnesses on the question of the appearance of the defendants. This testimony it now sua sponte strikes out and it removes the same from consideration in the case.

As the record fails to show any appearance of any of the' defendants, either in their individual capacity or by attorney, up to the time the entries above mentioned were made on the judge’s trial docket and journal of the court, in cause No. 27104, the judgment of the Common Pleas Court in that cause vacating the judgment in cause No. 26998 in such court is, under rule 3 above mentioned, wholly void for want of jurisdiction of the persons of the defendants.

There is also another cogent reason why the judgment in cause No. 27104 is void.

In the case of Taylor, Assignee, v. Fitch, 12 Ohio St., 169, it is definitely held that a proceeding to vacate a judgment rendered by a Common Pleas Court at a former term, pursuant to statutory provisions similar to the provisions of Section 11631 et seq., General Code, is not of itself a civil action, but is a special proceeding in an action after judgment, and subject to review only on error, and that the proceedings to. vacate the judgment must be included in the record of the original case; that is, that the petition to vacate the judgment must be filed in the original case and all proceedings had thereon must be made a part of the record in the original case.

The reasoning upon which the holding in the Taylor case, supra, is based, as shown in the opinion in the case at pages 172 and 173, is irrefutable.

That holding has never been overruled and is. approved and followed in numerous cases, typical of which are the cases of Coates v. Chillicothe Branch State Banh of Ohio, 23 Ohio St., 415, at pages 431 and 432; and Braden v. Hoffman, 46 Ohio St., 639, at pages 640 and 641, 22 N. E., 930. See, also, 23 Ohio Jurisprudence, 1154, Judgments, Section 1023.

It is also approved and followed in the case of Bever v. Beardmore, 40 Ohio St., 70, at page 78, where it is held further that such proceeding is in the nature of an application for a new trial. That holding is approved and followed in the case of Beck v. Beck, 48 Ohio App., 105, 192 N. E., 791.

The holdings above mentioned show clearly that jt was the legislative intent, in the enactment of the statutory provisions in question, that a petition ‘for the vacation or modification of a judgment pursuant to such provisions, being in the nature of an application for a new trial, should be filed in the action in which the judgment sought to be vacated or modified is rendered.

The proceedings prescribed by such statutory provisions were unknown to the common law, and, being novel in character, strict compliance with such provisions is essential to the validity of a proceeding for vacation or modification of a judgment. Rabb, Aclmr., v. Board of Commrs. of Cuyahoga County, 36 Ohio App., 481, 173 N. E., 255; 2 Lewis’ Sutherland Statutory Construction (2 Ed.), 643, 644 and 645, Section 336.

Being in the nature of an application for new trial, it is obvious that the petition for the vacation or modification of a judgment is wholly ineffective to invoke the jurisdiction of the court unless it is filed in the action in which the judgment was rendered.

The petition in cause No. 27104, as will be noted from an inspection of the same, is based solely and wholly upon the provisions of Section 11631 et seq., General Code, and does' not allege any equitable grounds for relief from such judgment. Being so based and being filed in and as a separate action, it was ineffective to invoke the jurisdiction of the Common Pleas Court and the Common Pleas Court was without jurisdiction of the proceeding attempted to be commenced thereby. As the Common Pleas Court was without jurisdiction, the judgment is void.

As the judgment in cause No. 27104 was void it did not in any way constitute a bar to plaintiffs’ right to relief in cause No. 27106, on the judgment procured by them against the defendant P. E. Claypool in cause No. 26998.

The judgment of the Common Pleas Court in cause No. 27106, denying relief on the ground that the judgment in cause No. 26998 had been vacated and set aside by the judgment in cause No. 27104, is therefore erroneous in that it is contrary to law.

In submitting this cause, counsel assumed, and informed the court that the validity of the judgment in cause No. 26998 was the only issue in the case. But, as above mentioned, we find that the defendants have filed answers by way of general denials to the allegations of the petition, which place all the allegations in issue, so that notwithstanding the judgment in cause No. 27104 is void it will be necessary to take further testimony on the other issues joined by the pleadings before any final adjudication can be made. Therefore the case will be continued for the taking of further testimony on a date to be hereafter fixed by the court.

Decree accordingly.

Jackson and Middleton, JJ., concur.


author: •Guernsey, J.

text:
    Terry et al., Appellants, v. Claypool et al., Appellees.

      (No. 471
    Decided July 4, 1945.)

      Messrs. Betts & Betts, for appellants.

      Mr. Fred L. Eberhart, for appellees.
   •Guernsey, J.

This is an appeal upon questions of law and fact from a judgment of the Common Pleas Court of Hancock county, Ohio, in an action wherein O. G. Terry, Fred R. Hover and R. N. Larrimer were plaintiffs and P. E. Claypool and Olive J. Claypool' were defendants, and the cause is submitted de novo to this court upon the original pleadings-filed in the Common Pleas Court, and the evidence adduced in this court.

In their petition the plaintiffs, in substance, allege that on or about the 19th day of August 1942, they were awarded judgment for $1,200 against P. E. Clay-pool, one of the defendants, in case No. 26998 in the Court of Common Pleas of Hancock county; that they caused an execution to be issued on the judgment on or about the 8th day of September 1942, and delivered the execution to the sheriff of Hancock county who duly returned and filed the same on the same date, as ' not satisfied by reason of prior liens on the real estate levied upon consisting of an undivided one-half interest of the defendant P. E. Claypool in lots Nos. 4460 and 4461 in the Park addition in the city of Find-lay, Hancock connty, Ohio; that the prior liens at that time, as shown by the mortgage records of Hancock connty, on book 128, page 555, consisted of a first mortgage of the whole of both such lots, in the amount of $1,325 to The Hancock Savings & Loan Company of Findlay, Ohio, the. mortgage having been signed by P. E. Claypool and Olive J. Claypool as husband and wife; that subsequent thereto the plaintiffs caused an alias execution to issue against the interest of the defendant P. E. Claypool in the real estate and obtained an order of sale thereon; that the defendants devised and agreed between themselves for the defendant P. E. Claypool to pay the balance of $995.18 due on the mortgage, for the sole purpose of aiding the defendant P.„E. Claypool in cheating plaintiffs out of the money due them; that the defendant P. E. Claypool has property in the value of or money in the amount of $1,000 in his possession or under his control which ho conceals and refuses to disclose and account for; and that the payment of such indebtedness by him of the defendant Olive J. Clay-pool, which was her obligation and a lien on her individual interest in the real estate, constituted a fraud upon the plaintiffs herein as his creditors against which they have no adequate remedy at law. .

The prayer of the petition is that, the court find the defendant P. E. Claypool to be subrogated to the extent of half the amount paid on the balance due on the mortgage on behalf of the defendant Olive J. Claypool; that the interest of the defendant P. E. Claypool in the premises described to be one-half of the $995.18 in addition to the undivided one-half interest in the premises; and that the plaintiffs have a first lien upon the amount to be taken first from the proceeds of the sale of the real estate for application upon their judgment heretofore rendered in case No. 26998 and for other and full relief that may be just and proper.

The defendants P. E. Claypool and Olive J. Claypool filed separate unverified answers to the petition, denying each and every, all and singular, the material allegations in the petition of plaintiffs,

Without objection to the unverified answers, the case was submitted to this court.

The following facts appear in evidence:

Plaintiffs recovered'a judgment against P. E. Clay-pool, as alleged in the petition. The judgment was on an account for legal services rendered by them to P. E. Claypool in a proceeding brought by P. E. Claypool to recover compensation under the Workmen’s Compensation Act. The amount of compensation realized in the proceeding was between $4,500 and $4,800 which amount was paid direct to him by the Industrial Commission. Out of the compensation the defendant P. E. Claypool, on the 3rd day of June 1942, paid to The Hancock Savings & Loan Company the balance, amounting to $995.18,- due on certain indebtedness then owing by him and his wife Olive J. Claypool to such company, the payment of which was secured by mortgage on lots Nos. 4460 and 4461 in the Park addition in the city of Findlay, Hancock county, Ohio, the title to which stood in the joint, names of P. E. Claypool and Olive J. Claypool.

The mortgage indebtedness originally amounted to the sum of $1,325, but there is no evidence as to whether the funds used to pay the excess of the mortgage indebtedness over and above the sum of $995.18 was provided by P. E. Claypool or Olive J. Claypool, or both of them.

Execution was issued on the judgment of the plaintiffs against P. E. Claypool, to the sheriff of Hancock county, .Ohio, was levied upon his undivided one-half interest in the lots, and was duly returned, as in the petition alleged, and thereafter an alias execution was issued against the undivided one-half interest of the defendant P. E. Claypool in the lots, and an order of sale was obtained thereon.

In their briefs filed herein, the defendants contend that the petition does not state a. cause of action against the defendants.

While the petition is inartfully drawn, it does state a cause of action in the nature of a creditor’s suit to subject real estate and equitable assets of the judgment debtor £o the payment of plaintiffs’ judgment, so that contention is without merit.

In their briefs the plaintiffs contend that by reason of the fact that the answers of the defendants were unverified such answers are ineffective to controvert the allegations in their petition and plaintiffs are entitled to judgment in their favor upon their petition. However, as stated above, the case was submitted upon the pleadings and the evidence without objection to the forms of answers, which constitutes a waiver of such objection, and the case will be considered in the same manner as if the answers were properly verified. As the case stands, it is not material that the answers were not verified, as the evidence adduced supports the allegations of the petition.

In order to determine what, if -any, relief the plain- ' tiffs are entitled to in this action it is necessary to consider certain rules of law applicable to suits of this character.

The plaintiffs, who were attorneys for P: E. Claypool in the proceeding to recover compensation under the Workmen’s Compensation Act, are precluded by the provisions of Section 1465-88, General Code, from having any lien on the compensation received by P. E. Claypool in the proceeding. Brewer v. Emmett., 22 N. P. (N. S.), 425, 31 O. D., 384.

The doctrine of subrogation rests generally upon tbe principle that one who, for tbe purpose of protecting bis own interest, pays tbe debt or liability of another, is entitled to and may enforce all tbe liens and securities of tbe party to whom be pays. 38 Ohio Jurisprudence, 249.

As tbe plaintiffs have no lien on the compensation received by P. E. Claypool, the proceeds of which were used to pay mortgage indebtedness of the defendants to The Hancock Savings & Loan Company, they are not entitled to be subrogated to the mortgage by reason of the fact that the fund which they assisted in creating was used in paying the mortgage indebtedness. However, the right of such subrogation arises from other facts alleged in the petition and in evidence, which we will discuss hereafter.

A creditor’s suit, such as the instant action, has been defined as an equitable proceeding which is resorted to only when the creditor is unable to satisfy his claim at law, either on account of insufficiency of legal assets, or other circumstances rendering legal remedies inadequate. Such a suit is said to be in the nature of an equitable execution. 11 Ohio Jurisprudence, 983.

As the suit is in the nature of an equitable execution the judgment creditor to such suit subjects to the payment of his judgment only such right as the judgment debtor has in the property involved, and in enforcing such right against third parties, he is entitled to such remedies and securities as the judgment debtor would be entitled to in the premises, and is subject to the same defenses as the judgment debtor would be subject to.

Under - the provisions of Section 11760, Greneral Code, which is. largely declaratory of the general principles of chancery on the subject, “ ‘any equitable interest which’ the judgment debtor ‘has in real estate, as mortgagor, mortgagee, or otherwise, or any interest he has in * * * a money contract, claim, or chose in action, due or to become due to him * * * shall be subject to the payment of the judgment, by action.’ ” 11 Ohio Jurisprudence, 998.

Where two or more are under a common obligation to perform some lawful duty involving the expenditure of money, and one of them performs the whole duty and discharges the obligation, he is entitled to have contributory reimbursement from the others equally bound with him. It is immaterial whether the common liability is joint, several, or joint and several. 9 Ohio Jurisprudence, 667.

Since the general rule is based on principles of equity and justice, contribution will be denied where considerations of justice demand that result. 9 Ohio Jurisprudence, 668.

Proof of payment of more than a moiety of the debt by one of the parties under a common obligation, raises a prima facie case for contribution. Gaster v. Waggoner, 26 Ohio St., 450; 9 Ohio Jurisprudence, 712.

“As between joint debtors, there is no presumption of law that either is primarily liable for the debt; nor is there a presumption that any fact or relation between them exists which would show that each is not equitably bound, as between themselves, to pay his proportionate share of the debt. If there be such primary liability, or if there be no equitable obligation as between themselves to pay proportional shares, the facts which rebut the presumed equity should be set up by way of defense, and need not be negatived in a petition for contribution.” Gaster v. Waggoner, supra, at pages 451 and 452.

Applying the rules mentioned to the facts in evidence, it is clear that the plaintiffs in this proceeding are entitled to have the undivided one-half interest of the defendant P. E. Claypool in the real estate described subjected to • the payment of their judgment. It is also clear that the payment by P. E. Claypool of $995.18, in satisfaction of the balance due on the mortgage indebtedness, which originally amounted to $1,325, constituted the payment by him of more than a moiety of the debt which was a common obligation of himself and his wife, Olive-J. Claypool, and proof of this raises a prima'facie case for contribution.

Under the rule relating to subrogation, P. E. Clay-pool was entitled to enforce all the liens and securities of the loan company, as against Olive J. Claypool, to secure contribution by her of the excess paid by him on the indebtedness over and above the amount of his moiety.

By this creditor’s suit the plaintiffs have subjected the right of P. E. Claypool against Olive J. Claypool for such contribution to the payment of their judgment debt, with all the rights to enforce the same that he (Claypool) had, including the right of subrogation to the mortgage, to enforce such contribution.

There being no evidence and no presumption as to whether P. E. Claypool or Olive J. Claypool paid the balance of the mortgage indebtedness over and above the sum of $995.18, the court, in the absence of any defense interposed by -the defendant Olive J. Claypool showing a contrary state of facts, and of any evidence on the subject, must assume that neither of the joint debtors paid any amount beyond his or her moiety of such excess.

The case, on the pleadings and the evidence, then stands as if $995.18 constituted the-whole of the mortgage indebtedness and as if that amount was owed jointly by the debtors, the party paying not being primarily liable for the debt, and no facts existing which would not entitle him to the equitable right of contribution. •

In this situation the court holds that the plaintiffs are entitled to have the undivided one-half interest of the defendant P. E. Claypool in the lots hereinbefore mentioned, sold and the proceeds applied to the payment of their judgment; that P. E. Claypool was entitled to contribution from the defendant Olive J. Clay-pool in the sum of $497.59, with interest from June 3, 1942, being the excess he paid on the joint indebtedness over and above his moiety, and to enforce the lien of the mortgage of The Hancock Savings & Loan Company to secure the payment of such contribution; and that the plaintiffs have, by this suit, succeeded to all the rights o*f P. E. Claypool to such contribution and the enforcement thereof.

It is, therefore, ordered, adjudged and decreed by the court that the undivided one-half interest of P. E. Claypool in the lots be sold and the proceeds, after the payment of costs herein, be applied to the payment of the judgment of the plaintiffs against him; and that the claim for contribution in the amount aforesaid is a lien on the undivided one-half interest of Olive J. Claypool in the lots, and, unless she shall pay the amount thereof to the clerk of this court for application on the judgment of plaintiffs, within ten days after the entry of the judgment and decree, the lien shall be foreclosed and her interest in the premises be sold to satisfy the lien, and the amount of the claim for contribution shall be paid to the plaintiffs out of the proceeds thereof.

It is further ordered; adjudged and decreed that the defendants pay the costs of this action.

Decree accordingly.

Middleton, P. J., and Jackson, J., concur.