author: By NICHOLS, J. By PHILLIPS, PJ.

text:
    TRITTO, Plaintiff-Appellee, v. TRITTO, Defendant-Appellant.
    Ohio Appeals, Seventh District, Mahoning County.
    No. 3766.
    Decided June 16, 1955.
    Spain & Spain, Warren, for plaintiff-appellee.
    Thomas E. Antonelli, Youngstown, for defendant-appellant.
   OPINION

By NICHOLS, J.

This action was instituted in the Common Pleas Court of Mahoning County, Ohio, and is now in this court of appeals on questions of law from the judgment of the trial court in favor of plaintiff, Sophia Tritto, against her husband, Anthony Tritto.

In plaintiff’s petition she allegees that she and defendant were married in New York City on the 17th day of January, 1943; that prior to the 10th day of September, 1954, an action was commenced by her in the Supreme Court of Westchester County in the State of New York for separation from bed and board against defendant, wherein an order was made for the payment of alimony for the support of plaintiff in the sum of $20.00 per week; that no part of that order was complied with by defendant; that said action is still pending, and that said order is still in full force and effect to this date, and that as of November 21, 1952, there was due and owing the plaintiff from the defendant the sum of $7440.00. Plaintiff further alleges the defendant is possessed of certain described property situated in Mahoning County, Ohio; and further avers that by consideration of the Supreme Court of Westchester County, New York, on the 21st day of November, 1952, she recovered a judgment against said defendant in the sum of $7440.00 with $10.00 costs; that an exemplified copy of said judgment is attached to her petition; that said court was a court of general jurisdiction, duly created by the laws of the state of New York; and that no part of that judgment has been paid; and prays for judgment against defendant for $7450.00 and costs.

Defendant, after admitting the marriage, and that said proceedings were commenced by plaintiff for separation from bed and board against, defendant, for answer alleges that no personal summons or notice was served upon him in the action set forth in the petition upon which such alleged judgment was obtained, nor did he appear in said action for the alleged judgment in the state of New York; that ever since November, 1945, his domicile and residence was in the state of Ohio, and that on November 21, 1952, he was a resident of the state of Ohio and did not discover or learn of the alleged judgment rendered by the Supreme Court of Westchester County until the commencement of this action; and defendant prays the petition be dismissed.

By amended reply to defendant’s answer plaintiff denies each and every affirmative allegation thereof, and alleges:—

“* * * service on the Order to show Cause why judgment should not have been rendered in the Supreme Court of Westchester County in the State of New York in favor of this plaintiff and against the defendant herein, was made on his attorney of record, Thomas Barnes, 31 Croton Avenue, Ossining, New York, on the 11th day of November, 1952, by an order of Elbert L. Gallagher, Justice of the Supreme Court in said county under date of November 7, 1952; that said order was issued under and by virtue of Section 1171-b of the Civil Practice Act for the State of New York which is as follows:
“ ‘Where the husband, in an action for divorce, separation, annulment, or declaration of nullity of a void marriage, or a person other than the husband when an action for an annulment is maintained after the death of the husband, makes default in paying any sum of money required by the judgment or order directing the payment thereof, the court in its discretion may make an order directing the entry of judgment for the amount of such arrears, or for such part thereof as justice requires having regard to the circumstances of the respective parties, together with ten dollars costs and disbursements. The application for such order shall be upon such notice to the husband or other person as the court may direct. Such judgment may be enforced by execution or in any manner provided by law for the collection of judgments. The relief herein provided for is in addition to any and every other remedy to which the wife may be entitled under the law, provided that when a judgment for such arrears or any part thereof shall have been entered pursuant to this section, such judgment shall thereafter not be subject to modification under the discretionary power granted by this section; and after the entry of such judgment the judgment creditor shall not thereafter be entitled to collect by any form of remedy any greater portion of such arrears than that represented by the judgment so entered. (Am. L. 1940 ch. 226, in effect Sept. 1; L. 1947 Ch. 743, in effect Sept. 1; L. 1948 ch. 212, in effect March 21).’
“Further replying plaintiff says that the Supreme Court of Westchester County in the State of New York, had continuing jurisdiction ever the person of the defendant and that the judgment heretofore rendered is valid and in full force and effect.”

The facts disclosed by the record in the common pleas court of Ma-honing county are: Sophia Tritto, after having beén married to Anthony Tritto for a period of two and one-half years, moved out of their home in Ossining, New York, and filed her action against him on August 20, 1945, in the Supreme Court of Westchester County, State of New York, a court of general jurisdiction, where both parties resided at the time, wherein she sought a legal separation from bed and board, and an order for temporary alimony for her support during the pendency of the action and for her attorney fees. The attorney for Mrs. Tritto served her husband with notice to answer within twenty days or judgment would be taken by default. Anthony Tritto procured the services of Attorney Thomas H. Barnes, who was not then in partnership with any other attorney, for the purpose of answering the motion for temporary alimony, and Mrs. Barnes filed such answer on behalf of Mr. Tritto, praying that the motion for temporary alimony be denied.

The matter coming on for hearing before M. B. Patterson, J. S. C., on the 12th day of September, 1945, and neither party appearing in person, the judge on motion of the attorney for plaintiff, “on reading and filing the notice of motion dated April 20, 1945, the affidavits of Emanuel Lauterbach sworn to the 20th day of August, 1945, and the affidavit of Sophia Tritto sworn to on the 20th day of August, 1945, and upon the Summons and Complaint in this action duly verified the 20th day of August, 1945, all in support of said motion, and the affidavit of Anthony Tritto sworn to the 4th day of September, 1945, and the answer of Anthony Tritto verified the 4th day of September, 1945, all in opposition thereto,” ordered that the defendant be directed to pay to plaintiff $150.00 for her counsel fee and to pay her $20.00 per week alimony during the pendency of the action.

No further proceedings were taken in the New York court until the 5th day of November, 1952. In the meantime Anthony Tritto had removed from the State of New York to Youngstown, Ohio, where he has resided since about the first day of December, 1945. He here testified that he was unable to obtain employment in New York, and that after obtaining employment in Youngstown he wrote his wife letters inviting her to join him in Youngstown. She testified she never heard from him after the order for temporary alimony made September 12, 1945, both she and her attorney testifying that they did not know where he resided after he left New York.

The parties have never been divorced, and no decree of legal separation has ever been entered in her behalf. Of course the husband had the right to remove from New York to Ohio regardless of the reasons impelling him to do so, since he was in no sense a fugitive from justice in any criminal action.

On the 5th day of November, 1952, Sophia Tritto caused her affidavit to be filed in the Supreme Court of Westchester County, New York, in which she set forth the fact that the order for temporary alimony had been made September 12, 1945; that “immediately after this order was signed the defendant left this jurisdiction and his whereabouts was unknown until one month ago”; that “because of his absence plaintiff was unable to serve upon the said defendant a certified copy of the said order”; that “the defendant is no longer in this jurisdiction having left this state shortly after the aforementioned order was signed. I have been informed that he is presently in Youngstown, Ohio.” Her affidavit stated that defendant has never made any payments pursuant to the previous order, has failed to pay the sum of $20.00 per week since the signing thereof, and the defendant is in arrears in the sum of $7440.00; that she makes this affidavit pursuant to Section 1171-B of the Civil Practice Act, “for an order, directing the Clerk of the County of Westchester to enter a money judgment in my favor and against the defendant in the sum of $7440.00”; that no other judgment has ever been entered for such sum, and that no previous application has been made for the relief or order sought herein. Her affidavit further sets forth that “Barnes, Barnes & Barnes, Esq. of 31 Croton Avenue, Ossining, New York, upon information and belief, have been and still are the attorneys for the defendant in this matter in this state. I, therefore, respectfully request that the court direct the service of these papers, including the order to show cause for service upon the defendant by serving his attorneys here in New York.”

John E. Babchak, Jr., an associate of Emanuel Lauterbach, attorney for plaintiff, made affidavit that “on the 11th day of November, 1952, he served the within affidavit and order upon Thomas Barnes, Esq. attorney for defendant, Anthony Tritto, by delivering to and leaving personally with said Thomas Barnes, Esq. a true copy thereof”: and further “that he knew the person served as aforesaid to be Thomas Barnes, the person representing the defendant named in said Affidavit and Order.”

It definitely appears that the order and affidavit were not served in strict accordance with the direction of the judge to serve Barnes, Barnes & Barnes, but Thomas H. Barnes, the original attorney for Anthony Tritto, received such notice, and on the 18th day of November, 1952, he filed his affdavit alleging that he is an attorney at law and a member of the firm of Barnes and Barnes, Attorneys-at-Law; and further avers:—

“That the partnership of Barnes and Barnes was formed and commenced the practice of law as a partnership on January 1, 1946, and have never been and are not now attorneys for Anthony Tritto.
“That your deponent is not an attorney for Anthony Tritto and has not been attorney for Anthony Tritto since on or about September 12, 1945. * * *
“* * * no certified copy of order was ever served upon him and no copy of proposed order was ever served upon him.”

Thomas H. Barnes further avers that Anthony Tritto had left Ossining, and he has not heard from him either directly or indirectly since his departure over seven years ago, and does not know of his whereabouts except that the affidavit of Sophia Tritto in the present motion alleges that she is informed that he is presently in Youngstown, Ohio; and that deponent is not and does not consider himself attorney for Anthony Tritto since September 12, 1945, over seven years ago; and that this affidavit is made by deponent not as attorney for defendant, Anthony Tritto, but for the information of the court only.

On the 7th day of November, 1952, the following order was made by Elbert L. Gallagher, Judge of the Supreme Court of Westchester County, New York:—

“On the affidavit of Sophia Tritto, verified the 5th day of November, 1952, and on all the papers and proceedings heretofore filed and had herein.
“Let, Anthony Tritto, the defendant above named, show cause before this court at a special term, Part I thereof, to be held in and for the County of Westchester, at the County Courthouse in the City of White Plains, on the 18 day of November, 1952, at 10:00 o’clock in the forenoon of that day or as soon thereafter as counsel can be heard, why an order should not be made directing the entry of judgment for the amount of arrears in the payment of the sums of money required to be paid by the defendant above named to the plaintiff above named under the order of this court made and entered on the 12th day of September, 1945, and requiring the defendant to pay to the plaintiff her expenses in bringing and carrying on this proceding and why plaintiff should not have such other and further relief as to the court may seem just and proper.
“Sufficient cause appearing therefor, let service of this order and the affidavit upon which it is granted upon the said defendant’s attorneys Barnes, Barnes & Barnes, Esqs., 31 Croton Avenue, Ossining, New York, on or before the — day of November, 1952, be deemed sufficient.”

Section 1171-B of the Civil Practice Act of the State of New York is correctly set forth in the amended reply of plaintiff filed in Mahoning County Common Pleas Court.

Upon the trial of this action, as shown by the bill of exceptions filed herein, the deposition of Thomas H. Barnes was admitted in evidence and read wherein he testified he was not attorney for Anthony Tritto on November 21, 1952, in the proceedings entitled Sophia Tritto v. Anthony Tritto in the Supreme Court of Westchester County, New York; that he notified the Supreme Court of New York prior to November 21, 1952, by affidavit that the relationship of attorney and client had been terminated, his affidavit being filed not as attorney for Anthony Tritto, but for the consideration of that court alone; that there are two Thomas Barnes in the firm of Barnes & Barnes; that his name is Thomas H. Barnes, and the other member of the firm is Thomas G. Barnes; that Thomas H. Barnes is the attorney who filed the affidavit of Anthony Tritto in the matter of allowance of temporary alimony.

As will be observed from the quoted affidavit of John E. Babchak, Jr., the affidavit and order made in the proceedings to reduce the alimony order to judgment was served merely upon Thomas Barnes, without designating a middle initial. It further appears, as hereinabove set forth, that the judge of the court in that proceeding directed that the service of the order and affidavit be made upon “said defendant’s attorneys, Barnes, Barnes & Barnes, Esq., and be deemed sufficient.”

Upon the trial of this action in Mahoning County, as shown by the bill of exceptions filed herein, Emanuel Lauterbach, the attorney who represented Sophia Tritto in the New York Court, testified as an expert and gave proof as to the authenticity of the quoted act, Section 1171-B, and also testified as to Statutory Rule of Civil Practice, Section 240, which says:—

“Death, removal or disability of attorney. If an attorney dies, is removed, or suspended, or otherwise becomes disabled to act at any time before judgment in an action, no further proceeding shall be taken in the action against the party for whom he appeared until thirty days after notice to appoint another attorney has been given to that party either personally or in such manner as the court directs.”

He then testified as to Rule 56, the rule for procedure, as follows:—

“Substitution of attorneys. An attorney of record for an adult party or corporation may be changed by the filing, with the clerk of the court in which action or proceeding may be pending, of a stipulation in writing for such change of attorney, signed by the attorney and signed and acknowledge by the party. The making and filing of such stipulation shall have the same effect as an order of substitution. An attorney may also be changed by order.”

Mr. Lauterbach testified that substitution had not been accomplished in the manner set forth in Rule 56.

But it is noticed that the rule only says that an attorney “may be changed” and not that the rule prohibits a change in any other manner, and the affidavit of Mr. Barnes that he has not been attorney for Mr. Tritto since 1945 is not disputed, and Mr. Tritto testified that Mr. Barnes was employed only for the purpose of filing the affidavit opposing the allowance of temporary alimony and paid only for that service, which was evidently the understanding of both Mr. Barnes and Mr. Tritto.

In his testimony Mr. Lauterbach quoted from Thomas v. Thomas, 178 Miscellaneous, Page 359, as follows:—

“Generally, where a party appears by attorney one has a right to presume, nothing else appearing to the contrary, that his employment as such is a continuing one to the end of the litigation, and it is held that in ordinary cases an attorney has a right to consider his employment as so continuing unless dismissed by his client. However, it does not follow from the power of the client to discharge his attorney that it can be employed as a device to create a disability for the purpose of trial or to hamper or defeat the administration of justice. Where the condition of disability is thus created, whether done solely by the client, or resulting from collusion, the statute is inoperative. The true design of the law is, in a proper case, giving due consideration to attending facts and circumstances, to afford a party left without counsel a reasonable opportunity to engage one to protect his interests and rights and the statute cannot be utilized or availed to have another and different purpose.”

We have had some difficulty in identifying the quoted language as appearing in Thomas v. Thomas, supra, but find that Mr. Lauterbach selected from the opinion in that case disjointed sentences and quoted them as a single paragraph.

The syllabus in the case of Thomas v. Thomas is too long to quote fully herein, but it will be seen that certain paragraphs of that syllabus may be construed as sustaining the position of the wife and other paragraphs are contrary thereto. That court apparently held that Rule 56, above quoted, was not the only way in which an attorney and client relationship could be terminated, and it is apparent by the use of the word “may” in that rule the court was justified in holding that “to discharge attorney, court order or special formality is not required, and any act of client indicating unmistakable purpose to sever relations is sufficient, and thereafter there cannot be legal continuance in case by attorney or appearance for or representation of the client.” That court held that Section 240 of the Civil Practice Act applied, but also held:—

“Under statute relating to stay of proceedings in event of attorney’s disability, client’s right to discharge attorney cannot be employed as device to create disability to delay trial or to hamper or defeat administration of justice.” Thomas v. Thomas, 34 N. Y. S. (2d) 321.

In this case the testimony of Thomas H. Barnes is to the effect that Mr. Tritto indicated that he would leave the state of New York rather than pay the temporary alimony allowed by the court. He states that he did not receive any copy of the order allowing temporary alimony, but is is quite clear that if he did not receive such copy he had left the state of New York without informing his attorney as to where he could be found, nor did he give any information to the court which would have enabled a notice of allowance of temporary alimony to be served upon him. He apparently followed the example of the ostrich and stuck his head in the industrial sands of Mahoning County where he has resided ever since.

While Mr. Barnes, the attorney who represented the husband in the original action, testified that he did not consider himself as now being attorney for Mr. Tritto we think that the court of that jurisdiction was justified in the assumption that Mr. Barnes’ relationship as attorney had never been severed. While the notice was not served upon Barnes, Barnes & Barnes we think that it was served in the only manner which would reasonably give notice to Mr. Tritto under the circumstances, and that, the court was justified in holding that compliance with the provisions of Section 1171-B of the Civil Practice Act had been sufficiently complied with.

The case of Thomas v. Thomas is severely criticized by the Supreme Court of two other jurisdictions of like authority. Cann v. Cann (204 Miscellaneous 1069) 127 N. Y. S. 57, and Hendry v. Hilton (283 Appellate Division 168) 127 N. Y. S. 458. However, the United States District Court for the Southern District of New York in the case of Commercial Laundry, Inc. et al, v. Linen Supply Assn. of Greater New York, Inc. et al, 90 Federal Supplement 470, cites with approval the decision in Thomas v. Thomas, supra, and says in the opinion “and it is clear an attorney’s withdrawal from the case is a disability covered by the section,” referring to Section 240 of the New York Civil Practice Act

Mr. Lauterbach also identified Minear v. Minear, 188 Miscellaneous 101, 66 N. Y. S. 2d 879; Davidson v. Ream, 175 App. Div. 6, Page 760; Ridder v. Ridder, 175 Miscellaneous, Page 84, which refers to the case of Michigan Trust Company v. Ferry, 228 U. S. 346; Muller v Muller, 184 New York Miscellaneous 587; Durlacher v. Durlacher, 173 New York Miscellaneous 329; Rosenthal v. Rosenthal, 201 Appellate Division of New York, Page 27 at 29, referring to Wulff v. Wulff, 74 Miscellaneous Reports 213, 133 New York Supplement 807, affirmed 151 Appellate Division 22.

Mr. Lauterbach quoted from several of the above decisions. It is quite apparent that there is much confusion even in the state of New York as to whether the notice to the husband provided for in Section 1171-B would constitute due process of law.

From our examination of the authorities available, however, we conclude that the order to reduce payments of temporary alimony to a lump sum, as was done in this case, is not the institution of a new action, but that the purpose of the section is solely to provide a means by which the wife may enforce, by execution, or by proceedings in the courts of the state where the husband may be found for the collection of the amount of such alimony which has not been modified or changed in the original action.

Unquestionably Mr. Tritto, having entered his appearance in the original action was bound to know that if he did not move to modify the allowance of temporary alimony therein made it would accumulate to the amount subsequently found by the Supreme Court of the County of Westchester, New York. He made no move to modify that decree.

Keeping in mind that Section 1171-B hereinabove quoted provides that the notice of application to reduce the several amounts to a lump sum “shall be given to the husband” as the court may direct, it is clear that such proceeding is upon motion ancillary to the action for separation and alimony, and if it be claimed that the court abused its discretion in requiring such notice to be served upon the attorney who filed the defendant’s answer then the remedy of the defendant would be to apply to the court of jurisdiction rather than to attempt to collaterally attack the action in the court in the proceeding instituted in the court of Mahoning county.

It is apparent that the provisions of the quoted section do not attempt to provide due process of law necessary in the original action but only in an ancillary matter upon motion for the purposes therein stated, to-wit of enforcing the judgment theretofore rendered for alimony, which had not been modified.

In this respect we cite in particular the case of Durlacher v. Durlacher, 173 New York Miscellaneous, 17 N. Y. S. (2d) 643.

It is not the province of this court to declare the act unconstitutional.

Since the New York Court had jurisdiction over the cause pf action and in his answer filed in that court he entered his personal appearance therein, his remedy, if any, would have been to apply to that court to set aside its order if the notice to defendant was claimed to be insufficient rather than to attack the same collaterally in the Ohio court.

It furthermore appears to this court under authority of Armstrong v. Armstrong, 117 Oh St 558, that even though the New York court had not made an order finding the total amount of temporary alimony due nevertheless plaintiff would have had an action in the courts of the state of Ohio to recover the accumulated amount of alimony provided by the judgment of the New York Court. That was exactly the situation in the Armstrong case.

We find no error prejudicial to the rights of the defendant in this case which would justify this court in holding that the proceedings in the Supreme Court of Westchester County, New York, were unconstitutional and void, or in holding that the judgment of the common pleas court of Mahoning County, Ohio, should be reversed, and it is therefore affirmed.

GRIFFITH, J, concurs in opinion and judgment.

PHILLIPS, PJ, concurs in judgment.

CONCURRING OPINION

By PHILLIPS, PJ.

Defendant appealed to this court on questions of law from a judgment of the court of common pleas in the amount of $7440.00 entered upon a finding of a judge thereof for plaintiff in her action against defendant, her husband, to recover, together with costs of $10.00, a judgment against him for temporary alimony of $20.00 a week decreed her by the Supreme Court of Westchester County, New York, on November 21, 1952, in her action for separate maintenance filed in that court on November 10, 1945.

The parties were married in New York City, N. Y., on January 17, 1943, and lived together thereafter for two years as husband and wife in Ossining, New York.

The evidence discloses that defendant was duly and regularly served with summons in plaintiff’s action in Westchester County, New York, for separate maintenance; that the amount, nor any part, of the decree of the New York court or judgment of the Ohio court has ever been paid by defendant to plaintiff, that during the year 1945 defendant established his residence in Youngstown and has lived in Youngstown and been employed there since that year, during which time plaintiff did not live with him in Youngstown as his wife. There is disputed evidence that defendant established his residence in Youngstown for the purpose of evading payment of alimony to plaintiff.

Defendant claims that the alimony order was entered without his knowledge or the knowledge of Attorney Thomas H. Barnes.

Personal service of a copy of plaintiff’s affidavit filed with the Supreme Court of Westchester County, New York, on November 5, 1952, asking for an order to show cause and for a money judgment to be entered in her favor for $7440.00 and court costs of $10.00 was made upon Attorney Thomas H. Barnes, who represented defendant last in 1945. Upon receipt of that service Attorney Thomas H. Barnes advised that court by affidavit filed by him, and not as attorney for defendant, that he had not seen nor heard from defendant for more than seven years, and during that time had not and did not then consider himself his attorney.

The judgment for $7450.00 was entered subsequent to the execution and filing of such affidavit.

The trial court found and held that:—

“* * * the court finds in favor of the plaintiff and against the defendant.
“The court further finds that the defendant, Anthony Tritto, is indebted to the plaintiff, Sophia Tritto, in the amount of $7,450.00.
“The court further finds that the defendant’s attorney in New York State, not having been discharged in the manner as prescribed in Rule 56 of the Rules of Civil Practice, his authority as to the adverse party continues unabated, Hendry v. Hilton App. Div. 12-30, 1953, N. Y. Journal Jan. 19, 1954; by virtue of the last sentence of Section 1171-B of the N. Y. Civil Practice Act, the judgment of the New York Court is not subject to modification, but is final; the judgment being valid in New York per authority cited in the briefs, Ohio must give full faith and credit to it, 117 Oh St 558 and other citations; this court holds Rule 56 to be constitutional, although whether the U. S. Supreme Court will so hold as applicable to a defendant who is no longer a resident or citizen of New York state is an open question.
“Wherefore, it is ordered, adjudged and decreed that the plaintiff, Sophia Tritto, recover of the defendant, Anthony Tritto, the sum of $7,450.00, together with the costs herein made, and execution is awarded therefore; to all of which defendant, by his counsel, excepts.”

By assignments of error defendant contends:—

“1. The court of common pleas erred in its findings and judgment for the plaintiff.
“2. The court erred in the rejection of evidence offered by the defendant-appellant, to which rejection of evidence the defendant-appellant at the time excepted.
“3. The findings and judgment of the trial court is not sustained by sufficient evidence and is contrary to law.
“4. The findings and judgment of the trial court is contrary to the manifest weight of the evidence.
“5. The opinion, finding, order and judgment of the common pleas court for plaintiff-appellee and overruling defendant-appellant’s motion for a new trial are not based upon or supported by either the manifest weight of the evidence or any evidence, but in fact unsupported by and are contrary to the evidence and contrary to law.”

Defendant contends that the “questions presented” are:—

“Whether the rules of court 56 and Civil Practice Act of New York, Sec. 240, Sec. 1169, 1170 and Sec. 1171-b are applicable to a non-resident defendant, and if so, whether proper notice was served upon the nonresident defendant, Anthony Tritto?
“Whether court rule 56 and civil Practice Act Sec. 240, Sec. 1169, 1170 and Sec. 1171-b are constitutional and applicable so far as affecting the substantial rights of a defendant who is no longer a resident or citizen of the state of New York.”

In a word defendant’s contention with reference to the questions presented is:—

“* * * that the alleged judgment of November 21, 1952, by the New York court is void because proper notice was not served on the defendant; that the relation of attorney and client was of limited employment for the sole purpose of the motion for temporary alimony, that personal knowledge and written notice was given to Mr. Lauterbach, Attorney for plaintiff, and also to the New York court prior to the entering of the alleged judgment upon which this action is based; that the temporary order for alimony was not a final judgment and was subject to modification; and therefore the trial court in the case at bar erred in finding for the plaintiff.”

Plaintiff contends that the Supreme Court of Westchester County, New York, had jurisdiction over defendant’s person to enter judgment against him because such judgment is valid and enforceable in Ohio “according as it is - or is not valid in the state of rendition (23 O. Jur. Sec. 470, Page 790, Armstrong v. Armstrong, 117 Oh St 558)”; that “irregularities in the rendition of a foreign judgment can not be questioned in the courts of this state. Goodrich v. Jenkins, Wright, 348; Sipes v. Whitney, 30 Oh St 69; Armstrong v. Armstrong, 117 Oh St 558.”

In the syllabi of the case of Armstrong v. Armstrong, supra, the supreme court said:—

“A judgment for alimony payable in installments rendered upon entering a decree for divorce constitutes a final judgment within the full faith and credit clause of the Federal Constitution so far as accrued installments are concerned, no modification of the decree having been made prior thereto, unless it appear from the law of the jurisdiction wherein the decree was granted that the power of modification expressly retained extends to accrued as well as to future installments of alimony.
“Where a divorce was regularly decreed by a Kentucky court and a sum payable in installments was awarded as alimony and for the support and maintenance of children of the parties and there has been no modification of such judgment it will be enforced by the courts of Ohio under the full faith and credit clause of the Federal Constitution.”

In the body of the opinion written in the Armstrong case' the supreme court at page 566 said:—

“ ‘If the husband moves out of the jurisdiction of the court, and so remains continuously for a long period of time, he renders the statute nugatory and the court without power to act further. Such a litigant ought not be permitted to evade the letter and spirit of the statute as applied to himself, and at the same time use it as a weapon against his helpless adversary.’ ”

In the case of Bowling v. Bowling, 62 Abs 178, the court held that accrued installments of alimony is a final judgment which is enforceable in Ohio.

In the case of Appel v. Appel, 78 Oh Ap 53, a wife sued her husband in Ohio on a New York judgment for alimony in the sum of $700.00. The husband contended that the order made by the New York Court was contrary to law and not a final judgment; and accordingly was not entitled to full faith and credit because it was subject to modification by the New York Court. In that case the court of appeals for Frankklin County, relying on the rule announced in Armstrong v. Armstrong, supra, in a well reasoned opinion, held:—

“A judgment rendered by a court in the state of New York for $700.00 for unpaid installments of alimony under a section of the Civil Practice Act of that state which provided that ‘the court may make an order directing the entry of judgment for the amount of such arrears, * * * Such judgment may be enforced by execution or in any other manner provided by law for the collection of money judgments’ is a final judgment on which suit may be brought in the courts of this state and is entitled to full faith and credit under the ‘full faith and credit’ clause of the United State Constitution.”

In the case of Barber v. Barber, 323 U. S. 77, a North Carolina Court of competent jurisdiction upon authority of a statute of that state similar to the New York statute, involved in the case we review, entered judgment for the wife against her husband for alimony in arrears. A suit testing the full faith and credit of such judgment was commenced in Tennessee. In that case the Supreme Court of the United States said:—

“We do not find in the language on which the Tennessee court relied any clear or unequivocal indication that the judgment for arrears of alimony, on which execution was directed to issue, was itself subject to modification or recall. True, as the opinion of the North Carolina court states, the judgment for arrears of alimony was not a final judgment in the separation suit. As to future alimony payments not merged in the money judgment, the allotments ordered are, by the terms of the statute, subject to modification. * * *.
“* * * The present judgment is on its face an unconditional adjudication of petitioner’s right to recover a sum of money due and owing which, by the law of the state, is a debt.”

See also Woodward v. Woodward, 16 Oh Ap 12.

Reserving momentarily for consideration the question raised by defendant that the judgment of the New York court is invalid because no personal service was obtained on him when he was a resident of Ohio, but rather on Attorney Thomas H. Barnes in New York state, which judgment was rendered subsequent to receipt of notification by his attorney that he considered himself defendant’s attorney no longer, it is apparent to me from the cited authorities that if the judgment for unpaid installments of alimony was duly and regularly rendered in a court of competent jurisdiction in New York such judgment is enforceable in Ohio under the comity clause of the Federal Constitution.

This conclusion brings me to consider forthwith the question whether the judgment sought to be enforced in Ohio was duly and regularly rendered in New York.

Section 1171-b of the New York civil Practice Act, under which the judgment involved in the case we review was entered, provides:—

“Where the husband, in an action for divorce, separation, annulment, or declaration of nullity of a void marriage, or a person other than the husband when an action for an annulment is maintained after the death of the husband, makes default in paying any sum of money as required by the judgment or order directing the payment thereof, the court in its discretion may make an order directing the entry of judgment for the amount of such arrears, or for such part thereof as justice requires having regard to the circumstances of the respective parties, together with ten dollars costs and disbursements. The application for such order shall be upon such notice to the husband or other person as the court may direct. Such judgment may be enforced by execution or in any other manner provided by law for the collection of money judgments. The relief herein provided for is in addition to any and every other remedy to which the wife may be entitled under the law; provided that when a judgment for such arrears or any part thereof shall have been entered pursuant to this section, such judgment shall thereafter not be subject to modification under the discretionary power granted by this section; and after the entry of such judgment the judgment creditor shall not thereafter be entitled to collect by any form of remedy any greater portion of such arrears than that represented by the judgment so entered (Am. L. 1940 ch. 226, in effect Sept. 1; L. 1947 ch. 713. in effect Sept. 1; L. 1948 ch. 212, in effect March 21).”

Acting under authority of that section of the New York Civil Practice Act, upon the filing by plaintiff of her affidavit on September 5, 1952, in which she sought an order, to reduce delinquent installment alimony payments to judgment, the judge of the New York court in his discretion, which there is no evidence or claim he abused, ordered service of such affidavit made on Attorney Thomas H. Barnes.

In discussing Section 1171-b in the case of Muller v. Muller, 54 N. Y. S. (2d) 462, the court said:—

“The statute providing that application for order in separation action directing entry of judgment for amount of alimony arrears shall be upon such notice to husband as court may direct does not require personal service upon husband and contemplates that court will direct that service shall be made in a manner in keeping with particular circumstances which may be involved.”

In this case I believe that service upon Attorney Thomas H. Barnes prior to final judgment being rendered under Section 1171-b is valid under the New York law and is good service binding the defendant. Rosenthal v. Rosenthal, 193 N. Y. S. 702.

In the case of Hendry v. Hilton, 127 N. Y. S. (2d) 454, decided December 30, 1953, which defendant contends, but I do not believe, is easily distinguished from the case we review, the Supreme Court, Appellate Division, Second Department, said:—

“1. Statute providing that if an attorney dies, is removed or suspended or otherwise becomes disabled to act at any time before judgment in an action, no further proceedings shall be taken in action against party for whom he appeared until 30 days after notice to appoint another attorney has been given, does not relate to removal or suspension of attorney from the case, or his disability to proceed therein, when such removal, suspension or disability is caused by voluntary act of attorney or client or by both, but it connotes a force majeure, such as death, mental or physical incompetency or other act not of a voluntary character. Civil Practice Act. Section 240.
“2. Purpose of statute declaring that if an attorney dies, is removed or suspended or otherwise becomes disabled to act at any time before judgment, no further proceedings shall be taken against party for whom he appeared until thirty days after notice to appoint another attorney has been given is to afford a litigant who has, through no act or fault of his own, been deprived of the services of his counsel, a reasonable opportunity to obtain new counsel before further proceedings are taken against him in the action, and thus a client’s voluntary discharge of his attorney after trial, but before signing of judgment, did not entitle defendants to benefit of the thirty day provision. Civil Practice Act, Section 240.
“3. Until an attorney of record is discharged in the mode prescribed by law, consisting of either an order of the court or by stipulations signed by the attorney and the client, the attorney is authorized to a.ct for all purposes incidental to the entry and enforcement of the judgment, and as to adverse parties his authority continues unabated, but client may retain another attorney for purpose of prosecuting an appeal, without necessity of any formal substitution. Rules of Civil Practice, rule 56; Civil Practice Act, Sections 99, subd. 3, 240, 612.
“4. Statute declaring that if an attorney dies, is removed or suspended within time fixed by law to take an appeal, without having served notice of appeal, such notice may be served within sixty days from date of death, removal or suspension, did not apply to situation in which client discharged attorney following trial, but before signing an entry of judgment, and did not extend the time to appeal when removal at any events occurred prior to service on attorney of copy of judgment, thereby commencing the time fixed by law for taking the appeal. Rules of Civil Practice, rule 56 Civil Practice Act, Sections 99, subd. 3, 240, 612.”

Concerning the question raised by defendant that the judgment was rendered by the New York court subsequent to receipt by that court that the relationship of attorney and client no longer existed between defendant and Attorney Barnes and Section 240 of the New York Civil Practice Act it is stated in the case of Hendry v. Hilton, supra, that:—

“Obviously, the purpose of the statute, civil Practice Act, Section 240, is to afford a litigant, who has, through no act or fault of his own, been deprived of the services of his counsel, a reasonable opportunity to obtain new counsel before further proceedings are taken against him in the action. That purpose is fully subserved if the application of the statute be confined to causes which, as to the client, may be said to arise from a force majeure or one over which he has no control. A client’s voluntary discharge of his attorney is plainly not such a cause.
“It may be noted that in a comparatively recent decision, Thomas v. Thomas, 178 Misc., 394, 34 N. Y. S. (2d) 320, a contrary view is expressed. It was there held that an attorney’s discharge by a client is a removal or disability within the purview of the statute. Civil Practice Act, Section 240. For the reasons already assigned we do not subscribe to that view.
“If- section 240 may not be invoked by the defendants, then it follows that the service of the copy of the judgment with notice of entry upon their original attorney on July 10, 1953, was valid. Until an attorney of record is discharged in the mode prescribed by law, Rules Civil Practice, rule 56, that is, by order of the court or by stipulation signed by the attorney and the client, the attorney is authorized to act for all purposes incidental to the entry and enforcement of the judgment; as to the adverse parties his authority continues unabated. Ohlquist v. Nordstrom, 143 Misc. 502, 257 N. Y. S. 711, affirmed 238 App. Div. 766, 261 N. Y. S. 1039, affirmed 262 N. Y. 696, 188 N. E. 125, supra; Commercial Bank v. Foltz, 13 App. Div. 603, 43 N. Y. S. 985, supra; Lusk v. Hastings, 1 Hill 656; Miller v. Shall, 67 Barb. 446. Of course, for the purpose of prosecuting an appeal from the judgment the client is free to retain another attorney without the necessity of any formal substitution. Gradl v. Saulpaugh, 268 App. Div. 787, 49 N. Y. S. (2d) 51, and cases cited there and in 70 A. L. R. 836.”

In the case of Gang v. Gang, 171 N. E. 568, it is said:—

“Order of Appellate Division modifying order in special proceeding to compel refund of money received from client is appealable to Court of Appeals as matter of right.
“Appellate Division’s modification of Special Term’s order is assumed modified on error of law, in absence of contrary showing.
“Court of appeals applies to final orders same presumption on reversal by appellate division that is applied to judgments.”

In the case of McCloskey v. McCloskey, 128 N. Y. S. (2d) 24, the court said:—

“This is a motion by plaintiff-wife for an order enjoining defendant-husband from proceeding with the prosecution of his action for divorce instituted by him in the state of Nevada. The moving papers were served upon defendant’s attorneys who had previously appeared for him in the separation action commenced by plaintiff wherein temporary alimony and counsel fee had been awarded, Defendant has defaulted in his payments and is now in arrears. Defendant left the State of New York and went to Nevada where he started his action for divorce against plaintiff by publication. Defendant’s attorneys have appeared specially on this motion contending that this court has no jurisdiction as service upon the attorneys was improper since they no longer represented defendant. This position is not well taken. The motion is part of and incidental to the separation action and plaintiff having shown prima facie that defendant’s alleged residence in Nevada was a sham this court has jurisdiction over the defendant for the purpose of granting injunctive relief based upon the original service of the summons in the separation action. Where the husband has appeared generally in an action for separation brought against him in the courts of this state a notice of motion in which the wife seeks an order restraining the prosecution of a foreign divorce may properly be served upon the attorneys who appeared for him in the separation action. Garvin v. Garvin, 302 N. Y. 96, 96 N. E. (2d) 721.”

It can be said in this appeal in substance concerning defendant, and as applicable, as was said in the case of Durlacher v. Durlacher, 17 N. Y. S. (2d) 643 at 645:—

“The defendant’s claim of unconstitutionality follows this line of reasoning: (a) that since the defendant was not bodily within, or a resident of, the state when the statute was enacted or thereafter, the court could acquire no jurisdiction over him to direct the entry of a personal judgment against him without personal notice, and (b) that the notice provided for by the statute and given him under the order to show cause was not personal and was, therefore, insufficient to confer such jurisdiction. He argues that the jurisdiction of his person obtained when the original judgment of separation was rendered in 1934 does not supply a jurisdictional basis for the money judgment sought upon this application, since such money judgment was only authorized under a statute enacted in 1939. He further argues that to hold the statute constitutional it must be interpreted as applying only either prospectively to judgments entered after its enactment or to defendants who were subject to the sovereignty of the state at the time of its enactment or thereafter. Under either interpretation, says the defendant, the statute will not permit the entry of the judgment applied for here.
“The fallacy of the defendant’s contention lies in the fact that it interprets the statute as providing for the rendition of a new judgment when in fact its only purpose was to furnish a new means of effective enforcement of an old judgment. The statute extended no right to the plaintiff that she did not already have. It added nothing to the defendant’s burden. The judgment entered in 1934 directed the payment of monthly alimony of $833.33, and that direction imposed a binding obligation on the defendant. It was not and could not be affected by his change of residence or by his absence from the jurisdiction. Prior to 1939 the statutory remedies for a failure to comply with such direction were sequestration and contempt proceedings. Section 1171-b added another statutory remedy, to wit, enforcement by execution. That that was its only purpose appears not only from the caption of the section, but from its last sentence.”

I conclude that the judgment of the trial court was sound and free from error prejudicial to defendant and in any of the respects urged by him in his assigned grounds of error quoted supra. Accordingly the judgment of the trial court must be affirmed, as my associates have held in a majority opinion.


source: Caselaw Access Project

author: By GOURLEY, Chief Judge.

license: Public Domain

text:
    PFLUGH, Admx., Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
    United States District Court, W. D. Pennsylvania.
    Civ. A. No. 11561.
    Decided February 21, 1956.

      John L. Laubach, Jr., Pittsburgh, Pa., for plaintiff.
    John A. DeMay, Jr., Assistant U. S. Atty., Pittsburgh. Pa., for defendant.
   OPINION

By GOURLEY, Chief Judge.

This federal tort claims action stems from an automobile intersection collision at Ravenna Arsenal, Ohio, which was caused by the joint and concurrent negligence of the plaintiff’s decedent and United States of America.

As decedent was attempting to effect a passing at an intersection, the government vehicle turned to the left without warning into the path of decedent’s vehicle.

Each operator violated the provisions of the Ohio law, which was a proximate cause of the accident. Anderson’s Desk Edition, §§4511.28, 4511.39 R. C.

Since plaintiff’s decedent was negligent, her right to recovery, if at all, must be premised upon the last clear chance doctrine.

The law of Ohio governs. Moran v. Pittsburgh-Des Moines Steel Co. (3 Cir.), 166 F. (2d), 908.

Under Ohio law, the following conditions are prerequisite in order to invoke the last clear chance doctrine.

1. The defendant must see plaintiff and be aware of his perilous position. Cleveland Ry. Co. v. Masterson, 126 Oh St 42, 183 N. E., 873, 92 A L. R., 15.

2. After becoming aware of the plaintiff in a perilous position, defendant must then have had an opportunity to avoid the accident. Cleveland Ry. Co. v. Masterson, supra.

3. The plaintiff’s negligence must not be concurrent with that of defendant. Cleveland Ry. Co. v. Masterson, supra.

I cannot help but conclude that the restrictive conditions imposed by the Ohio courts necessarily exist under the circumstances of the accident:

1. The driver of the Army truck did not see the truck driven by decedent until the instant of collision.

2. The driver of the Army truck had no opportunity to avoid the collision.

3. The negligence of decedent continued to the point of impact and was concurrent with that of the driver of the Army truck in causing the collision.

I am, therefore, compelled to And that the last clear chance doctrine has no application to this proceeding and that judgment must be entered in favor of the United States.


author: By BADER, J.:

text:
    CARPENTER, Plaintiff, v. DAWSON, Defendant.
    Common Pleas Court, Hamilton County,
    No. A-140816.
    Decided March 18, 1954.
    George Rallis, Wendall Sullivan, for plaintiff.
    Rendigs, Fry & Kiely, Don Burkholder, for defendant.
   OPINION

By BADER, J.:

A motion has been filed in this case to require plaintiff to submit to a physical examination. It was announced in open court that the plaintiff had no objection to the examination provided he was supplied with a copy of the examining physician’s report.

It appears to the Court, under the circumstances and facts as presented, that the defendant has a right to have the plaintiff undergo a reasonable physical examination with the right of the plaintiff to have his physician and counsel present at and during the examination.

The report, including findings and conclusions of the examining physician, is made at the instance of counsel for the defendant in preparation of his defense and for the defendant’s benefit, and as such, the report itself becomes confidential as far as other parties are concerned.

The relationship of the plaintiff and the examining physician under the present set of facts is not confidential and the examining physician would be subject to having his deposition taken at the instance of the plaintiff if the plaintiff desired to do so. (N. Y. Central Road Co. v. Wiler, 124 Oh St 118; Hayward v. Estridge et al, Hamilton County Common Pleas Court Case No. A-95693.)

Accordingly, the plaintiff will be directed to submit to a reasonable physical examination by a competent physician.


author: By THE COURT.

text:
    STATE, ex rel. BEDNARIK, Petitioner, v. ALVIS, Warden, Respondent.
    Ohio Appeals, Second District, Franklin County.
    No. 4611.
    Decided June 10, 1952.
    Joseph Bednarik, Columbus, in his own behalf.
    Hon. C. William O’Neill, Atty. Geni., L. H. Snyder, Asst. Atty Geni., Columbus, for respondent.
   OPINION

By THE COURT.

This is an original action in Habeas Corpus wherein the petitioner is seeking his release from the Ohio Penitentiary upon the following grounds:

1. Petitioner contends that the court committed prejudicial error in admitting an illegally obtained confession as evidence.

2. Petitioner contends that a prompt hearing at the time of his arrest was denied him; that an apportunity to obtain legal counsel was also denied him by the Campbell, Ohio, police officers at the time of arrest.

3. Petitioner contends that the verdict was manifestly against the weight of the evidence and contrary to law.

4. Petitioner contends that the court committed prejudicial error in ordering a joint trial of defendants.

The first, third and fourth specifications relate to errors committed by the trial court and which may not be reached in a habeas corpus proceeding. In re Stewart, 156 Oh St 521; In re Burson, 152 Oh St 375; In re Pullins, 155 Oh St 171; In re Ames, 155 Oh St 184.

As to the second ground, the record reveals that the petitioner was indicted on January 28, 1947, and that on February 4, 1947, counsel was appointed and did represent him. It appears that the petitioner is urging that his constitutional rights were violated because counsel was not appointed for the preliminary hearing before the Mayor of the City of Campbell. Sec. 13439-2 GC makes no provisions for the appointment of counsel at this stage of the proceeding, but provides only for the appointment after the serving of the indictment or opportunity has been had for receiving it. Under this section the appointment was seasonably made and the petitioner was not denied any of his constitutional rights. The petitioner in his brief says that he was denied counsel and a prompt hearing before the Mayor. The record does not support such a charge, but even if true, it would only be an irregularity in the preliminary proceeding, before indictment, and which could not be reached in a habeas corpus proceeding.

The application will be denied.

HORNBECK, PJ, WISEMAN and MILLER, JJ, concur.


author: By HARTER, J.

text:
    WESTERN AND SOUTHERN LIFE INSURANCE COMPANY, Plaintiff, v. HAGUE, Admr., Defendants.
    Common Pleas Court, Franklin County.
    No. 194158.
    Decided October 20, 1956.

      Wright, Harlor, Purpus, Morris & Arnold, Alexander, Ebinger and Wenger, Vorys, Sater, Seymour and Pease, for interpleading insurance companies.
   OPINION

DECISION IN FAVOR OF ADMINISTRATOR AND AGAINST FORMER WIFE OF INSURED DECEDENT—AS PER OPINION.

By HARTER, J.

While an examination of the foregoing caption would tend to indicate that a relatively complex situation, both on the facts and the law, was presented in these cases, actually the problems are relatively simple.

The four named insurance companies brought the following respective sums into court by interpleader:

Western and Southern Life Ins. Co.---------------$2,018.51

Metropolitan Life Ins. Co. ________________________2,019.81

North American Life Ins. Co. ___________________ 1,000.00

Equitable Life Assurance Soc.______________________ 5,020.46

By the “Orders of Interpleader,” this Court required that Joseph R. Hague, as administrator of the estate of Edward O. Davis, deceased (who was the named insured in each of the four policies) and Alkie Carter (who was named as beneficiary in each policy under variations of the name of “Alkie C. Davis,” his wife) appear and maintain their respective claims to the proceeds of the policies.

There was no change of beneficiary made between the date of the divorce (October 3, 1955) and the date of the named insured’s death (October 13, 1955).

The two parties, Hague, as Administrator, and Alkie Garter, did appear, filed their pleadings and then, separately, moved for judgment in their respective favors. There is no disputed question of fact; the whole problem is one of law.

The whole problem revolves around one paragraph in the Separation Agreement which, after being executed by the named insured and Alkie Carter, was found by the Court of Domestic Relations (which granted the divorce) to be “fair, equitable and just” and was, by such Court, “made a part of this Decree.” The material paragraph reads;

“9. The said Alkie Davis hereby waives and releases all of the right, title and interest, including her right of dower, in any and all property, whether real or personal, now owned by the said Edward O. Davis, or of which he may become the owner in the future, or of which he may die possessed, and it is clearly understood that she shall be solely liable for any and all debts and obligations hereafter incurred by her.”

Did this language of the Separation Agreement, as adopted into the Divorce Decree, bar the divorced wife from receiving the proceeds of the four life insurance policies in which she was, admittedly, still named as the beneficiary at the time of the named insured’s death? This Court believes that upon reason and authority, Alkie Carter’s rights are barred, and that the deceased’s estate should be entitled to all of the proceeds of the policies.

We will explain our position. In the first place, it is abundantly clear that Davis, the decedent, retained all of the incidents of ownership, including the right to change beneficiaries, of these four policies.

The Western and Southern policy provided: “Any beneficiary or contingent beneficiary may be changed from time to time prior to surrender, maturity or expiration * * *.” Mechanical steps for effecting such change of beneficiary are also provided by the policy.

A comparable provision is found in the Metropolitan policy in thig language:

“A new designation of Beneficiary or a new designation of contingent Beneficiary may be made by the person or persons entitled to do so (see Provision 1) with or without reserving the right of change thereafter * *

When reference is made to “Provision 1,” we are, in turn, directed to the face of the policy where the recital is expressly made that “The right on the part of the Insured to change the beneficiary is reserved.”

The North American policy recites: “The insured * * * may, while the policy is in force designate a new beneficiary * *

The final policy, that of the Equitable, provided the “Owner may change the beneficiary from time to time prior to the death of the Insured, * * *.” The policy form used by the Equitable leaves much to be desired from the stand point of clarity in expressly differentiating between the “owner” and the named “Insured,” but, by examining the photostatic copy of the “application” which is made a part of the policy, we find that the decedent applied for a policy which would provide “with the right to change the beneficiary, the right to assign the policy, and the other ‘Policy Rights’ reserved to me.” Since this was his “offer” and the policy was issued pursuant to that “offer,” we believe this Court should read the policy and the offer together and conclude that Davis was, in fact and law, its “owner.”

Under these policy provisions, and but for the ninth paragraph of the Separation Agreement, we would have no hesitancy in applying the general rule that “the rights of the beneficiary in an ordinary life insurance policy, including the right to receive the proceeds thereof upon maturity of the policy, are in no way affected by the mere fact that the parties are divorced subsequent to the issuance of the policy” (The quoted language is from 29 American Jurisprudence, page 977).

Again, however, we must return to the recitals of the ninth paragraph of the Separation Agreement because there is a well recognized exception to the general rule, just stated—the exception is that “the rights of the beneficiary to the proceeds of a policy upon the life of a divorced spouse may be terminated * * * by an agreement of the parties which may be reasonably construed as a relinquishment of the spouse’s rights to the insurance * * *” (This quoted language is from 29 American Jurisprudence, Volume 29, page 978.)

The older cases supporting this exception are fully annotated in 52 A. L. R. 400, 59 A. L. R. 172, and 175 A. L. R. 1230. No useful purpose would be served by setting forth a review of those cases in this opinion. The annotations may be examined. Suffice it to say, the exception is well supported by authority.

To appraise, specifically, the language of the Separation Agreement, Alkie Davis waived and released her right, title and interest in all real and personal property “now owned by the said Edward O. Davis.” Our problem is: Were the insurance policies “owned” by Davis on the date the Separation Agreement was executed? We think they were. Had the husband wished to cash-in his policies that day, he could have done so without the consent of Alkie Davis. Had he wished to obtain paid-up insurance (for a lesser amount than the face of each policy) he could have done so that day without the consent of Alkie Davis. Had he desired to change beneficiaries that day, he had a right, clearly granted to him, not to her to do so without her consent or cooperation.

The confusion in approaching the problem of what rights an insured person has in the policies of insurance upon his life grows out of the fact that the policy contract, itself, provides for the distribution of policy proceeds. It is unlike most contracts as to which the statutes of “descent and distribution” or “administration of estates” dictate the method of distribution. Actually, a policy of life insurance is merely a chose-in action; choses-in-action are “owned” by the person having title to them just the way he owns his other chattels. He may do with them as he pleases without the leave or consent of any other party. Should he die, his estate succeeds to his ownership of his choses-in-action just the way the estate succeeds to the ownership of his other chattels.

The beneficiary named as his designee to receive the proceeds upon his death will, of course, normally collect such proceeds; however, if that designee has barred herself from collecting such proceeds by her own voluntary act, an act performed before her rights became vested, she cannot collect, and the proceeds should go directly to the owner’s administrator. Technically, it might be possible that the beneficiary should recover the proceeds and hold them in trust for the administrator, but no court should require such a round-about solution to the problem when all the parties can be bound by an order in a single law suit.

Both parties who now seek recoveries of the proceeds of these four policies rely upon the same decision of the Montgomery County Court of Appeals as the basis for their respective claims. One or the other of the parties is wrong in their interpretation of that case. The case in question is Hergenrather v. State Mutual Life Insurance Co. (1946), 79 Oh Ap 116, 68 N. E. (2d) 833. The language of the Separation Agreement involved in that case was significantly different from that of the one here involved. The significant difference was in a barring of rights “which may come in any manner, arise or accrue, by virtue of said relationship (as husband and wife) * * Our Court of Appeals there used this language:

“Did the separation agreement by its terms operate as a relinquishment of her rights to the proceeds of the policy? We do not think so. Her right did not ‘come in any manner, arise or accrue by virtue of said relationship’ as provided in the separation agreement. Her right did not arise out of the relation of husband and wife. True, she was his wife at the time the policy was issued and this fact undoubtedly was the reason why she was named as beneficiary, but her property interest in the policy did not arise out of the marriage relation. * *

There is a further significant differentiation in that Hergenrather case in that the Court there said “There is no allegation in the pleadings to indicate whether the insured reserved the right to change beneficiaries.” In our case, as heretofore expressly detailed, each policy authorized Davis to change beneficiaries.

How are the two clauses so radically different in the results which flow from their application to substantially identical fact patterns? In our Davis case, the release was as to “any and all property, whether real or personal, now owned by the said Edward O. Davis * * In the Hergenrather case, the release was as to “any and all rights or claims by way of death, inheritance, descent * * * and all rights or claims as widow, widower, heir, distributee, survivor or next of kin, and all other rights or claims whatsoever in or to the estate of the other * * * whether now owned or hereafter acquired which may come in any manner, arise or accrue, by virtue of said relationship. * * *”

In the two clauses, the approach is different. In ours, the parties were dealing with all their property; in the Hergenrather case, they were dealing only with such property as came from, arose or accrued by virtue of the marriage. The latter approach is obviously a much narrower one than was the case in our Davis separation agreement. Had the Davis language contained the “arising from the marriage relationship” limitation, the conclusion in this Davis case would have been identical to the Hergenrather result; without such words of limitation, the case must, as we see it, be decided the other way.

The case of John Hancock Mutual Life Insurance Co. v. Soluri (Wash. 1955) 283 P. (2d) 119, is one of the most recent, well-reasoned opinions on the problems inherent in the present litigation. It brings the various California cases into proper focus. It recognizes that, because of different language in each separation agreement or divorce decree, and different collateral facts, each case must be decided on its own facts. Its basic rules are applicable to our Davis facts, and, in this Judge’s opinion, require a decision in favor of the Davis estate, and against the divorced wife.

The Journal Entry on this ruling may, of course, reserve exceptions to Alkie Carter.


author: By MILLER, PJ.

text:
    SPRIGGS, Admrx., Plaintiff-Appellant, v. DREDGE, Admr., Defendant-Appellee.
    Ohio Appeals, Second District, Clark County.
    No. 524.
    Decided November 8, 1955.
    Herman O. Abele, George M. Winwood III, Springfield, for plaintiff-appellant.
    William E. Bailey, Cole & Cole, Springfield, for defendant-appellee.
    (CONN, J, of the Sixth District, sitting by designation in the Second District.)
   OPINION

By MILLER, PJ.

This is a law appeal from a judgment of the Common Pleas Court sustaining the defendant’s motion for a judgment on the pleadings. The facts pertinent to the issues are all admitted by the pleadings and may be briefly stated. The action was instituted by Thelma H. Spriggs as Administratrix of the Estate of Roy Spriggs, Deceased, who along with the defendant’s decedent, A. Blee Dredge, was involved in an automobile accident on highway 241 in the State of Alabama on August 24, 1951. The defendant’s decedent was fatally injured in the accident and plaintiff’s decedent received injuries from which he died on August 30, 1951. A recovery is sought for the wrongful death.

The question presented is whether under the laws of the state of Alabama the cause of action survived the defendant’s decedent’s death and could be maintained against his personal representative. The laws of the state of Alabama must be applied to the relief sought in this state. Sec. 2125.01 R. C. provides:

“When death is caused by a wrongful act, neglect, or default, in another state, territory, or foreign country, for which a right to maintain an action and recover damages is given by a statute of such other state, territory, or foreign country, such right of action may be enforced in this state. Every such action shall be commenced within the time prescribed for the commencement of such actions by the statute of such other state, territory, or foreign country.”

It appears that at the time the cause of action arose, to wit, on August 24, 1951, there was in effect in said state Title 7, Section 123, of the Code of Alabama, which provided:

“A personal representative may maintain an action, and recover such damage as the jury may assess in a court of competent jurisdiction within the state of Alabama, and not elsewhere for the wrongful act, omission or negligence of any person or persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, if the testator or intestate could have maintained an action for such wrongful act, omission or negligence, if it had not caused death. Such action shall not abate by the death of the defendant, but may be revived against his personal representative; and may be maintained, though there has not been prosecution, or conviction, or acquittal of the defendant for the wrongful act, or omission, or negligence; and the damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions. Such action must be brought within two years from and after the death of the testator or intestate.”

There was also in effect at said time Title 7, Section 150 of the Code of Alabama, as follows:

“Actions survive to and against representative.—All actions on contracts, express or implied; all personal actions, except for injuries to the reputation survive in favor of and against the personal representatives.”

The foregoing section was amended, however, on September 5, 1951, to read as follows:

“All actions and causes of action on contract, express or implied, and all personal actions, except for injuries to the reputation, survive in favor of and against personal representatives; and all personal causes of action survive against the personal representative of a deceased tort feasor.”

It clearly appears that under this amendment the action could be maintained if it applied to all actions instituted after its effective date, but it is urged by counsel for the defendant that it may not be given such application for the reason that it is not remedial in character but relates to substantive law. It is conceded by all of counsel that if the amendment relates only to the remedy by which a given right might be enforced, it could be applied to the case at bar. It seems to be further conceded that if it creates new substantive rights it may not be given retrospective effect unless it is so provided in the enactment. The trial court was of the opinion that the amendment was substantive rather than remedial and since it contained no expression of intention to make it retrospective that it could have no application to the facts in this case. We are in accord with this conclusion for the reason that the courts of Alabama have held on several occasions prior to the effective date of said amendment that a tortfeasor’s wrongs died with him and that no cause of action existed against the decedent’s estate. In Wynn v. Tallapoosa County Bank, 168 Ala. 469, the Court held in the syllabus:

“48. In the absence of a statute the estate or property of decedent cannot be held liable for the torts or wrongs which are buried with decedent’s body, and there being no such statute in this state, providing for the survival of such causes of action, actions therefor do not lie against a personal representative.
“49. At common law not only the cause of action but the action itself dies with the person of the perpetrator of a tort or a wrong.”

In Webb v. French, 228 Ala. 43, 152 So. 215, the Court held:

“1. Where plaintiff’s decedent was killed in an automobile accident in a car driven by defendant’s decedent, who died shortly thereafter (before any action was commenced) and who was allegedly intoxicated, plaintiff had no cause of action, either under the homicide statute or the statute relating to intoxicating liquors.
“2. Statute providing that actions shall not abate by death of the parties and may be revived in favor of and against personal representatives does not keep alive the right of action so that suit may be brought in the first instance against the executor or administrator of the estate of the deceased tort feasor.
“3. Death actions are statutory.”

Now, if no right of action existed against a tortfeasor prior to the amendment of September 5, 1951, and the amendment created such a right, it appears to this Court that it relates to a substantial matter and creates a substantial right. It therefore is not remedial in character. With reference to the effective date of such an enactment it is stated in 16 Am. Jur. Sec. 58, p. 44:

“Statutes giving a right of action for wrongful death or changing the rights of the parties in regard thereto form no exception to the well-settled rule that a statute will not be given a retroactive effect by construction, unless the legislature has so explicitly expressed its intention to make it retroactive as to leave no reasonable doubt thereof. Indeed, where the Constitution of a state prohibits retrospective laws touching civil rights, retrospective statutes extending the right of recovery in actions for injuries resulting in death to additional cases are void, since they affect not the remedy, but the substantive rights of the parties. On the other hand, if the statute merely relates to modes of procedure, it is not within a constitutional inhibition against retrospective legislation. In fact, newly enacted wrongful death statutes are frequently held to apply to pending actions, where they affect only the mode of procedure, and not the substantive rights of the parties.”

In examining Title 7, Section 150 of the Code prior to the last amendment it will be observed that it provides for the survival of certain actions “in favor of and against the personal representative,” but it makes no provision for causes of action, which is included for the first time in the amendment of September 5, 1951, to wit:

“All actions and causes of action on contract, express or implied, and all personal actions, except for injuries to the reputation, survive in favor of and against personal representatives; and all personal causes of action survive against the personal representative of a deceased tort feasor.”

The word “action” is defined in the case of Wynn v. Tallapoosa, supra, at page 490, to wit:

“The Latin word ‘actio,’ as used in the civil law, meant both the proceeding to enforce the right and the right itself.—Rapalje’s Law Diet. But the English word ‘action,’ derived from it, was never given that dual meaning in the English common law, nor in our common law. It is defined by Rapalje as ‘a civil proceeding taken in a court of law to enforce a right.’ Coke defines it as ‘the form of a suit given by law for the recovery of that which is one’s due; the lawful demand of one’s right’ (Co. Litt. 285). Blackstone, as ‘the means by which men litigate with each other’ (3 Black, Com. 116, 117). Bracton, as the act of three parties, the plaintiff, the defendant, and the court.—People v. Colborne, 20 How. Prac. (N. Y.) 378, 380. The courts of Tennessee, Mississippi, New York, Pennsylvania, Maine, New Hampshire, and Iowa, and many others, as well as the Supreme Court of the United States, have all practically defined it, like the above authors, as a demand for or a presentation of one’s rights in a court of justice.—* * *
“There are a great many more authorities cited in Words & Phrases (volume 1, p. 128 et seq.), to practically the same effect. We only cite these to show that our statute as to the survival of ‘actions’ does not include ‘causes of actions,’ or ‘rights of action.” Our statute on the subject is as follows, Code, Sec. 2496: ‘All actions on contract, expressed or implied; all personal actions, except for injuries to the reputation, survive in favor of and against the personal representatives.”

In giving application to the terms “action” and “cause of action” as expressed supra, we conclude that since there was no action pending at the time of defendant’s decedent’s death, there was nothing to survive prior to the amendment and said amendment may not be given retrospective effect.

We find no error in the record and the judgment will be affirmed.

HORNBECK and CONN, JJ, concur.


author: By CROSSLAND, J:

text:
    JOSEPH, Disbarment Proceedings, In re.
    Common Pleas Court, Muskingum County.
    No. 36430.
   OPINION

By CROSSLAND, J:

After careful study and full consideration of all the evidence received pursuant to the within application of Thomas A. Joseph for reinstatement to the profession and practice of law, including the appearance and demeanor of the applicant as a witness in his own behalf, the Court proceeds upon the premise of law predicate thereto in its analysis of the evidence, its findings therefrom and its conclusion thereto.

When a man is found guilty of a felony and confined in a penitentiary the law indulges the presumption, in most cases, that he will become eligible for parole, be released, then discharged and finally restored to full citizenship. But when a lawyer is found guilty of unethical practices involving moral turpitude, including criminal conviction and imprisonment, and is disbarred for life, the presumption of the law is that he will not be readmitted to the profession and practice of law unless he proves that his incidental personal desire is manifestly in the public interest with respect to the right administration of justice.

Punishment for the commission of crime is both punitive and as a deterrent to other potential and uncommitted crime. Disbarment, however, is not individual punishment or the imposition of a personal penalty. It is public protection from unethical practitioners who have disregarded or violated the solemn trust and confidence reposed by the license granted for character and competence in undertaking professional service in public courts and office privacy.

“On an application for reinstatement by one who has been removed from the bar, the sole question to be determined is whether the granting of his application would probably be promotive of the right administration of justice.” (In Re Thatcher, 83 Oh St 246, 1st syllabus.)

In the above case, on page 249 of its opinion, the Ohio Supreme Court stated:

“So often and so clearly have courts pointed out that in proceedings of this character the punishment of the offending lawyer is neither involved nor considered that repetition is not necessary—The general question is, will the public interest in the orderly and impartial administration of justice be conserved by his participation therein in the capacity of an attorney and counselor at law?”

Much more recently, in In Re Lieberman, 163 Oh St 41, decided March 9, 1955, the Supreme Court said:

“The purpose of disbarment is not to punish the individual. It is intended to protect the public, the courts and the legal profession.”

The responsibility of a disbarred lawyer for the acts occasioning his disbarment are his alone, entered upon deliberately at his own risk, in full knowledge and broad daylight of its stated consequences. Upon application for reinstatement all factors pertaining to the applicant’s disbarment, as well as his representations for reinstatement, are necessarily fully before the Court for review, in explicit fulfillment of the Court’s vested responsibility for primary consideration of the right administration of justice, the high calling of the law as a profession and complete subservience to the interest and protection of the general public.

That matters related to the disbarment, as well as professions of future conduct, are relevant and material, is recognized generally by the courts and a course of conduct corruptive of others is always of particular concern in a reinstatement proceeding.

“Little less than absolute assurance of a complete change of moral character is necessary to warrant reinstatement of an attorney disbarred for bribing a juror.” (In Re Keenan [Mass.] 50 N. E. 2nd 785, 6th syllabus.)

In the case of Peart v. Jones, 159 Oh St 137, decided March 18, 1953, our Ohio Supreme Court adopted an extremely serious view of this applicant’s proximity to attempted corruption, in its comment upon the personal presence of the same Thomas A. Joseph at the time a bribe offer was made to a juror by a restaurant proprietor, in the following language on page 142 of the opinion; to-wit,

“Some time prior to the trial of this case George Bryan was found guilty of attempted bribery of two witnesses in connection with the trial of one Thomas A. Joseph, an attorney. Bryan was then acting in behalf of Joseph. Peart, the plaintiff herein, was taken to the hospital immediately after the incident which gave rise to this cause. Joseph promptly appeared at the hospital in behalf of Peart and saw Peart in the hospital three or four times. Joseph was present in the truck-stop restaurant when Bryan offered the bribe to Mrs. Kinnan. In view of these facts we can not agree with the Court of Appeals and plaintiff’s counsel who characterize Bryan merely as a ‘meddlesome stranger’ or ‘meddlesome outsider.’ ”

Individual expressions and opinions, however sincere and worthy, are no substitute for probity of knowledge and facts concerning past and prospective professional behavior and conduct and do not obviate or determine judicial judgment and decision. A disbarred lawyer may appear personally appealing to an acquaintance, neighbor, friend or private or public officer or employe and yet reveal to that person absolutely nothing concerning professional fitness, the qualities for which mostly lie beneath surface indications and ordinarily are not discernible to superficial outside obsei’vation.

The judge of this Court has the utmost sympathy for the personal plight of Thomas A. Joseph. But it would be a dereliction of public duty to allow ones-self to be swayed or controlled by another’s personal predicament at the expense or sacrifice of public welfare.

“The effect of a judgment of disbarment will not be lightly set aside, and a mere sentimental belief that the erring lawyer has been punished enough does not justify his reinstatement, as the Court, on a petition for reinstatement, has a solemn duty to the legal profession and to the public which must be performed without regard to feelings of sympathy.” (7 C. J. S. 815, Section 41a.)

Mr. Joseph was disbarred for very considerable cause, lengthily and extensively accumulated, vehemently denied and vigorously defended, he himself testifying therein without restraint of truth, afterward admitting wholesale perjury by himself in his own defense, although not until sharp and insistent cross-examination at this very reinstatement hearing, experiencing no occasion to admit or acknowledge wrongdoing until inescapably compelled to do so. Profession of reformation is thus refuted rather than proved.

When the established guilt of subornation of perjury before disbarment is followed by positive and direct perjury in trying to escape disbarment, not admitted or acknowledged until reinstatement hearing some time afterward, is it not expediency rather than principle, self-interest instead of public interest, that actuates and dominates the mind and purpose of such person?

Previously the Courts could not and would not condone or excuse the wrongful practices and precepts which Mr. Joseph perpetrated deliberately upon trusting and innocent victims of greedily conceived pervarication, falsification, rascality and criminality. These people were shamefully and ruthlessly exploited, a public wrong in the recorded annals of the administration of justice. The evidence was overwhelming and conclusive but it was all denied. There was no admission or acknowledgement of wrongdoing. On the contrary, there was a personal, perjured defense, as calculated and deliberate as the misconduct and crimes of moral turpitude that provoked disbarment in the first place.

How can protestation of reformation be believed or relied upon in the fact and face of dilatory and reluctant truthfulness?

Will the public wrong of a deliberately despicable assault upon the delicately balanced scales of justice in the practice of the honorable profession of the law be righted, in the public concern of regard and respect for the faithful administration of justice, by making a sacreligious mockery of the elemental duty of a sworn witness to tell “the truth, the whole truth and nothing but the truth,” answerable to God, in a court of justice, by acting favorably upon the application for readmission of one who reaches no higher in his professional aspiration than only to consider and calculate the value of his answers to his immediate personal purpose, first, to avoid disbarment, and second, to effect reinstatement?

For the reasons hereinafter related this Court is unable to conclude that the applicant can safely be entrusted with helping safeguard the public interest in administering justice in accordance with established and accepted professional principles and practices.

To say “No” is not easy or pleasing. One feels pretty much alone at such times. And there may be many, judges among them, who would disagree with this Court’s conclusion. It was suggested at the very time that Mr. Joseph was committing new perjury in the disbarment trial and emphasized and re-emphasized by his counsel in this proceeding that inasmuch as Mr. Joseph was and is a young man he should be given another opportunity if he shows that he understands his responsibilities as a lawyer. What greater responsibility has anyone, lawyer or layman, than to seek, reveal and acknowledge the truth willingly and voluntarily? What greater confidence is there upon which courts can rely and justice prevail than that of the ascertainment and assertion of fact and truth? Wherein lies justice if it cannot begin and conclude with the truth, as nearly as it is humanly ascertainable, particularly with God’s help, invoked in the oath of a witness sworn to tell the truth, the whole truth and nothing but the truth?

Similarly, a court must understand, apply and discharge its paramount responsibility to require and enforce truth and truthful judgment or else trust and confidence in government itself will fall apart at the foundation seams.

Veracity is the cornerstone of virtue and virtue is the heart of integrity. Without integrity little else matters.

It is not sufficient in the profession and practice of law, as Mr. Joseph suggested in this hearing, that he merely lend himself to an appeal or reference in any questionable matters heretofore or hereafter arising. It is strictly incumbent upon a practicing lawyer that he be fully qualified to be entrusted privately with unquestionable rectitude, so that his every action and conduct be ethically correct in its original occurrence. The concern of clients and of all other affected persons, whether in or out of litigation, should proceed from a solid promise of unquestionable integrity at the very outset, without resort to censorship. Responsibility is not delegated or conditioned. It is accepted and performed or it simply does not exist. It is an intangible but none the less integral and basic qualification, not expressed in words but performed by deed and conduct implicit in the professional life and habit of the individual lawyer.

This Court simply cannot say that it has an abiding confidence in the inherent integrity of Thomas A. Joseph or that he can be entrusted with the personal and professional responsibility of helping protect and safeguard the public interest with relation to the right administration of justice.

The Court of Appeals of our neighboring state of Kentucky, in In Re Stump, 114 S. W. 2nd, 1094, in the language of its opinion on page 1097, has stated the rule of a reasonable burden upon an applicant for reinstatement, as follows:

“The malpractice of one reflects dishonor not only upon his brethren, but upon the Courts themselves, and creates among the people a distrust of the courts and the bar. Therefore, one proven to have violated those conditions of good behavior and professional integrity annexed to the granting of the privilege of practicing law, by applying for restoration, has the burden of overcoming by persuasive evidence the former adverse judgment on his qualification.”

Mr. Joseph has failed to sustain the burden of proof required by law and should not be reinstated.

The exhorbitant exactions procured from the estate and individual heirs in the Miller matter, still sought to be justified in the reinstatement hearing, altogether out of any reasonable proportion to services rendered, were falsely founded on the predicate of a probate court order unjustifiedly prepared, presented and procured, simply because it was obtainable, and bore no semblance of responsible accountability either to the estate or to the heirs, all of whom, estate, heirs and court, were unwitting dupes in avaricious hands, with essential integrity wholly lacking.

The unconscionable handling of the client and her real estate in the Watts matter, protestingly reaffirmed and reiterated in the reinstatement hearing, was an unwarranted, inexcusable and predatory advantage of a frustrated, unhappy and helpless elderly woman, whose temporary marital difficulty, acutely aggravated by Mr. Joseph’s actions, seemingly presented an occasion and opportunuity for unearned enrichment by wanton violation of personal trust, that directly contradicted and repudiated a strictly fiduciary relationship and was outrageously unprofessional in every aspect, including an extortionate charge and collection.

The attempted guise and veneer of artificial respectability sought to be applied by the applicant in the foregoing and other matters around deliberate and purposeful misconduct, at the times of perpetration, at the disbarment trial and at the hearing for reinstatement, were a shameful shambles behind which he sought to find righteous refuge.

Civil actions for separate redress, far from expiating the original sin, simply illustrate the underlying intransigent indisposition of Mr. Joseph to offer restitution voluntarily or even to comply willingly or without capitulation to his own terms, retaining and utilizing every advantage wrongfully secured.

Acknowledgment is made of the able, faithful and forthright presentation, in evidence and argument, by counsel for both applicant and public, all equally actuated by sincere and earnest belief and conviction.

Application for reinstatement of Thomas A. Joseph to the profession and practice of law in Ohio is denied, at his costs, and he is granted exceptions thereto.

Payment is allowed and ordered in the sum of One Hundred Dollars ($100.00) to each of counsel in behalf of the public, Donald P. Jones, J. Lincoln Knapp and C. Alfred Zinn.