author: Matthias, J.

text:
    Weenick v. Slutz.

      Judgments — Action to revive — Foreclosure — Claim reduced to judgment, when — Statute of limitations — Sections 11645 and 11648, General Code.

    In a suit to foreclose a mortgage personal service was had on the defendants; the plaintiff in his petition prayed that the amount due him be determined and a decree entered therefor, that the premises described in the mortgage be sold and the proceeds applied on his decree, and that he have judgment against each of the defendants for any balance remaining unpaid. The court found plaintiff was entitled to the relief prayed for, determined the amount due him from the defendants, ordered, adjudged and decreed that the defendants pay the same within five days, and that in default thereof said premises be sold and plaintiff have execution at law against the goods, chattels, lands and tenements of the defendants for any balance remaining unpaid after exhausting said property. Held, the claim of the plaintiff was thereby reduced to judgment, upon which an action in revivor may be maintained if the same be commenced within twenty-one years from the time it became dormant.
    (No. 15803
    Decided June 21, 1918.)

      Error to the Court of Appeals of Portage county.
    This action was instituted in the court of common pleas of Portage county, August 3, 1916, by defendant in error, M. C. Slutz, who' alleged that he was the owner, by assignment, of a judgment recovered in said court on October 10, 1894, against the plaintiff in error and others, and prayed for a revivor thereof.
    An amended petition was thereafter filed in which it is averred in substance that on July 9, 1894, Ransom H. Clark brought an action in said court against the defendants herein, wherein he sought judgment for the amount due him on certain promissory notes, and foreclosure of a mortgage given to secure the same; that on October 10, 1894, a decree and finding was entered in said action in favor of said Ransom H. Clark against the defendants, finding the amount due plaintiff therein to be the sum of $1,441.44, with interest from the 10th day of October, 1894, further finding that the plaintiff was entitled to the relief prayed for in his petition, and ordering that upon failure of the defendants to pay said sum within five days said mortgaged premises be sold by the sheriff upon execution at law, and further ordering and decreeing that the plaintiff have execution at law against the goods, chattels, lands and tenements of the defendants for any balance remaining unpaid after exhausting the mortgaged property; that after applying the proceeds arising from the sale of said premises there remained unpaid $684.56; and that on October 13, 1896, an execution, duly issued, was returned entirely unsatisfied.
    The defendant Mary J. Weenick, plaintiff in error here, by answer asserted that no judgment had been rendered against her in said former proceeding, but that said action was merely to foreclose a mortgage; that the court therein did find the amount due on said mortgage and ordefed the same foreclosed; and that any right of action based upon the decree rendered therein was barred by the statute. Defendant set up separately the statutes of ten years, fifteen years and twenty-one years as a bar to plaintiff’s right of recovery.
    Upon hearing, the court of common pleas found in favor of the plaintiff, defendant in error here, and entered judgment in his favor as prayed, which judgment was affirmed by the court of appeals.

      Mr. A. S. Cole, for plaintiff in error.

      Mr. H. R.' Loomis and Mr. W. E. Llolden, for defendant in error.
   Matthias, J.

If the finding, order and decree in the original proceeding was tantamount to a judgment for a sum of money stated, or ascertainable from the record, against the defendants in that suit, the plaintiff below in this action. was clearly entitled to a revivor thereof by virtue of the provisions of Sections 11645 and 11648, General Code.

The contention of the defendants below (presented by plaintiff in error here) is that in the original proceeding no judgment' was rendered, but only a finding made by the court of the amount due upon the mortgage claim, and a decree foreclosing the mortgage and directing the sale of the premises therein described to satisfy such claim; that this action, therefore, is one only to recover the unpaid balance; and that such action is barred by the statute of limitations. To support this contention counsel relies with much confidence upon the case of Doyle v. West, 60 Ohio St., 438, the syllabus of which is as follows:

“1. In a suit to foreclose a mortgage, there was a finding of the amount due and the usual order of sale, if not paid in a certain time named. There was no prayer for a judgment, and none was rendered, and no order for an execution for any balance that might remain after applying the proceeds. A sale was made and after applying the proceeds, a balance of $102.21 remained. Held, that an action can be maintained on the finding for the recovery of this balance as a debt, evidenced by record.

“2. The statute of limitations was raised by demurrer; and it appearing from the petition that more than seventeen years had elapsed from the application of the proceeds, and no intermediate payments having been made. Held, that under our statute of limitations, the action is barred.

“3. ' Whether the limitation is fifteen, or ten, years, is not necessary to determine in this action; and is left undecided.”

In the petition in that suit, which was instituted in Lucas county, it was set up that in an action to foreclose a mortgage, instituted in the court of common pleas of Ottawa county by West against Doyle, the court found the amount due and made the usual order of sale, and in pursuance thereof the land described in the mortgage was sold, and after payment of costs the remainder of the proceeds was applied to the plaintiff’s claim, leaving a balance unpaid, for which balance the Lucas county action was brought. In deciding that case the court noted as facts worthy of' consideration, and they seem to have in some measure influenced the conclusions of the court, that in the original proceeding the petition contained no prayer for a judgment, that no judgment was rendered, nor was it ordered that an execution issue for any unpaid balance.

In the instant case the action is one for revivor of a judgment, and is brought in the same court as the original action, wherein personal service was had upon the defendant, and in his petition plaintiff prayed not only for a foreclosure of his mortgage and a determination of the amount due him, and a sale of the mortgaged premises to satisfy the same, but prayed further for “judgment * * * against each of the defendants including execution for any balance remaining unpaid after exhausting the property.” In accordance with the prayer of the petition in that proceeding the court not only found the amount due the plaintiff, but thereupon “ordered, adjudged and decreed” that the defendants pay the same together with the cost of suit within five days, and that in default thereof the lands and tenements described in the petition be sold, and, further, that plaintiff have execution against the goods and chattels, lands and tenements of the defendants for any balance remaining unpaid after exhausting said property. Thereafter an execution was issued for the balance remaining unpaid after applying the proceeds of the sale of the mortgaged premises upon the amount found due plaintiff, which was returned unsatisfied.

It is not essential that any prescribed form of expression be employed by a court in the rendition of a judgment to make the same valid and effective. It is to be tested by its substance rather than its form. Although the usual formula is, “it is considered by the court that plaintiff recover from the defendant,” etc., there is no magic in that formula, and any terms may be employed which clearly indicate that the sentence is the judicial act of the court adjudicating the matter in controversy. 23 Cyc., 670.

In this case the situation is precisely the same as if the court, in the original proceeding, after finding the amount due the plaintiff from the defendant upon the claim set up in the petition, had ordered, adjudged and decreed that an execution issue for the entire amount against the goods and chattels, lands and tenements of the defendant. It is not an essential part of the judgment that it authorize, or direct the issuance of an execution; but the finding of the court that a certain sum is due the plaintiff from the defendant upon the claim set up in the petition, whereupon it is ordered, adjudged and decreed that the plaintiff have execution not only against the premises described in the mortgage but against the “goods and chattels, lands and tenements of the defendant” for the satisfaction of the atpount found due him,. is equivalent to a finding and consideration by the court that the plaintiff have and recover from the defendant the amount found due upon his said claim.

The definiteness of expression and concise recital of facts in Doyle v. West, supra, indicate that the conclusion of the court is based' upon the particular facts there set forth, and that it was not intended that it should be extended to cover facts not included in that case.

In the subsequent case of Graham v. Simon, 76 Ohio St., 77, the judge delivering the opinion, in referring to the case of Doyle v. West, supra, said, at page 82: “Our judgment in the case was placed upon the nature of the finding and its deficiencies in the characteristics of a judgment. This clearly appears from the syllabus, whose functions in these reports is well known.”

In the opinion the facts distinguishing that case from the case of Doyle v. West are pointed out, to some of which we have already directed attention as distinguishing the case of Doyle v. West from the instant case. A further distinction, as noted in the case of Graham v. Simon, supra, lies in the fact that the action in the case of Doyle v. West was “for the recovery of a balance of the amount which the court had found to be the indebtedness secured by the mortgage, the finding having been made as the predicate of the decree of foreclosure to subject the mortgaged property, and not afford-, ing to the creditor any executory remedy against the general property of the debtor.”

In the instant case there was a determination by the court, clearly manifested by its finding, order and decree, that the plaintiff recover from the defendants the full amount found due, and he was afforded an executory remedy against the general property of the debtor to satisfy the same.

It appearing therefore that this is an action to revive a judgment, and was brought within twenty-one years from the time it became dormant, the plaintiff is entitled to the relief sought. The judgment of the court of appeals is affirmed.

Judgment affirmed.

Nichols, C. J., Wanamaker, Newman, Tones, Johnson and Donahue, JJ., concur.


source: Caselaw Access Project

author: Newman, T.

license: Public Domain

text:
    The State, ex rel. The Bedford Coal By-Products Co., v. Fulton, Secretary of State.

      Foreign corporations for profit — Franchise fee to secretary of state — Section 184, General Code — Amount based on capital stock, when — Refusal of certificate — Remedies — Mandamus or statutory appeal — Sections 189 and 190, General Code.

    1. A foreign corporation for profit, other than one of those mentioned in Section 188, General Code, which owns and uses all its property and transacts all of its business in the state of Ohio, is required, under the provisions of Section 184, General Code, to pay to the secretary of state a fee of one-tenth of one per cent, upon its authorized capital stock for the privilege of exercising its franchise in this state.
    2. Where such a corporation is aggrieved by the decision of the secretary of state as to the proportion of its capital stock represented by property owned and used and business done in this state, and the sole question for determination is one of law, such corporation may proceed in mandamus to require the secretary of state to make and deliver to it the certificate prescribed by Section 184, General Code.
    (No. 15811
    —Decided June 21, 1918.)
    In Mandamus.
    This is a proceeding in mandamus in which the original jurisdiction of this court is invoked. The question for determination is raised by demurrer to the petition.
    The relator is a corporation organized under the laws of the state of Delaware, with its principal officé located in the state of Missouri, with an authorized capital stock of $600,000, and is authorized by its charter to deal in and develop mineral lands, and buy and sell mineral products, manufacture and refine by-products of coal, tars, oils and allied products, buy and sell and deal in said by-products, purchase and acquire machinery, tools and materials suitable for such purposes, and do and perform every act, work and labor necessary therefor. It is also authorized by its charter to carry on the business in the state of Ohio.
    For the purpose of obtaining a certificate from the defendant, as secretary of state, authorizing it to do business in Ohio, relator presented to him in the form prescribed by him a copy of its charter, and a statement showing the amount of its authorized capital stock to be $600,000, setting forth the business and objects of the corporation in which it proposed to engage and carry on business in the state.of Ohio, designating where its principal place of business was to be located, and naming a person upon whom process might be. served. Relator also presented to defendant in a form prescribed by him a statement under oath that the authorized capital stock of the corporation was $600,000, divided into 6,000 shares of the par value of $100 each; that the value of the property owned and used in the state of Ohio was $400,000; that the value of the property owned and used outside of said state was nothing; and that the proportion of the capital stock of the company represented by property owned and used and by business transacted in Ohio was 66 2/3 per cent.
    At the time of the filing of said statements the relator tendered to defendant the sum of $430 as a fee for the issuing of said certificate. The defendant has refused to accept said amount, and claims the right to collect from the relator the sum of $630; and still refuses to issue the certificate, for the sum of $430, although the relator is ready and willing to pay said amount. It appears that but $400,000 of said stock has been subscribed, issued or paid for.
    The prayer of the petition is that a writ of mandamus issue commanding the defendant, as secretary of state, to issue his certificate authorizing it to do business in the state of Ohio in the manner provided by statute and to accept in full of all fees the sum of $430.

      Messrs. Watson, Stouffer, Davis & Gearhart, for relator.

      Mr. Joseph McGhee, attorney general, and Mr. Wm. J. Ford, for defendant.
   Newman, T.

A foreign corporation for profit, before it transacts business in this state, must first procure from the secretary of state a certificate as required by Section 178, General Code, and must pay Therefor the fee prescribed by Section 180. In the case of the relator, its authorized capital stock being more than $500,000 and less than $1,000,000, the fee to be paid is $30. No question is made as to this and it was included in the $430 which was tendered the secretary of state.

But the relator not being one of the corporations excepted by the provisions of Section 188, General Code, must, also, before it does business in this state, file with the secretary of state, under the provisions of Section 183, General Code, a statement under oath containing the following facts: (1) The number of shares of authorized capital stock of the corporation and the par value of each share; (2) The name and location of the office or offices of the corporation in Ohio and the names and addresses of the officers or agents of the corporation in charge of its business in Ohio; (3) The value of the property owned and used by the corporation in Ohio, where situated, and the value of the property of the corporation owned and used outside of Ohio; (4) The proportion of the capital stock of the corporation represented by property owned and used and by business transacted in Ohio.

It must then pay the fee prescribed by Section 184, General Code, which section is as follows:

“From the facts thus reported and any other facts coming to his knowledge, the secretary of state shall determine the proportion of the capital stock of the corporation represented by its property and business in this state, and shall charge and collect from such corporation for the privilege of exercising its franchise in this state, one-tenth of one per cent upon the proportion of its at* thorized capital stock represented by property owned and used and business transacted in this state, but not less than ten dollars in any case. Upon the payment of such fee the secretary of state shall make and deliver to such foreign corporation a certificate that it has complied with the laws of Ohio and is authorized to do business therein, stating the amount of its authorized capital stock and the proportion of such authorized capital stock represented in this state.”

It is urged by the relator that under the provisions of this section the fee to be paid is $400, whereas the secretary of state insists that $600 is the proper amount.

The relator filed with the secretary of state the statement required by Section 183, supra, from which it appears that its authorized capital stock is $600,000, that the value of the property owned and used in the state of Ohio is $400,000, and that the value of the property owned and used outside of the state is nothing.

It is the contention of relator that since the amount of its capital and property invested and with which business is to be done does not exceed $400,000, and all is in this state, that amount should control in computing the fee. It appears from the petition that but $400,000 of the capital stock of the relator has been subscribed, issued or paid for. In the statement filed with the secretary of state this fact does not appear, nor is it required to be set forth under the provisions of Section 183. We consider this fact wholly unimportant and immaterial in arriving at the amount of the fee to be paid by the relator.

It is to be observed that the fee to be charged and collected is “one-tenth of one per cent upon the proportion of its authorized capital stock represented by property owned and used and business transacted in this state.” This fee is not one-tenth of one per cent, upon the value of the property in this state or of the business transacted therein. It is based upon the proportion of the authorized capital stock represented by property owned ahd used and business transacted in this state.

In the instant case the authorized capital stock is $600,000. All the property of relator and all its business is in this state, and it follows that its entire authorized capital stock is represented by property owned and used in Ohio. There is no property owned and used elsewhere to represent such stock or any part thereof.

In the statement required by Section 183, supra, the proportion of the capital stock of a corporation represented by property owned and used and business transacted in Ohio must be set forth. It is said that this requirement is significant and there could be no reason for requiring a corporation using all its property in this state to report the proportion of the capital represented by the property so used unless only a part of its authorized capital stock was to be considered in determining the fee, and that if the general assembly had intended that a foreign corporation using all its property in Ohio should pay a fee based upon all such stock it would have said so. We do not subscribe to this view. It is to be presumed that a foreign corporation will transact at least some business and own some property outside of Ohio, and the term “proportion” is employed in the section upon that theory. But, if a foreign corporation owns and uses all its property in this state, we can conceive of no reason why it should be chargeable with a less fee than a domestic corporation.

Section 184, supra, is a part of what was originally Section 148c, Revised Statutes, and in Section 148c, as enacted May 16, 1894, 91 Ohio Laws, 272, and as amended 93 Ohio Laws, 225, 94 Ohio Laws, 225, 95 Ohio Laws, 539, and 97 Ohio Laws, 496, this language appeared, “being the same fee required to be paid by corporations formed under the laws of Ohio.” This language was not carried into the General Code, and it is claimed by counsel on both sides that this fact is significant — defendant suggesting that this language in the original act indicated the construction which the general assembly placed upon it, and even though omitted in the General Code the same construction should now obtain, and the relator contending that the omission of this language indicates very clearly that it was not intended that a foreign corporation should pay 'the same fee as that exacted from a domestic corporation. As we view it, the omission of the language is due to the fact that it amounted to an incorrect statement; for it is not true that a foreign corporation in all instances pays the same fee exacted from a domestic corporation, for the amount to be paid by the former is based upon the proportion of its authorized capital stock represented by property owned and used and business transacted in this state, while the amount to be paid by the latter is based solely upon its authorized capital stock, regardless of the amount of business .done in the state.

Counsel for defendant make the further claim in support of the demurrer that the petition does •not show that the relator has complied with the provisions of Sections 189 and 190, General Code, which are as follows:

“Sec, 189. On application, a foreign corporation shall have the right to be heard by the secretary of state in the matter of the determination of the proportion of-its capital stock represented by property used and business done in this state.

“Sec. 190. A corporation aggrieved by the decision of the secretary of state under the preceding section may, within ten days, appeal to the auditor of state, the treasurer of state and the attorney general, whose decision shall be final.”

It is said that this latter section having furnished a remedy for an alleged erroneous assessment of the fee to be paid, relator should have availed itself of its provisions before resorting to this proceeding in mandamus. We do not think this was necessary. The facts in the instant case are admitted, and the question for determination is one of law, viz., what is the proper construction to be given to the provisions of Section 184? This being true, the relator pursued the proper remedy in instituting this proceeding in the courts rather than appealing from the finding of the secretary of state.

Our conclusion is that the amount demanded by the secretary of state in the instant case is the proper one and for that reason the demurrer to the petition is sustained.

Demurrer sustained and petition dismissed.

Nichols, C. J., Wanamaker, Jones, Matthias, Johnson and Donahue, JJ., concur.