Devine v. Detroit Trust Co.
| Decision Date | 04 March 1935 |
| Citation | 52 Ohio App. 446,3 N.E.2d 1001 |
| Parties | DEVINE v. DETROIT TRUST CO. |
| Court | Ohio Court of Appeals |
Clark & Robinson, of Cincinnati, for plaintiff in error.
Leo Weinberger, of Cincinnati, for defendant in error.
On October 30, 1933, Detroit Trust Company, a corporation under the laws of the state of Michigan, instituted an action in the court of common pleas of Hamilton county, as receiver of the Guaranty Trust Company, against Grace A. Devine, to recover the amount of her statutory obligation as a stockholder of Guaranty Trust Company, which had become insolvent. An affidavit in attachment was filed at the same time, averring that under the law of Michigan a stockholder's obligation was contractual and that the defendant was a nonresident. Upon this affidavit certain real estate was attached without a bond being given.
Proper proceedings were taken to serve the defendant with notice by publication. The affidavit for constructive service showed that the defendant resided in the state of Michigan.
On December 18, 1933, the defendant entered a special appearance for the purpose of moving to discharge the attachment on several grounds, to wit, that the court had no jurisdiction of the parties, that the affidavit in attachment did not set forth a ground for relief recognized under the laws of Michigan, that a bond was required as a prerequisite for attachment, that citizens of Ohio were forbidden to seek this relief in foreign jurisdictions, that the laws of the state of Michigan do not afford such relief to nonresidents, and that the cause sued on did not arise out of contract. The defendant filed an affidavit in support of her motion averring that she owned certain real estate in Detroit Mich., but stated nothing as to its value. A counter affidavit was filed to the effect that there was a mortgage for $250 on the real estate, and that it had no value beyond the incumbrance. Conflicting affidavits were also filed as to the ability to get service upon the defendant in Michigan according to its laws. Upon hearing, the court overruled the motion to discharge the attachment.
On May 17, 1934, the plaintiff served the defendant in Detroit Mich., with written notice that depositions would be taken at a designated place in that city on the 25th day of May, 1934. The depositions were taken and filed in the cause on June 4 1934, the defendant not having appeared at the taking of the depositions.
On May 31, 1934, the plaintiff filed a motion for judgment by default.
Upon June 12, 1934, the case came on for hearing on the motion for a default judgment; the defendant having been given sufficient notice by registered mail. At this hearing the attorney for the defendant appeared and took some part in the proceedings, but disclaimed any intent to enter a general appearance for the defendant. Evidence was presented and judgment rendered for the plaintiff.
At the hearing on default, the defendant's attorney objected to the reading or introduction in evidence of the deposition, on the ground that the law made no provision for service of notice outside of the state of the taking of depositions. This objection was overruled. After the court had heard the evidence and announced that judgment might be entered for the plaintiff, the defendant's attorney stated to the court that the defendant had several defenses. He was directed to present them. He then stated that the plaintiff had not sued the other stockholders, which the court ruled was no defense. Defendant's attorney then asked leave to file an answer, which leave was refused, and at this hearing defendant's counsel also called the court's attention to the fact that security for costs had not been given.
The judgment entry was made on June 12, 1934, and on July 5, 1934, the petition in error was filed herein to secure a reversal of the actions of the trial court.
The parties here are at all times referred to by their positions in the trial court.
The defendant filed a bill of exceptions on July 9, 1934, in which are set forth the proceedings and evidence upon the default, the substance of which has been given, and this bill of exceptions was later filed in this case in this court.
The first contention is that the attachment was defective for the reason set forth in the motion to discharge it. At the outset it should be observed that there is no proof in the record of the law of Michigan. As the law of another state is a matter of fact in the courts of this state, of which we do not take judicial knowledge (Louisville & Nashville Ry. Co. v. Greene, Adm'x, 113 Ohio St. 546, 149 N.E. 876; 17 Ohio Jurisprudence, 50, § 24), we cannot assume that such law is different from the law of this state (Mendelson v. Mendelson, 123 Ohio St. 11, 173 N.E. 615; 17 Ohio Jurisprudence, 115, § 94.)
We must assume that every principle of comity is observed by that state, and should not withhold from the plaintiff any remedy the law affords upon any theory of retaliation. The plaintiff having invoked the remedy afforded by the law of the forum, and having performed all the conditions precedent, we know of no principle upon which the remedy could be denied.
We should at this point refer to the plaintiff's contention that this court had no jurisdiction to review the order of the trial court on the motion to discharge the attachment, for the reason that as to that order these proceedings were not instituted within the time required by law. That such an order is a final order affecting a substantial right was decided by this court in Price Hill Colliery Co. v. Old Ben Coal Corp., 38 Ohio App. 151, 175 N.E. 755.Upon the expiration of the term at which it was entered the plenary power of the trial court over it came to an end. It could only by vacated or reversed in the manner and time prescribed by statute. The petition in error in this case was not filed until more than seventy days after the order refusing to discharge the attachment. It was, therefore, filed too late to confer jurisdiction upon the court to reverse the order had error intervened. We, however, do not find that there was error. The petition in error was filed within seventy days of the final judgment on default, and, therefore, confers jurisdiction to review the action of the court in that respect.
It is urged that the court erred in admitting the deposition in evidence. It should be noted here that this deposition was used at the hearing on the default to prove that the plaintiff had a meritorious cause. If the defendant desired to contest the merits she should have filed an answer placing the allegations of the petition in issue. She was in default and thereby had confessed the allegation to be true. Section 11592, General Code.
What proof, if any, other than the confession of the defendant the...
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