Donellan Jerome, Inc. v. Trylon Metals, Inc.

• Decision Date: 26 July 1967
• Docket Number: No. 7933.,7933.
• Citation: 270 F. Supp. 996
• Parties: DONELLAN JEROME, INC., Plaintiff, v. TRYLON METALS, INC., Albert A. Taft and John D. Buckley, Defendants.
• Court: U.S. District Court — Northern District of Ohio

270 F. Supp. 996

DONELLAN JEROME, INC., Plaintiff, v. TRYLON METALS, INC., Albert A. Taft and John D. Buckley, Defendants.

No. 7933.

United States District Court N. D. Ohio, W. D.

July 26, 1967.

C. David Cox, Jr., Toledo, Ohio, for plaintiff.

John W. Edwards, Columbus, Ohio, for defendants.

MEMORANDUM

DON J. YOUNG, District Judge.

Plaintiff corporation received a judgment against defendants in the United States District Court for the Northern District of Illinois, Eastern Division in 1953. In 1958, a transcript of the judgment was filed in this Court. This Court thereafter entered a conditional order of revivor of the judgment which had become dormant. Said order was effective to revive the judgment on or about March 7, 1967.

On March 24, 1967, this Court issued an order for execution against the person of the judgment debtor, Albert A. Taft. Pursuant to the Ohio statutes concerning body execution, the judgment debtor was permitted to file a bond of two property holders in Allen County, Ohio and was allowed his freedom within the prison bounds, which was construed to mean the counties comprising the Western Division of the Northern District of Ohio. Subsequently, the motion of Taft in the District Court in Illinois to set aside the original judgment was denied. A motion to vacate that order was also denied.

The judgment debtor has now filed two motions seeking his release. The first is a motion asking this Court to vacate its previous order of revivor. The reason given is that the plaintiff corporation in whose favor the original judgment was entered, and in whose name the judgment was revived, was not a legal entity and accordingly had no standing to appear before the Court. Attached to this motion is a certification by the Secretary of State of Indiana that the Articles of Incorporation of plaintiff were revoked on December 17, 1965, "for failure of payment of Annual reports." Plaintiff has opposed by characterizing the motion as simply a harassment technique, but has called the Court's attention to no authorities.

The question involved herein has nothing to do with the capacity of a party to sue. Plaintiff is not bringing a suit in this Court. A proceeding to revive a judgment is not a new action but merely a motion in the original suit. This question must therefore be decided by reference to the specific procedures regarding revival of judgments.

Unless a federal statute provides otherwise, the practice relative to the revival of dormant judgments is to be governed by state law. 7 Moore, Federal Practice 2419; Miller v. United States, 160 F.2d 608 (9th Cir. 1947); United States for Use and Benefit of Grohne v. English Const. Co., 95 F.Supp. 763 (S.D.N.Y.1951). Since the judgment has been registered in Ohio, the state law applicable in this case is the law of Ohio. There is no specific statutory provision in Ohio governing this situation but one Court of Appeals held that an action to revive a dormant judgment may be instituted in the name of the original plaintiff, a corporation, even though such corporation is now defunct. Foster Screen Co. v. Brigel, 27 Ohio Law Abs. 704, 31 N.E.2d 699 (Ct.App. Hamilton Co. 1937). There can be no prejudice to the judgment debtor by such a procedure. If the judgment has passed to another in the windup of the corporation, the debtor can protect himself by raising this at sometime in the proceeding. The holding of this Court will be that the judgment was properly revived in the name of the plaintiff.

The second motion is to stay the execution of the judgment heretofore revived for the reason that this defendant has filed an independent action in the United States District Court for the Southern District of Indiana, Indianapolis Division against the plaintiff praying for equitable relief from said judgment. The complaint in the Indianapolis court prays that the judgment be declared null and void, and that Donellan Jerome, Inc., be enjoined from enforcing this judgment. It should be noted that not only may a federal court entertain an original action to grant relief...