Hart v. Manahan
| Decision Date | 07 June 1904 |
| Docket Number | 8418 |
| Citation | 71 N.E. 696,70 Ohio St. 189 |
| Parties | Hart v. Manahan |
| Court | Ohio Supreme Court |
Personal judgment - Against married woman - Action on promissory note given under coverture with no separate estate - Effect of failure of record - Judgment voidable, when - Enforcement of judgment will not be enjoined, when - Court proceedings.
A personal judgment against a married woman rendered in an action on her promissory note, executed and delivered in the year 1879, in which action she answered and plead her coverture, and that she owned no separate estate when the note was executed, the latter fact being traversed by reply is not void because the record thereof fails to show that the court passed on the issue thus made, but such judgment is voidable merely; and if it has not been reversed or modified but remains in full force and unsatisfied, its enforcement in any proper action or proceeding, or by any lawful process will not be enjoined, unless some equitable grounds of relief be shown, such as fraud, collusion, or coercion. McCurdy v Baughman, 43 Ohio St. 78, approved and followed.
The defendant in error brought suit in the court of common pleas of Erie county to enjoin the plaintiff in error from enforcing by civil action, a personal judgment which he recovered against her in the court of common pleas of Lucas county, Ohio, at its September term, in A. D. 1897, in the sum of $3, 199.26 and costs of that action. The plaintiff in error joined issue on the petition for injunction, and on hearing of the case thus brought, the court of common pleas found for Hart, plaintiff in error, except as to a certain amount of interest, claimed to be due on the judgment, and dissolved the temporary injunction against enforcing the same except as to said interest. The plaintiff below, now defendant in error, appealed to the circuit court and there obtained leave to file an amendment to the original petition and also what the pleader calls a supplemental petition. The substance of the petition as thus amended and supplemented, is, that on the fourteenth day of April, 1879 she, the plaintiff, executed and delivered to the defendant her promissory note for $986.47, payable three years after date with eight per cent. interest, payable annually, and that when the note was executed and delivered, she was a married woman, resident of Ohio, and that her coverture continued until the death of her husband in the year 1901; that on the nineteenth day of March, 1897, the defendant filed his petition against her, in the court of common pleas of Lucas county, Ohio, alleging therein the execution and delivery of said note, and praying for judgment thereon; that she answered the petition on the eleventh day of June, 1897, alleging that at the date of the note, she was a married woman, possessed of no separate estate, except what was then invested in a certain partnership, all of which property had been sold by order of the court at about the date of the note, and the proceeds of the sale applied in payment of partnership debts, and that since that time, she has not been the owner of any separate estate, and prayed for a dismissal of the petition; and further that the defendant Hart, replied to the answer, denying its allegations, and also alleging that when the note was executed, she, Mrs. Manahan, was the owner of a separate estate, and that the note was given for the benefit of the same, and for the payment of which she intended to charge her separate property. She further alleged that at the September term of the Lucas county court, in September, 1897, the cause was tried on these issues, and that Hart recovered a judgment against her for the sum of $3,199.26 and costs of the action.
The petition in this case, further alleges, that prior to the death of her husband in 1901, she owned no property, real or personal, which grew out of any separate estate at any time owned by her, but that at the death of her husband and by his last will, she acquired certain property, which the judgment creditor, Hart, is seeking to subject to the payment of his judgment, in the supreme court of New York, in New York county, and also in Essex county, New Jersey, where he has brought suits for that purpose. A mistake in the computation of the interest entering into the original judgment in Lucas county, is alleged, and the further fact that the plaintiff, Mrs. Manahan, though formerly a resident of Lucas county, Ohio, where the judgment was obtained, is now a resident of East Orange, New Jersey, and that Hart, the judgment creditor, is a resident of Erie county, Ohio.
It is further alleged that she cannot obtain full relief in the action brought against her in the supreme court of New York, because if she filed a cross-petition therein against Hart, she could not get service of legal process on him, and that as to the action pending against her in New Jersey, where she resides, she could only obtain relief sought by filing a bill in a court of equity and obtaining service of process on Hart; moreover, that if it were possible for her to obtain the desired relief in those courts, it would be at much expense in proving the laws of Ohio and otherwise establishing her defenses against the Ohio judgment. The plaintiff says she offers to pay Hart any amount the court may find justly due on the judgment.
The prayer of the petition is for a finding of the true amount due on the judgment, and for a perpetual injunction against the further prosecution of the actions pending in the supreme court of New York, and in the circuit court of Essex county, New Jersey.
Defendant Hart, in answer to the original petition, denies that any mistake occurred in computing the amount of the judgment herein, but accepted "the offer to pay any amount the court may find to be justly due" on the judgment, and asks the court, to require the plaintiff to pay such sum into court, in default of which, the petition be dismissed. The answer denies that plaintiff was not the owner of separate estate when the note was executed and since, and denies the impracticability of obtaining adequate relief in the actions pending in the courts of New York and New Jersey. Other averments of the petition as amended and supplemented are denied, not necessary to be repeated here.
For reply Mrs. Manahan points out the mistake in calculating the interest which entered into the judgment, and then says the amount she is willing to pay and offers to pay on the same is $25 as the value of her separate estate when the note was executed April 14, 1879.
The circuit court made findings of fact which in the main, consist in copies of the record of the original action between the parties on the note in the court of common pleas of Lucas county, and which will be noticed in the opinion. The circuit court found for Mrs. Manahan and granted a perpetual injunction against Hart further proceeding in his actions in New York and New Jersey. The case is here on error to the judgment of the circuit court.
Mr. Theodore Alvord and Messrs. Kelly & Merrill, for plaintiff in error, cited and commented upon the following authorities:
Shelton v. Gill, 11 Ohio 417; Rains v. Scott, 13 Ohio 107; Fraser v. Seibern, 16 Ohio St. 624; Edwards v. Morris, 1 Ohio 524; 11 Am. & Eng. Pl. & Pr., 1214, and cases cited in note 5; 1 High on Inj., sec. 138; Spelling on Ex. Relief, secs. 169-172; Monnett v. Sturges, 25 Ohio St. 384; Dunlap v. Wiseman, 13 Re., 244; 2 Disn., 398; Cramer v. Lepper, 26 Ohio St. 59; Darby v. Carson, 9 Ohio 150; Coke Lit., 154, 289; 14 Am. & Eng. Enc. Law, 661; McCurdy v. Baughman, 43 Ohio St. 78; 63 O. L., 47; act of March 30, 1874; Ankeney v. Hannon, 147 U.S. 118; Morgan v. Perhamus, 36 Ohio St. 517; 1 Spelling on Ex. Relief, 38; 1 High on Inj., 47; Snook v. Snetzer, 25 Ohio St. 517; Pomeroy's Remedies, secs. 18, 322, 452, 453; 1 Freeman on Executions, secs. 22, 128; Smith v. Frame, 2 Circ. Dec., 339; 3 C. C. R., 587; Phillips v. Graves, 20 Ohio St. 371; Levi v. Earl, 30 Ohio St. 147; Patrick v. Littell, 36 Ohio St. 79; Hill v. Myers, 46 Ohio St. 183; Society of Friends v. Haines, 47 Ohio St. 423; Card Fabrique Co. v. Stanage, 50 Ohio St. 417; Avery v. Vansickle, 35 Ohio St. 270; Cook v. Courtright, 40 Ohio St. 248; Campbell, Admx. v. Campbell, 2 Circ. Dec., 256; 3 C. C. R., 449; Dole v. Wilson, 39 Minn. 330; Bridge v. Samuelson, 73 Tex. 522; Marietta Iron Works v. Lottimer, 25 Ohio St. 621; Hydraulic Co. v. Chatfield, 38 Ohio St. 575; Story Eq. Juris., 899-900; Burlington, etc., Ry. Co. v. Thompson, 31 Kan. 180; Wilson v. Jo- seph, 107 Ind. 490; Cole v. Cunningham, 133 U.S. 107; Thorndike v. Thorndike, 142 Ill. 450; Carson v. Dunham, 149 Mass. 52; Cole v. Young, 24 Kan. 435; Griffith v. Langsdale, 53 Ark. 71; Carroll v. F. & M. Bank, Harr. (Mich.), 197; Lockwood v. Nye, 15 Am.Dec. 76; Mead v. Merritt, 2 Paige, 402; Williams v. Ayrault, 31 Barb., 364; Burgess v. Smith, 2 Barb. Ch., 276; Dempsey v. Bush, 18 Ohio St. 376; Fort v. Litmer, 31 Ohio St. 217; Cincinnati v. Hafer, 49 Ohio St. 68; Rankin v. Hanna, 37 Ohio St. 117; Lockwood v. Barefield, 7 Ga. 393; Noble v. Merrill, 48 Me. 140; Lawton v. Perry, 40 S. C., 255; Harris v. Pullman, 84 Ill. 20; secs. 4959, 5372, 5374, Rev. Stat.
Messrs. Marshall & Fraser, for defendant in error, and Mr. Edmund B. King, of counsel, cited and commented upon the following authorities:
Kocher v. Cornell, 59 Neb. 315; Filler v. Tyler, 91 Va. 458, 472; Crockett v. Doriot, 85 Va. 240; Pike v. Fitzgibbon, L. R. 17 Ch. Div., 454; Deakin v. Lakin, L. R. 30 Ch. Div., 169; King v. Lucas, L. R., 23 Ch. Div., 712; Roberts v. Watkins, 46 L J. Q. B., 552; Pickens v. Kniseley, 36 W.Va. 794-801; Lee v. Cohick, 39 Mo. App., 672; Martin v. Roney, 41 Ohio St. 141; Bell v. McColloch, 31 Ohio St. 397; Hurlbut v. Wade,...
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