Hayes v. Kentucky Bank

• Decision Date: 25 May 1932
• Docket Number: 23427
• Citation: 181 N.E. 542,125 Ohio St. 359
• Parties: Hayes v. Kentucky Joint Stock Land Bank Of Lexington.
• Court: Ohio Supreme Court

181 N.E. 542

125 Ohio St. 359

Hayes v. Kentucky Joint Stock Land Bank Of Lexington.

No. 23427

Supreme Court of Ohio

May 25, 1932

Judgments - Vacating default after term - Proof competent that summons not served at defendant's usual place of residence - Unnecessary to plead and prove valid defense to action - Petition to vacate judgment not entry of appearance.

1. Where a personal judgment is entered by default against a defendant upon a showing of service of summons upon such defendant by leaving an attested copy at the usual place of residence of such defendant, upon a petition being filed after term to vacate such judgment it is competent to contradict the record showing service and to prove that the place where the attested copy was left was not in fact defendant's "usual place of residence."

2. Such challenge is a direct attack upon the judgment, and it is not necessary in such petition to plead or at the hearing to prove that defendant has a valid defense to the action.

3. A petition praying the vacation of the judgment filed in the original action does not constitute an entry of appearance.

Messrs. Gentsch & Lang and Messrs. Marvin &amp Marvin, for plaintiff in error.

Messrs Smith, Olds, Thompson & Harris and Mr. O. R. Barnes, for defendant in error.

MARSHALL C.J.

This cause originated in the court of common pleas of Ashtabula county, Ohio, instituted by Kentucky Joint Stock Land Bank of Lexington against Charley Clendenning and Emily Clendenning to recover personal judgment upon a promissory note and for foreclosure of a mortgage upon real estate given to Secure payment of said note. Emily L. Hayes was made a party defendant, and judgment was asked against her in the amount of any deficiency which might remain after applying the proceeds of the sale of the real estate to the debt. The claim against Emily L. Hayes grew out of an alleged assumption of the mortgage by her, that assumption appearing in the warranty clause of a deed executed by the Clendennings to her, subsequent to the execution of the mortgage. Mrs Hayes claims to have a defense to that claim, but we are not now concerned with the validity of that defense. A summons was issued for her, directed to the sheriff of Cuyahoga county, which was returned "not found." Thereafter summons was made by publication, and the notice was addressed to her at the Logan Hotel, Washington, D.C. Still later a summons was directed to the sheriff of Stark county, Ohio the return of the sheriff stating that he had delivered the same to her at her usual place of residence "by delivering a true and certified copy thereof to her at her usual place of residence." The question to be determined by this review is whether she had a "usual place of residence" in Stark county. If that question is answered in the affirmative, the proceedings which resulted in a deficiency judgment being entered against her by default were regular. If not, a number of important questions arise.

No summons was served upon her personally in Stark county or at any other place The attested copy of the summons was in fact left at the home of her daughter, which home the plaintiff believed was the "usual place of residence" of Mrs. Hayes, but which Mrs. Hayes insists was not her residence but that she was merely having a temporary visit with her daughter. The attested copy of the Summons eventually came into her possession, and she thereupon carried it to Cleveland, where she consulted an attorney and explained to him that Canton was not her residence, and the attorney thereupon advised her to disregard it. After the deficiency judgment had been entered by default she filed her petition in the cause to vacate the judgment, upon the ground that no legal service had ever been made upon her, and upon the further ground that the alleged assumption of the debt was a fraud upon her, and that she had a valid defense thereto. Issue was joined upon that petition, and the court of common pleas found "that good and valid service was had in this action as upon the defendant Emily L. Hayes and that the court had jurisdiction over her person." The court further found that she had not shown a valid defense to the claim of plaintiff, and the petition to vacate the judgment was therefore denied at petitioner's costs.

The court of common pleas, in finding the service of summons to be valid, necessarily found that Canton was her "usual place of residence" at the time the attested copy was left at the home of the daughter. No appeal was taken from the judgment of the court of common pleas, but error was prosecuted, and one of the grounds of that review was that the judgment of the court of common pleas was against the weight of the evidence. Under rule XIX of this court, this court will not weigh conflicting evidence to determine whether the lower courts reached correct conclusions. This rule is recognized by counsel for plaintiff in error, but it is claimed that there is no evidence from which a reasonable inference can be drawn that Mrs. Hayes had a residence in Canton where she could be served with summons by leaving an attested copy. We must therefore turn to the evidence to ascertain whether the finding of the court of common pleas has any support.

No other person testified to the contrary, and there is nothing in this record even tending to support the claim of her having a residence in Canton. Her positive statement is not contradicted by any other witness, or by any other circumstance. Standing uncontradicted, it must be accepted as proof, in the absence of any testimony or circumstance from which a contrary inference can be drawn. The record discloses none. The mere fact that she was at her daughter's home at the time the attested copy was left, but which was not delivered to her personally, would not even tend to establish the fact of residence, because it was made clearly to appear that the dwelling was in fact the home of the daughter, who was married and living with her husband at that place. It was apparently the purpose of the cross-examiner to endeavor to show that she had no other residence, from which it was apparently the theory of counsel that, if she had no residence at any other place, then she must have had a residence at the place where she was personally present at that time. If this was the theory, it finds no support in the common law in this or any other state. If it had been established by plaintiff, or admitted by Mrs. Hayes, that she had at one time a residence at Broad avenue, Canton, Ohio and had never thereafter established a residence at any other place, the theory of plaintiff would find support in the authorities.Certain exhibits were received in evidence. The first to be noticed is an affidavit of O. R. Barnes, attorney for Clendenning, made to obtain service by publication, in which affidavit it is stated that Emily L. Hayes resided...