Incorporated Consultants v. Todd

• Citation: 175 Ohio St. 425,195 N.E.2d 788
• Decision Date: 22 January 1964
• Docket Number: No. 37883,37883
• Parties: , 25 O.O.2d 440 INCORPORATED CONSULTANTS, Appellant, v. TODD, Appellee.
• Court: United States State Supreme Court of Ohio

Page 425

175 Ohio St. 425

195 N.E.2d 788, 25 O.O.2d 440

INCORPORATED CONSULTANTS, Appellant, v. TODD, Appellee.

No. 37883.

Supreme Court of Ohio.

Jan. 22, 1964.

Syllabus by the Court

1. The failure of a petition to state a cause of action is not a jurisdictional defect.

2. Where a court has jurisdiction of an action for the recovery of a certain amount of money and the defendant is before the court by proper process or appearance, a judgment for that amount rendered against him in favor of the party bringing the action is not void, even though it is not established that the action was brought by the real party in interest.

In July 1958, the Incorporated Consultants, an Ohio corporation, as plaintiff, instituted an action in the Cleveland Municipal Court against Jamie Todd, as defendant. The petition, captioned 'Incorporated Consultants, Assignee of Wm. Manlove vs. Jamie Todd,' pleaded in short form 'that there is due on open account from the defendant the sum of $1,675 for services' and prayed for 'judgment against defendant in the sum of $1,675 with interest.' No allegation was made in the petition to the effect that a lawful assignment was made by William Manlove to the plaintiff. In September 1958, the defendant filed an answer in which she 'denies that she owes William Manlove, or his assignee, Incorporated Consultants, $1,675 or any amount on open account or otherwise for services rendered.' Her then counsel withdrew from the case, and in July 1959 a default judgment was entered against her. $On November 15, 1961, the judgment debtor filed a petition to vacate that judgment, which reads, in part:

'(1) There are statutory grounds for vacation of said judgment as follows:

'(a) Section 2325-01, General Code of Ohio [sic], paragraph D: 'for fraud practiced by the successful party in obtaining a judgment or order.'

'(b) Section 2325-01, General Code of Ohio [sic], paragraph J: 'When such judgment or order was obtained, in whole or in a material part, by false testimony on the part of the successful party, or any witness in his behalf, which ordinary prudence could not have anticipated or guarded against, and the guilty party has been convicted.'

'(2) Defendant has a defense against the plaintiff in this action, namely, that there is nothing due either to the plaintiff Incorporated Consultants, assignee of William Manlove, or to William Manlove.

'(3) Incorporated Consultants, assignee, etc., are not the real party in interest.' (Emphasis added.)

Subsequent to the filing of an answer to the petition to vacate, the court, upon consideration of the pleadings and the opening statements of counsel and of the record in the original action, vacated the judgment. Its action in doing so was affirmed by the Court of Appeals.

The cause is here upon the allowance of a motion to certify the record.

Leonard P. Gilbert, Cleveland, for appellant.

Joseph Saslaw, Cleveland, for appellee.

TAFT, Chief Justice.

The record discloses that no evidence was offered in support of the allegations of the petition to vacate, and no admissions that might support those allegations were made by the judgment creditor in its answer to the petition to vacate or in its opening statement. It is apparent, therefore, that the trial court erred in vacating the judgment which had been rendered at a previous term of court unless that judgment is void. This is recognized in the brief of the judgment debtor, who endeavors to avoid the necessity of relying on the statutes providing for vacation of judgments after term by contending that the 1959 default judgment is void because the judgment creditor 'did not state a cause of action in its petition by failing to plead an assignment' and because 'the omission of this essential allegation in the petition [i. e., that Manlove had assigned his interest in the claim sued on to the judgment creditor] rendered the statement of the cause of action fatally defective, and the judgment which was rendered on said petition, void.'

In 30A American Jurisprudence, 782, Section 866, it is said:

'It is a general rule of law that a judgment rendered by a court having jurisdiction of the subject matter and the parties is not subject to collateral attack because of mere defects * * * in the pleadings. This rule has been declared to apply in all cases of an imperfect or defective complaint, and under, it, a collateral attack may not be made * * * on the ground that the pleadings lack material averments and do not state a cause of action.'

In 49 C.J.S. Judgments § 40, p. 99, it is said:

'It has been held that failure of plaintiff's initial pleading to state a cause of action is not a jurisdictional defect, and that, except where the complaint shows that the court has no jurisdiction of the parties and the subject matter or fails to show affirmatively that the court has such jurisdiction, a judgment rendered thereon is not void merely because the complaint fails to state a cause of action, as long as it apprises defendant of the nature of plaintiff's demand.'

In Moore v. Robison (1856), 6 Ohio St. 302, the first paragraph of the syllabus reads:

'Where a court has jurisdiction of the subject matter of an action, and the form of action in which suit is brought, and the parties are before the court by proper process, its judgment in the case, though erroneous, is not void; the jurisdiction is not ousted by the erroneous exercise of the power which it confers.'

In Mantho v. Board of Liquor Control (1954), 162 Ohio St. 37, 120 N.E.2d 730 the syllabus reads:

'1. The Court of Appeals has jurisdiction of the subject matter involved in an appeal from a judgment of the Common Pleas Court which is rendered on appeal from a decision of the Director of Liquor Control with respect to the issuance or renewal of liquor permits.

'2. Although neither the Director of Liquor Control nor the Board of Liquor Control nor the Department of Liquor Control had authority to prosecute an appeal from a judgment of the Common Pleas Court with respect to the issuance or renewal of liquor permits, at the time such an appeal was taken, nevertheless, where such appeal was prosecuted by the Board of Liquor Control and no objection was raised to the prosecution of such appeal in the Court of Appeals, and the appeal was heard and judgment was rendered by the Court of Appeals, such judgment was valid and cannot thereafter be set aside or vacated on the ground of lack of jurisdiction of the Court of Appeals.'

Among other decisions of this court which support or tend to support the foregoing statements from American Jurisprudence and Corpus Juris Secundum are Hart v. Manahan (1904), 70 Ohio St. 189, 71 N.E. 696; McCurdy v. Baughman (1885), 43 Ohio St. 78, 1 N.E. 93; and Sheldon's Lessee v. Newton (1854), 3 Ohio St. 494.

When the vacated judgment was rendered, the court admittedly had jurisdiction over the persons of both plaintiff, who brought the action, and defendant, who filed an answer expressly recognizing that plaintiff was suing as an assignee of the claim sued on. Certainly, the court which rendered that judgment had jurisdiction of the subject matter, i. e., an action to recover money on an account for $1,675.

The precise question involved in the instant case was before the Superior Court of Cincinnati in Smead, Collard and Hughes v. Fay (1857), 1 Disney 531, 12 Ohio Dec. Rep. 777, where it was held that a judgment would not be set aside on a showing by the defendant that the plaintiff was not the real party in interest.

Even in criminal cases, where an indictment omits an essential element of a crime, this court has consistently held that a judgment of conviction of that crime pursuant to that indictment cannot be collaterally attacked. See Perry v. Maxwell, Warden (1963), 175 Ohio St., 369.

For the foregoing reasons, the judgment of the Court of Appeals is reversed and the cause is remanded to the Municipal Court for further proceedings.

Judgment reversed.

ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH and HERBERT, JJ., concur.

GIBSON, Judge (dissenting).

The rule for application in the instant case was stated clearly by this court in the first paragraph of the syllabus in Lincoln Tavern, Inc., v. Snader (1956), 165 Ohio St. 61, 133 N.E.2d 606, as follows:

'A proceeding to vacate a judgment on the ground that it is void for want of jurisdiction is not subject to the provisions of Section 2325.01 et seq., Revised Code, which apply to the vacation or modification of only those judgments which are merely voidable and not those which are void ab initio.' Also, see Celina Mutual Ins. Co. v. Duke, a Minor (1961), 113 Ohio App. 241, 177 N.E.2d 679. Consequently, the issue in this case is whether the judgment of July 1959 is merely voidable or void ab initio.

The appellee contends that the judgment of July 1959 is void. This contention is based upon the argument that the court did not have jurisdiction because the petition did not state a cause of action since, by failing to plead an assignment or assignments which would perfect title in itself, appellant failed to show that it was the real party in interest.

On the other hand, the appellant could never be said to concede that the July 1959 judgment is more than voidable at worst. This conclusion is based upon its argument that the appellee has elected to proceed under Section 2325.01, Revised Code, alleging fraud; that appellee may not be heard to complain about the failure to plead the assignment in view of the allegations of her answer to the original petition, as quoted in the statement of facts above; and the fact that more than two years passed between the original judgment and the filing of...