Litsinger Sign Co. v. American Sign Co.

• Decision Date: 28 June 1967
• Docket Number: No. 40013,40013
• Citation: 11 Ohio St.2d 1,40 O.O.2d 30,227 N.E.2d 609
• Parties: , 40 O.O.2d 30 LITSINGER SIGN CO., Inc., Appellee, v. The AMERICAN CO., Inc., Appellant.
• Court: Ohio Supreme Court

Page 1

11 Ohio St.2d 1

227 N.E.2d 609, 40 O.O.2d 30

LITSINGER SIGN CO., Inc., Appellee, v. The AMERICAN CO., Inc., Appellant.

No. 40013.

Supreme Court of Ohio.

June 28, 1967.

Syllabus by the Court

1. A judgment of a sister state's court is

subject to collateral attack in Ohio if there was no subject matter or personal jurisdiction to render the judgment under the sister state's internal law, and under that law the judgment is void; however, such collateral attack is precluded in Ohio, if the defendant submitted to the jurisdiction of the sister state's court by an appearance precluding collateral attack in such state.

2. The manner of proof in Ohio courts of another state's internal law is a matter of Ohio law.

3. If the reasonable notice provisions of Section 2317.45, Revised Code, have been satisfied, an Ohio court must take judicial notice of a sister state's public laws of general application, constitutional provisions, rules of procedure having force of law throughout the state, and the state's cases which interpret any of these, when brought to the court's attention by formal pleading and proof, of by brief or in oral argument; however, the court may, in its discretion, notice such authorities sua sponte at any time. (Sections 2317.44, 2317.45, Revised Code, construed; State ex rel. Safeguard Ins. Co. v. Vorys, Supt., 171 Ohio St. 109, 167 N.E.2d 910; Lyons v. Lyons, 2 Ohio St.2d 243, 208 N.E.2d 533, distinguished.)

4. Section 2317.45, Revised Code, is to be liberally construed to effectuate its purpose of procedural fairness and does not apply when the court exercises its discretion to judicially notice another state's law sua sponte.

5. The reasonable notice provisions of Section 2317.45, Revised Code, have been satisfied when the applicability of a sister state's law is clear from the pleadings, as when the jurisdiction of a sister state's court is at issue, or when both parties have relied upon the sister state's law.

6. Where a defendant Ohio corporation contracted by mail and telephone with a plaintiff Maryland corporation for the installation of a sign in Maryland by plaintiff, a Maryland court's judgment against defendant for amounts allegedly due under the contract is void and not enforceable in Ohio, where jurisdiction over defendant was attempted to be secured by extraterritorial service by registered mail, and where, under Maryland law, defendant was not doing business in Maryland, the contract sued upon was made in Ohio, not in Maryland, the defendant did no acts in Maryland incurring liability to plaintiff, and the defendant did not submit to the Maryland court's jurisdiction by a general appearance.

Mohawk Motor Inns contracted with The American Sign Co., Inc., hereinafter referred to as American, for the furnishing and installation of a sign at Mohawk's location in Baltimore, Maryland. American negotiated with Litsinger Sign Co., Inc., of Baltimore, hereinafter referred to as Litsinger, by telephone and mail for a subcontract. On June 22, 1962, American wrote to Litsinger: '* * * give me quote on erecting the letters.' Litsinger replied that it would do the work per American's diagrams at ordinary industry prices. The last communication before work commenced was American's sending from Cincinnati to Baltimore, postmarked July 17, 1962, of its purchase order, plus a letter of authorization to start work.

Litsinger furnished and installed the sign, for which it was duly paid, and did additional electrical work. American did not pay the $963.80 charge for the electrical work, claiming such as not authorized by the contract.

Litsinger filed suit in the People's Court of Baltimore City in Maryland. American received by mail a summons returnable by November 13, 1963. On November 15, 1963, American's attorney wrote to Litsinger's attorney, claiming that the Baltimore court lacked personal jurisdiction over American and asking Litsinger to dismiss the action. An unsigned carbon copy of that letter was sent to the court.

Litsinger was granted a default judgment of $963.80, plus $12.50 costs, on May 11, 1964, and properly established such judgment by proof in this action brought in the Cincinnati Municipal Court to enforce the judgment.

The foregoing stipulated facts and the exhibits constituted all the evidence received in the trial court. American's answer collaterally attacked the personal jurisdiction of the Maryland People's Court.

The trial court, without opinion or findings, rendered judgment for plaintiff in the amount of the Maryland judgment and overruled defendant's motion for a new trial.

The Court of Appeals affirmed, finding no prejudicial error. The cause is before this court upon the allowance of a motion to certify the record.

Foiles & Seaman and Robert R. Lowery, Cincinnati, for appellee.

Joseph A. Brant and Sidney C. Brant, Cincinnati, for appellant.

O'NEILL, Judge.

In the instant case, this court must determine the effect to be given to the Maryland default judgment in the Ohio courts.

The judgment of a sister state's court, which is entitled to such full faith and credit as it would receive in the courts of the state in which it was made, may be collaterally attacked if the assertion of jurisdiction over the defendant violated the due process clause of the Fourteenth Amendment. Adam v. Saenger (1938), 303 U.S. 59, 62, 58 S.Ct. 454, 82 L.Ed. 649; McGee v. International Life Ins. Co. (1957), 355 U.S. 220, 222, 78 S.Ct. 199, 2 L.Ed.2d 223; Van Wagenberg v. Van Wagenberg (1966), 241 Md. 154, 160, 172, 173, 215 A.2d 812.

But even if jurisdiction could have been constitutionally assumed, the judgment is open to collateral attack where the sister state's internal law has not authorized the court in question to exercise subject matter or personal jurisdiction to the full constitutional extent, and, under the law of such state, the judgment is void. Treinies v. Sunshine Mining Co. (1939), 308 U.S. 66, 78, 60 S.Ct. 44, 84 L.Ed. 85; Van Wagenberg v. Van Wagenberg, supra, 241 Md. at 160, 161, 215 A.2d 812; Restatement of the Law 2d, Conflict of Laws, Ch. 4, Introductory Note, 39 and 40 (Tentative Draft No. 3, 1956); Restatement of the Law, Judgments, Section 14, comment b. See Hopper v. Nicholas (1922), 106 Ohio St. 292, 294, 140 N.E. 186.

The questions concerning Maryland law will be considered first, for then it will not be necessary to consider the constitutional questions. See Greenhills Homeowners Corp. v. Village of Greenhills (1966), 5 Ohio St.2d 207, 215 N.E.2d 403.

Preliminary to a determination of Maryland law is a consideration of how Maryland law is to be proved in the Ohio courts. This is a matter of Ohio law. See Adam v. Saenger, supra (303 U.S. 59, 58 S.Ct. 454, 82 L.Ed. 649). No evidence of Maryland law was made part of the record herein. However, to the extent that a court may take judicial notice of foreign law, the necessity of formal pleading and proof thereof is alleviated, and the court determines the law informally, as in questions of domestic law. McCormick on Evidence, Section 323; Sections 2309.29 and 2317.44, Revised Code.

In 1939, Ohio enacted a modified version of the Uniform Judicial Notice of Foreign Law Act, which, in pertinent part, reads as follows:

'Every court of this state shall take judicial notice of the statutes of every state, territory, and other jurisdiction of the United States.

'The court may inform itself of such laws in such manner as it deems proper, and the court may call upon counsel to aid in obtaining such information.' Section 2317.44, Revised Code.

Where, as in the instant case, attention has been called to certain statutes by citation in the briefs and argument, the court is bound by the above-quoted section to take judicial notice thereof, although the court might, sua sponte, notice such statutes had they not been cited, under the court's statutory discretion to consider such foreign law as it deems proper. See Section 2317.46, Revised Code (interpretation so as to effectuate purpose of uniformity). Compare Strout, Admr. v. Burgess (1949), 144 Me. 263, 68 A.2d 241, 12 A.L.R.2d 939; Pine Grove Manor v. Director, Div. of Taxation (1961), 68 N.J.Super. 135, 171 A.2d 676; annotation, 23 A.L.R.2d 1437, 1446 and 1447, Sections 9 and 10.

The foregoing assumes that the reasonable notice provisions of Section 2317.45, Revised Code, have been complied with. The purpose of that section is to assure fairness to the opponent when a party wishes to rely on nonform law. See 9A U.L.A. 563, Commr. Notes (1965). The statute should then be so interpreted as to prevent prejudice and not to create a trap for the unwary. Section 2314.45, Revised Code, therefore, does not apply when a court exercises its discretion to judicially notice another state's law sua sponte. See Strout, Admr., v. Burgess, supra (144 Me. 263, 68 A.2d 241). But when a party wishes to bring such a law to the court's attention, formally or informally, and thereby bind the court to judicially notice it, there must be reasonable notice to the adverse party. Section 2317.45, Revised Code.

In the instant case, there was reasonable notice, for two reasons. First, the action was on a foreign judgment, where the jurisdiction of the foreign court was called into question. The nature of such a case, as revealed by the pleadings, is sufficient warning that foreign law is to be relied upon. Second, both parties have briefed and argued Maryland law in the Municipal Court, the Court of Appeals and in this court. The parties have, therefore, Acquiesced in each other's reliance upon Maryland law.

In addition to those public laws of general application clearly included within the term, 'statutes,' that term also fairly includes other states' constitutions and rules of procedure having force of law throughout each such state, although such rules were adopted by the highest court of the state rather than its legislature. These materials are usually readily...