Michael v. American Nat'l Bank

• Decision Date: 30 June 1911
• Docket Number: 12649
• Citation: 84 Ohio St. 370,95 N.E. 9050
• Parties: Michael v. The American National Bank.
• Court: Ohio Supreme Court

95 N.E. 9050

84 Ohio St. 370

Michael v. The American National Bank.

No. 12649

Supreme Court of Ohio

June 30, 1911

Final judgment - Will not be set aside for new trial - Except for fraud, etc. - Fraud must consist of extrinsic acts - Court procedure.

1. Where a cause has proceeded to trial and final judgment, a court of equity will not vacate or open up the judgment and grant a new trial of the same issue determined in the former hearing, in the absence of fraud or undue advantage by the prevailing party.

2. The fraud or undue advantage for which a court of equity will set aside a judgment or decree, must consist of extrinsic acts outside of and collateral to the matter actually tried by the first court and not related to the matter concerning which the judgment or decree was rendered.

The amended petition of the plaintiff in the court of common pleas in this cause is as follows:

"Now comes the plaintiff, and for his cause of action avers:

"That the defendant, The American National Bank of Lima, Ohio, is a corporation, duly organized under the laws of the United States of America, and, on the 24th day of December, 1898, it was engaged in the business of conducting a bank, under the national banking laws of the United States of America, at the city of Lima, in the county of Allen and state of Ohio.

"That at said date of December 24, 1898, Joseph Goldsmith was president; this plaintiff, Nathan L. Michael, was vice-president and Gus Kalb was the cashier of said bank; and said cashier at the close of business on said 24th day of December, 1898, had in his custody, of the moneys deposited in said bank and for which said bank was responsible as custodian aforesaid, the sum of eighteen thousand, two hundred fifty-three and 72-100 ($18,253.72) dollars.

"That at the close of business on the said 24th day of December 1898, said sum of eighteen thousand, two hundred fifty-three and 72-100 ($18,253.72) dollars was deposited and locked in a safe inside of the vault in the room where defendant conducted its banking business, and said vault was provided with an outer steel door three inches in thickness, with a combination lock to which was attached a time-lock. And said timelock was properly wound and set, and said vault door closed and bolted, and the combination thereon was distributed, and said appliances for the safe-keeping of said money were properly used and said vault door securely locked by the cashier, Gus Kalb.

"That on the 26th day of August, 1899, the defendant, The American National Bank of Lima, Ohio, filed its petition in the court of common pleas of Allen county, Ohio, in case No. 10050 of said court, making Gus Kalb and this plaintiff defendants in an action for money had and received, and praying for a judgment against said Gus Kalb and this plaintiff for the said sum of eighteen thousand, two hundred fifty-three and 72-100 ($18,253.72) dollars, with interest from the 27th day of December, 1898; that thereafter, to-wit, on December 4 1899, this plaintiff filed his amended separate answer in which he averred as a defense that between the dates of December 24 and December 27, 1898, the vaults of said The American National Bank of Lima, Ohio, were entered and robbed, and the said sum of eighteen thousand, two hundred fifty-three and 72-100 ($18,253.72) dollars was stolen and carried away by some person or persons unknown to Nathan L. Michael, one of the defendants in said cause No 10050, and without his neglect or default.

"That thereafter on the 4th day of December, 1899, the said, The American National Bank of Lima, Ohio, plaintiff in said cause No. 10050, filed its reply to the amended answer of Nathan L Michael in said cause, and denied the allegations of the amended answer of Nathan L. Michael filed in said cause No 10050.

"That said averment of plaintiff in his answer, as defendant in said cause No. 10050 and the denial of said averment by The American National Bank of Lima, Ohio, as plaintiff in said cause, made up a material issue of fact, and that said cause was tried to a jury on the issue thus made up; and on December 12, 1899, said jury rendered a verdict on behalf of the defendant, The American National Bank of Lima, Ohio, as plaintiff in said action, against the defendants Gus Kalb and Nathan L. Michael, in the sum of nineteen thousand sixty-nine and 4-100 ($19,069.04) dollars.

"That within three days after the rendition of said verdict, each of said defendants filed his separate motion for a new trial, which was overruled by the court of common pleas, and a bill of exceptions was prepared, allowed, signed, sealed and made a part of the record in said cause, but not spread upon the journal; and each of said defendants thereafter filed his petition-in-error in the circuit court of Allen county, Ohio, praying for the setting aside of said verdict and for a new trial, but the judgment of the court of common pleas was duly affirmed.

"That thereafter each of said defendants, within the time allowed by law, prosecuted error in the supreme court of Ohio, to the affirmance of said judgment by the circuit court of Allen county, Ohio, and said cause was fully reviewed by the supreme court of Ohio, and by it, the said judgments of the lower courts were affirmed and a mandate was directed and issued on October 23, 1901, to the clerk of the court of common pleas for Allen county, Ohio, commanding him to carry into effect the judgment and orders of said court of common pleas.

"That by reason thereof, on the 25th day of October, 1901, this plaintiff, as a defendant in said cause No. 10050 aforesaid, was compelled to pay to the defendant, The American National Bank of Lima, Ohio, as plaintiff in said cause, and did pay to the clerk of the courts for Allen county, Ohio, the one-half (1/2) of said judgment, interest and costs, amounting to the sum of ten thousand, eight hundred eighty-six and 74-100 ($10,886.74) dollars.

"That the defendant, Gus Kalb, was a codefendant of this plaintiff in said cause No. 10050 of the Allen county common pleas court, in which cause, The American National Bank of Lima, Ohio, recovered the verdict and judgment heretofore mentioned; that the consent of said Gus Kalb to be joined as plaintiff herein cannot be obtained, and that by reason thereof, the said Gus Kalb is made a defendant in this action.

"That between the date of closing and locking said vault on the 24th day of December, 1898, aforesaid, and the 27th day of December, 1898, the aforementioned appliances for the safe-keeping of said sum of eighteen thousand two hundred fifty-three and 72-100 ($18,253.72) dollars were tampered with and rendered useless by a thief in the person of one at the time of action heretofore mentioned and for a long time thereafter unknown to this plaintiff, and said sum was taken, stolen and carried away by said thief, whom the plaintiff avers to be one Elijah Bowsher.

"That the plaintiff at the time of said action in cause No. 10050, aforesaid, had no knowledge and no means of knowing the connection of Elijah Bowsher with the theft from said bank of said sum of eighteen thousand, two hundred fifty-three and 72-100 ($18,253.72) dollars, and that he had no knowledge of the same until the fall of the year 1905.

"That said Elijah Bowsher at the September term of the court of common pleas for Allen county, Ohio, in the year of 1905, was indicted by the grand jury of said county for the larceny of said sum of eighteen thousand, two hundred fifty-three and 72-100 ($18,253.72) dollars of the moneys and property of The American National Bank of Lima, Ohio, so by him stolen and carried away and was convicted and sentenced for said crime to the Ohio Penitentiary for a period of seven years.

"Plaintiff further avers that owing to the lapse of time between the time of the trial of said action in said cause No. 10050, and the time of the discovery and disclosure of the fact that the theft heretofore referred to was committed by said Elijah Bowsher, plaintiff is without adequate remedy at law.

"Wherefore, plaintiff prays that said verdict in said cause No. 10050 of Allen county, Ohio, common pleas court, entitled The American National Bank of Lima, Ohio, plaintiff, vs. Gus Kalb, and Nathan L. Michael, defendants, may be set aside and a new trial of said cause awarded; and that plaintiff may have any other and further orders necessary to have adequate relief in equity."

A demurrer was filed by the defendants to this amended petition, which was sustained by the common pleas court, and the plaintiff not desiring to plead further, judgment was entered dismissing the petition at the costs of the plaintiff. On error proceedings in the circuit court of Allen county this judgment was affirmed and the action here is to reverse the judgments of the courts below.

Messrs. Halfhill, Quail & Kirk, for plaintiff in error.

The defendant contends that proceedings under the statute for the vacation or modification of judgments or for a new trial are exclusive, and that, unless authority can be found in these statutes, the plaintiff is without remedy either at law or in equity. This contention is not, and cannot be sustained by the authorities of this state. These authorities hold the very reverse to be true; that the statutory proceedings are not exclusive, but simply cumulative. Long v. Mulford, 17 Ohio St. 508; Coates v. Bank, 23 Ohio St. 415; Darst v. Phillips, 41 Ohio St. 514.

It is also the rule that new trials may be granted on other than statutory grounds. Brenzinger v. Bank, 19 C. C., 536.

The statute does not say that a new trial shall not be granted for any other causes than those enumerated therein. It does not take away the ancient power inherent in the court. 1 Spence's Equitable...