Poindexter v. Willis

• Decision Date: 16 January 1970
• Docket Number: No. 132125,132125
• Citation: 23 Ohio Misc. 199,256 N.E.2d 254
• Parties: , 51 O.O.2d 157, 52 O.O.2d 189 Helen P. POINDEXTER, Plaintiff, v. Norman WILLIS, Defendant.
• Court: Ohio Court of Common Pleas

Page 199

23 Ohio Misc. 199

256 N.E.2d 254, 51 O.O.2d 157, 52 O.O.2d 189

Helen P. POINDEXTER, Plaintiff, v. Norman WILLIS, Defendant.

No. 132125.

Court of Common Pleas of Ohio, Montgomery County.

Jan. 16, 1970.

[256 N.E.2d 256] Allbery & Roberts, Dayton, for plaintiff.

Paul W. Rion and J. G. Tourkow, Dayton, for defendant.

DECISION

BRENTON, Judge.

The judgment of a sister state's court may be collaterally attacked if the assertion of jurisdiction over the defendant violated the due process clause of the Fourteenth Amendment of the United States Constitution.

A judgment in personam against one not served with process within a sister state will be given full faith and credit in Ohio where he has had certain minimum contacts with such state and there was provision for and execution of a reasonable method of notification.

Where the jurisdictional fact in the language of the Long Arm Statute is the commission of a tortious act within the State of the forum, such tortious act is not confined to the traditional concepts of a tort, but includes any act committed in the forum involving a breach of duty that imposes liability upon the actor in damages.

Failure of a father to support an illegitimate child in accordance with the laws of the State of Illinois constitutes a tortious act within the meaning of the Long Arm Statute of such State.

I

On motion by plaintiff for summary judgment in accordance with the provisions of division (B) of section 2311.04.1 O.R.C. the court may in this cause consider only the pleadings and the supporting affidavit submitted and filed by the plaintiff.

Defendant having failed to respond in accordance with the provisions of division (D) of section 2311.04.1 O.R.C. the court then, must, in accordance with the mandate of such division (D) of section 2311.04.1 O.R.C., determine whether summary judgment is appropriate in this cause before rendering such judgment.

This is an action on a judgment of a sister state. Thus, inasmuch as it is not an action on the original claim, it is in the nature of a suit on a specialty. Alropa Corp. v. Kirchwehm, 138 Ohio St. 30, 33 N.E.2d 655, 19 Ohio O. 484.

II

The record before the court for consideration in this proceeding consists of the verified petition of the plaintiff with attached verified exemplification of the judgment rendered by the Circuit Court of the sister state of Illinois, the verified answer of the defendant and the affidavit of one James K. Almeter.

Whether there is a judgment is to be ascertained from the record. The record is conclusive of the facts appearing in it and cannot be questioned in a suit brought on the judgment in Ohio.

The defendant has not by affidavits or as otherwise provided by section 2311.04.1 set forth specific facts showing that there is a genuine issue for trial.

The court finds from the record that there is a judgment rendered on March 26, 1968 by a court of general jurisdiction of a sister state for the plaintiff and against the defendant in the sum of $3,260.00 plus costs of suit. Further that the uncontested affidavit factually shows that James K. Almeter is an Illinois attorney who represented the plaintiff in the Illinois litigation wherein the judgment was rendered and in the appeal wherein the judgment was affirmed by the decision of the Illinois Appellate Division reported in 87 Ill.App.2d 213, 231 N.E.2d 1.

The only question remaining is whether plaintiff is entitled to judgment as a matter of law.

III

Before being entitled to recognition in an Ohio court the sister state judgment must have been based upon good jurisdiction over the subject matter and the parties, it must have adjudicated the merits of the cause of action, it must not have been subject to collateral attack in Illinois and the original cause of action must be so merged into that judgment that no suit may be brought on the original claim. However, when the foreign court appears on the record to be a court of general jurisdiction, the jurisdiction over the parties and the cause is presumed unless disproved by the extrinsic evidence or by the record itself. Ades v. Ades, 70 Ohio App. 487, 45 N.E.2d 416, 25 Ohio O. 214; Williams v. North Carolina, 325 U.S. 226, 65 S.Ct. 1092, 89 L.Ed. 1577 A.L.R. 1366.

No extrinsic evidence has been offered nor has the defendant indicated in any manner that there is such evidence. In consequence thereof, then, may defendant look to the record for any aid and comfort.

Defendant's answer affirmatively challenges the jurisdiction of the Illinois court over his person. And being realistic this is the only issue in the case. The pleadings and the affidavit clearly raise the applicability of the Illinois internal law and the Illinois cases interpreting such law. Litsinger Sign Co., Inc. v. American Sign Co., 11 Ohio St.2d 1, 227 N.E.2d 609.

IV

Before the court and on the record is Illinois Rev.Stat., Chapter 110 section 17(1)(b) and section 16, the decision in the case of Poindexter v. Willis reported at 87 Ill.App.2d 213, 231 N.E.2d 1 and the Illinois Paternity Act, Chapter 106 3/4, section 51-66.

The facts as found by the Illinois Court of Appeals from the record before it on the appeal show that the parties met at the University of Illinois, Champaign, Illinois; that while there and during the course of their relationship at the University, the parties participated in several acts of intercourse; that plaintiff became pregnant as a result thereof, and thereafter returned to her home in Alton, Illinois where the baby was born. Thereafter Helen P. Poindexter, the plaintiff, brought suit in the Circuit Court for the Third Judicial Circuit, Madison County, Illinois under the Illinois Paternity Act wherein she alleged that she was the mother and Norman Willis, the defendant, the father of a child born out of wedlock on July 22, 1964, as a result of her being seduced by the defendant on several occasions. In that action she further alleged that although Willis was a resident of the State of Ohio, he had subjected himself to the jurisdiction of the courts of Illinois by committing tortious acts within the meaning of Illinois Rev.Stat., 110, section 17(1)(b) and was, therefore, subject to personal service outside the State of Illinois pursuant to Illinois Rev.Stat., c. 110, section 16.

Personal service was made on Willis in Ohio. He filed a motion to the action in Illinois challenging that trial court's jurisdiction over his person. The motion was denied, whereupon in that action Willis filed an answer denying the allegations of the complaint and renewing his objection to the trial court's jursidiction over his person. Willis did not appear at the trial. At the trial Helen Poindexter testified as to the several acts of intercourse as aforesaid, her pregnancy and the birth of the baby and that when she became pregnant she wrote to the defendant but he offered no help.

On the appeal, Willis did not question the validity of Chapter 110 section 16 and 17 of the Illinois Civil Practice Act, but argued only that a proper construction of said Act precludes a valid service of process on him in Ohio because the violation of a duty under the Paternity Act would constitute a tortious act committed in the State of Illinois within the meaning of Section 17(1)(b).

The Illinois Paternity Act as interpreted by the Illinois Court of Appeals in Poindexter v. Willis, supra, places the duty on the father of a child born out of wedlock whose paternity is established under the Act to support the child. He is also liable for the reasonable expense of the mother during her pregnancy, confinement and recovery when liability is established in the paternity proceeding. The suit must be filed by the mother of the child born out of wedlock or a mother who is pregnant with child.

Under Section 17(1)(b) a non-resident who either in person or through an agent commits a tortious act within the State of Illinois submits to jurisdiction. The question, then, in that case was whether or not a tortious act was committed in Illinois within the meaning of the statute.

In the Appeal in Illinois, Willis argued that the statutory action for paternity in Illinois did not contemplate nor was it based upon the commission of a tortious act; that the sexual intercourse alleged and testified to was consented to by both parties and in such case neither had committed a tort against the other.

The Illinois Court held that the word 'tortious' as used in Section 17(1)(b) of the Act in question was not restricted to the technical definition of a tort, but includes any act committed in the State of Illinois which involves a breach of duty to another and makes the one committing the act liable to respondent in damages. That Court held that the failure of the father to support an illegitimate child constitutes a tortious act within the meaning of the Statute, Chapter 110 sections 16 and 17 of the Illinois Civil Practice Act and subjected him to the jurisdiction of the Illinois Court.

V

It is the right of the Illinois Courts to enter judgment in personam against a non-resident defendant under the provisions of the Long Arm Statute that Willis complains. He asserts that the effect of the application thereof under the facts and circumstances of his case has violated his constitutional right to due process of law.

The decision of the Supreme Court of the United States which in the first instance sustained the validity of such judgments and enunciated a due process test is International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, 161 A.L.R. 1057. In that case the Supreme Court said:

'Historically the jurisdiction of courts to render judgment in personam is grounded on their defactor power over the defendant's person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U.S. 714, 733, 24 L. Ed. 565. But now that the...