Strain v. Isaacs
| Decision Date | 15 April 1938 |
| Citation | 59 Ohio App. 495,18 N.E.2d 816 |
| Parties | STRAIN v. ISAACS. |
| Court | Ohio Court of Appeals |
Syllabus by the Court.
1. Any irregularity in taking judgment before the cause stood for trial is waived by failure to move for vacation of the judgment on that ground within the first three days of the succeeding term of court.
2. The record of a judgment imputes absolute verity, and in the absence of any proof introduced upon the hearing to vacate the judgment, it must be presumed that in rendering the judgment the court proceeded according to the provisions of the Code.
3. An action for rent upon a written lease, no longer executory as to the plaintiff, is an action founded upon a written instrument for the payment of money only, and as such judgment may be entered at any time during the term after the defendant is in default.
4. Where it does not affirmatively appear in the record that no evidence was produced tending to prove the amount of the rent sought in the action, nor does the record necessarily exclude the persumption that testimony was heard and considered by the court for this purpose, it will be presumed, where such presumption may be necessary to sustain the judgment of a court having jurisdiction of the person and subject-matter that such evidence was heard and considered.
5. Where one claims under a judgment previously rendered, he is not required to support the same by proof of facts outside the record, and he is within his rights when he incorporates into his bill of exceptions the statement that he relied on the record.
6. Except in contempt cases, judicial notice is taken only of those matters which are 'commonly' known, and therefore, individual knowledge of a fact on the part of the judge, not a matter of common knowledge, will not dispense with proof of such fact, and cannot be resorted to for the purpose of supplementing the record.
Shelley M. Strain, of Youngstown, for appellant.
K H. Powell and Louis Gelbman, both of Youngstown, for appellee.
On May 24, 1935, plaintiff, Shelley M. Strain, appellant herein, filed an action in the Court of Common Pleas of Mahoning county, praying judgment against defendant, William Isaacs, appellee herein, in the sum of $4,258, which plaintiff claimed was due him under a written contract of lease alleged to have been executed March 25, 1929, between plaintiff and one Mike Rosso, whereby two storerooms, known as numbers 909 and 911 Market street, Youngstown, Ohio, were leased by plaintiff to Rosso for the term of five years, beginning April 1, 1929, and wherein it was provided that the rental for the first two years was $110 per month and for the remaining three years was $135 per month, payable in advance; that this lease was assigned by Rosso to the defendant, who entered into the possession of the premises, assumed the lease, conducted a restaurant business in the leased premises, and paid the rent under the terms of the lease until November 1, 1930; that on or about June 9, 1931, defendant abandoned the premises and plaintiff, under protest and against his will, took possession of the premises; that when defendant abandoned the premises the same were in no condition for occupancy by reason of the rubbish, filth and dirt left therein by defendant, whereas the lease provided that the premises be left thoroughly clean, all rubbish to be removed therefrom, and in suitable condition for the immediate occupancy by lessor or his lessee.
After further alleging that in two separate actions brought by plaintiff against defendant in the Common Pleas Court of Mahoning county he had recovered judgment on the merits thereof for the rents due for the months of November and December, 1930, and for the months of January, February, March, April, May and June, 1931, and in which actions it was found by the court that the lease was valid and that defendant had duly assumed the lease, plaintiff further alleged:
'That, by reason of the abandonment of said premises for the last two-year and ten-month period of said lease, he was damaged in rental value in the sum of $4590 with a credit of $480, being the amount of rentals realized by this plaintiff during the said two-year and ten-month period.
'Plaintiff further says that he was damaged in the sum of $150 for the cleaning, scrubbing, removal of trash and filth from said premises, making necessary repairs and painting the interior of said premises, so that it would be in a suitable condition for occupancy, as provided in said lease.
'Wherefore plaintiff prays judgment against the defendant for the sum of $4258 and for court costs * * *.'
Summons, endorsed 'Action for money; amount claimed $4,258,' was duly issued upon the precipe attached to plaintiff's petition, and summons was, according to the sheriff's return endorsed thereon and set forth upon the transcript of the docket and journal entries filed herein, duly served upon 'the named defendant, William Isaacs, by delivering to him personally a true and certified copy thereof with the endorsement thereon,' the answer day named in the summons being June 22, 1935.
The defendant failed to answer, demuror file motion to the petition of plaintiff.
July 26, 1935, the following proceedings were had in the action, as shown by the transcript of the journal entry:
'Now comes the plaintiff and the defendant being in default for answer and demurrer, the court find that the allegations of the petition are confessed by him to be true.
'The court further find that the plaintiff is entitled to recover damages by reason of the premises set forth in his petition from the said defendant, and the court assesses said damages at four thousand two hundred fifty-eight dollars ($4,258).
'It is therefore considered, ordered and adjudged that plaintiff, Shelley M. Strain, recover from the defendant, William Isaacs, the said sum of $4258 and his costs herein taxed at $_____.'
June 23, 1936, precipe for execution on this judgment was filed by plaintiff in the clerk's office, upon which execution was duly issued and on June 30, 1936, was returned, endorsed, 'No goods or chattels found whereon to levy,' and showing levy made by the sheriff on certain described real estate in Mahoning county.
Thereafter, plaintiff filed an affidavit for proceeding in aid of execution, which proceeding was subsequently dismissed.
August 14, 1936, certificate of judgment for lien upon lands was issued by the clerk and docketed in the judgment docket. About the same time plaintiff filed a new action in the Common Pleas Court against William Isaacs and Louise Isaacs, wherein he set forth the judgment obtained by him on the 26th day of July, 1935, against William Isaacs, and that the judgment is in full force and wholly unpaid and unsatisfied, and further alleged that on the 20th day of June, 1935, William Isaacs conveyed to his daughter, Louise Isaacs, certain specifically described real estate, being the same real estate upon which the sheriff had levied execution, as hereinBefore related.
Plaintiff's petition further alleged, in substance, that the two deeds executed by William Isaacs to his daughter, conveying such premises, were not executed according to the formalities required by law in that the grantee is one of the two subscribing witnesses to the deeds; and that these deeds were made, executed, delivered and accepted in contemplation of insolvency and with intent to hinder, delay and defraud the creditors of William Isaacs and were in fact without actual consideration. That action is still pending.
Shortly after filing his action to set aside the conveyances from William Isaacs to his daughter, plaintiff caused to be issued out of the clerk's office a writ of venditioni exponas to the sheriff of Mahoning county, who caused the premises previously levied upon to be appraised and advertised for sale. Before the dates fixed for the sale of the premises by the sheriff, Louise Isaacs and William Isaacs filed their action in the Common Pleas Court of Mahoning county against Shelley M. Strain and Ralph Elser, sheriff of Mahoning county, alleging in their petition that Shelley M. Strain had theretofore, on the 26th day of July, 1935, 'recovered a judgment against the defendant, William Isaacs,' that execution was issued on such judgment on the 24th day of June, 1936, and a land levy was attempted to be made on the property of William Isaacs on the 30th day of June, 1936; that Shelley M. Strain subsequently filed his action to set aside the deeds made by William Isaacs to his daughter, Louise Isaacs, and further that the land levy attempted to be made by the sheriff on the 30th day of June, 1936, 'was of no force and effect for the reason that prior to the time that the plaintiff, Shelley M. Strain, obtained a judgment against the defendant, William Isaacs, said defendant transferred and conveyed all the property attempted to be levied upon, and that he owns no real estate,' and further alleging that at the time the writ of venditioni exponas was issued, based upon the land levy made June 30, 1936, William Isaacs, in truth and in fact, had no real estate upon which to levy. After further alleging that the sheriff is about to proceed to sell the real estate under the writ of venditioni exponas, the prayer of the petition is that the defendants in this action be enjoined from proceeding with the sale and enjoined from in any way interfering with the peaceable possession of the real estate by Louise Isaacs until adjudication of the action to set aside the deeds made to her by her father; and praying damages against Shelley M. Strain in the amount of $5,000 for illegally issuing the writ of venditioni exponas.
It may here be noted that neither in...
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