5721 | Ohio Ct. App. | Nov 21, 1939
This is an appeal from a ruling of the *509 Common Pleas Court of Hamilton county, Ohio, sustaining the demurrer of The Fifth-Third Union Trust Company, trustee, to the petition, and, upon the plaintiff refusing to plead further from the judgment of that court dismissing the petition.
The petition shows that plaintiff, Rose L. Devou, appellant herein, is a resident of San Francisco, California, and that the defendant, William P. Devou, appellee herein, is also a resident of San Francisco, California. Appellant filed her petition in the Common Pleas Court of Hamilton county, Ohio, against William P. Devou, and The Fifth-Third Union Trust Company, trustee under the will of Charles P. Devou, deceased.
In her petition she alleges that on the second day of January 1934, she recovered a judgment against the appellee, William P. Devou, in the Superior Court of the state of California, whereby he was to pay her the sum of $130 per month, for the support and maintenance of herself and her three minor children; that on October 19, 1936, that judgment was modified in that the payments were reduced to $110 per month; that appellee, William P. Devou, has failed to make any payments and there is now due her the sum of $1,960; that appellee, William P. Devou, has no personal or real property subject to levy or execution within the jurisdiction of this state sufficient to satisfy her judgment; and that under the will of one Charles P. Devou, deceased, William P. Devou is a beneficiary of the income of a certain fund in the hands of the other appellee, The Fifth-Third Union Trust Company, trustee, by which he is entitled to receive the sum of $150 per month. The prayer of the petition is that the appellees be enjoined respectively from receiving or paying this fund, and that the same be applied to the satisfaction of the unpaid judgment.
When the suit was filed, plaintiff caused a summons to be issued for both The Fifth-Third Union Trust Company, trustee, and William P. Devou. The summons *510 for William P. Devou was returned unserved, and no attempt was made at the time the suit was filed, nor at any time since, to get constructive service upon him, although the petition shows that he is a resident of the state of California.
This is an action under Section 11760, General Code, which reads as follows:
"When a judgment debtor has not personal or real property subject to levy on execution sufficient to satisfy the judgment, any equitable interest which he has in real estate, as mortgagor, mortgagee, or otherwise, or any interest he has in a banking, turnpike, bridge, or other joint stock company, or in a money contract, claim, or chose in action, due or to become due to him, or in a judgment or order, or money, goods, or effects which he has in the possession of any person, or body politic or corporate, shall be subject to the payment of the judgment, by action."
Under the provision of this section, two things appear to be necessary: First, there must be a judgment debtor; and second, he must not have property subject to levy on execution sufficient to satisfy the judgment. Is the appellant in this case such a judgment creditor? We think not. Her judgment was obtained in the state of California, and a judgment upon which an execution may issue must be a judgment rendered in the courts of this state. One can not have an execution issued in this state upon a judgment of a California court.
Before this action can be maintained, it is not only necessary that the appellee have neither personal nor real property subject to levy on execution, but the appellant must have a judgment on which an execution can issue.
In the case of Hegler v. Grove,
"In such case the remedy of a creditor is by a proceeding in aid of execution, under Section 5464, Revised *511 Statutes, to reach the equity of redemption, and have it applied to the payment of his judgment. A judgment on which execution may issue is essential to the proceeding."
In the case of Carver v. Williams, 10 Am. Law Rec., 310, 6 Dec. Rep., 1084, the second paragraph of the syllabus is as follows:
"A creditor's bill which merely avers that the judgment sought to be realized was recovered by plaintiff against defendant is insufficient to create a claim upon the defendant, and is therefore demurrable. There being no allegation that the judgment was rendered by a court in Ohio having jurisdiction."
The general rule is stated in 15 Corpus Juris, 1394, Section 36, as follows:
"The weight of authority is that a creditors' bill can not be based upon a judgment rendered in another state. In some cases judgments recovered in sister states have been held sufficient, but these cases usually contain special elements."
It is therefore well settled both in Ohio and elsewhere that a creditor's bill can not be maintained on a judgment rendered in a foreign state.
Another reason why the lower court was correct in sustaining the demurrer, is that the appellee, William P. Devou, was a necessary party to this action. To substantiate this position, we cite 15 Corpus Juris, 1415, Section 117, as follows:
"It is a general rule that the judgment debtor is a necessary party defendant in an action to subject his equitable interests to the payment of a judgment, even though he is a non-resident."
Appellant in her brief admits that William P. Devou is a necessary party defendant. What the appellant is trying to do in this case is to recover from The Fifth-Third Union Trust Company, trustee, the sum of $1,960, which it owes or will owe to William P. Devou, *512 without bringing him within the jurisdiction of this court.
We believe it is necessary for William P. Devou to be a party in this case, and to be before this court, that he may have his rights adjudicated herein, so as to protect The Fifth-Third Union Trust Company, trustee.
A judgment rendered in a foreign jurisdiction is only the basis for an action in this state, and must be reduced to a judgment in this state before the remedies provided by the General Code for enforcing judgments are available.
"Unless so provided by statute in the state where enforcement is sought, a judgment recovered in one state is not executory in any other state in the sense that final process for its enforcement could issue on merely filing or docketing the judgment, as in the case of a domestic judgment. The constitutional provision for giving `full faith and credit' to such judgments relates only to their effect as evidence or as a bar to further litigation, and in order to proceed for the collection of a judgment recovered in another state, the creditor must first sue upon it in the state where he wishes to enforce it and recover a judgment upon it." 34 Corpus Juris, 1137, Section 1612.
We are, therefore, of the opinion that the court below properly sustained the demurrer, and it follows that the judgment is hereby affirmed.
Judgment affirmed.
SHERICK, P.J., and MONTGOMERY, J., concur.
SHERICK, P.J., LEMERT and MONTGOMERY, JJ., of the Fifth Appellate District, sitting by designation in the First Appellate District. *513