Zingale v. Integrity Mortg. Co. ( 1928 )

This action comes into this court on appeal from the common pleas court of Cuyahoga county.

In the court below, the plaintiff brought an action to recover something like $200, and to foreclose a lien he claims to have on the property owned by the defendant. The court below held in favor of the plaintiff's claim, and the defendant appealed. How the court, in face of the record in this case, could make any such finding, it is difficult to understand. It seems that in another suit a mortgage company, who held a first mortgage upon this property, brought an action to foreclose its mortgage, and made the plaintiff and other lienholders parties defendant in those proceedings. The defendant in this action, the Integrity Mortgage Company, together with the Lake Shore Sawmill Company, and some other defendants, filed answers setting up their claims. The record and the journal entry show that the plaintiff in this action was made a party to that suit, and it is there set out that he was in default of answer and set up no claim. The journal entry then goes on to marshal liens and orders the sale of the property. The property was sold at sheriff sale, and the defendant in this action, the Integrity Mortgage Company, became the purchaser of that property, it having the fourth lien in order of priority. That sale was confirmed, and it became the owner of the property. Subsequently this suit was brought without any attempt to modify or change the entry in the former suit.

It is claimed in this action that the plaintiff in this action was not served with summons in the other action. The record of the court shows to the contrary. Now it is said in argument here that service of summons was upon the wrong party. How that may be, we do not know. But we do know you cannot attack collaterally that judgment, and, so long as that judgment stands unreversed or unmodified, the plaintiff in this action is barred and is bound by that judgment. Of course, if he was not made a party, or was not served, that would perhaps be a ground for setting aside that judgment by proper proceedings so that he could have his day in court, but he cannot do it by ignoring that judgment and filing a separate suit.

For all intents and purposes, the matter is res adjudicata, and has been decided against him.

The judgment in this case was therefore wrong, and the judgment of the court should be a decree for defendant, and the decree should contain a dismissal of the petition without prejudice, so that the plaintiff in this suit may, if he has not lost his day, go back into the common pleas court by a direct suit to set aside the judgment in that former action. But he cannot do it in the manner that is attempted here.

Decree for defendant.

SULLIVAN, P.J., and LEVINE, J., concur.