City Loan Sav. Co. v. Kyler

In this case, which originated in the Court of Common Pleas of Hancock county, Ohio, judgment was entered in favor of defendants, from which an appeal was taken to this court.

Defendant Fred C. Kyler executed and delivered to the plaintiff a promissory note for the sum of $69, bearing interest, containing a warrant of attorney empowering any attorney in Ohio to appear in any court of record in the state at any time after the note became due, and with or without process to confess judgment for defendant in favor of the legal holder for the amount appearing due.

After maturity of the note judgment was rendered by the Municipal Court of the city of Marion, Ohio, pursuant to the warrant of attorney, an attorney of Marion county, Ohio, appearing and answering for defendant.

A duly certified transcript of the record of said case in the Municipal Court was filed in the office of the clerk of courts of Marion county, Ohio, and an execution was issued by that officer to the sheriff of Hancock county, Ohio, who levied the same on real estate owned by defendant in the latter county.

The petition which initiated this suit was for the subjection of the real estate levied on to the satisfaction of the execution, and certain persons having apparent liens on said real estate were made defendants, but their presence need not be discussed.

Trial was had on an agreed statement of facts which in express terms limits the question for discussion to "determining whether or not by its [plaintiff's] action brought in the Municipal Court of Marion, Ohio, the filing on April 7, 1931, of the transcript in the Court of Common Pleas of Marion County, Ohio, the issue of the execution and the levy made by the Hancock county sheriff, that the plaintiff acquired a lien on the real estate belonging to Kyler."

Among the agreed facts it is stipulated that the certified transcript of the record hereinbefore mentioned did not set forth a copy of the note on which the judgment rested in the Municipal Court.

When the case was called in this court defendant Kyler moved the dismissal of the appeal on the grounds that the case was not appealable, and that the appeal was not perfected as required by the statutes. This motion was overruled.

No notice of appeal was given by plaintiff, who gave a bond, and neither the pleadings nor the agreed statement of facts show that the bond was not approved by the clerk; nor is the bond in the files of the case.

Whatever the law may have heretofore been on the necessity for notice of an appeal, there was at the time the appeal was attempted to be made in this case no statute requiring a notice of appeal.

The case having been docketed in this court as an appeal case, and a bond in appeal having actually been given by plaintiff, it must be presumed that it was in proper form and that it was approved by the clerk as the statute requires, nothing appearing in the agreed statement of facts or otherwise to the contrary.

Plaintiff's cause of action, being for the subjection of lands to the satisfaction of the judgment on account of which the execution was issued and levied, is clearly a chancery case within the intent of Article IV, Section 6 of the Constitution of Ohio.

Defendant Kyler insists that he is the owner of chattel property located within Hancock county, Ohio, upon which the execution might have been levied and satisfied, the same being covered by a chattel mortgage given plaintiff to secure payment of the note which resulted in the judgment, and consequently the levy was void under Section 11666, General Code; but there is nothing in the pleadings or agreed statement of facts concerning the circumstances attending the levy on defendant's real estate, which situation requires the presumption that the levy was lawfully made, for it is always to be presumed that a public officer acted rightfully. Well might Kyler have waived his right to have the land levied on and sold so that his chattels should be saved to him.

It is also urged by defendant Kyler that the Municipal Court of Marion county, Ohio, did not have jurisdiction to render judgment upon the warrant of attorney, because a justice of the peace could not render judgment at all pursuant to a warrant of attorney, and that the Court of Common Pleas did not have original jurisdiction of a cause of action on a contract for money only where the amount claimed was less than one hundred dollars.

It was settled in McCleary v. McLain, 2 Ohio St. 368, which case is still the law, that the jurisdiction of a justice of the peace is so limited that he can not render judgment under a warrant of attorney.

Thus we have the question whether in the absence of a statute providing that jurisdiction of the person by the Municipal Court of Marion, Ohio, may be obtained by that court in virtue of a warrant of attorney to confess judgment in a court of record, such as is contained in the promissory note upon which the judgment here in issue was rendered, which was the usual form of cognovit.

Determination of this question depends on the statutes which created the court and defined its jurisdiction, and to them we now turn, 111 Ohio Laws, 349, and following. Section 1579-761 to Section 1579-812, General Code. Our allusions will be to the section numbers of the General Code.

Section 1579-761, General Code, provides that the court, naming it as the "Municipal court of Marion, Ohio," "shall be a court of record". We will sometimes refer to it as the court.

By Section 1579-766, General Code, the court, among other subjects, "shall have original civil jurisdiction" in "All actions and proceedings at law for the recovery of money * * *, when the amount claimed * * * does not exceed one thousand dollars".

By Section 1579-790, General Code, an appeal shall not be allowed from the final judgment of the court, "On judgments rendered on confession of the party or parties."

Inasmuch as there is neither qualification nor exception in respect to the conferment of jurisdiction in an action at law for the recovery of money within the sum of one thousand dollars, and as the court is made one of record, and because of the implication of the power to enter judgments on confession in the aforesaid denial of the right of appeal from such judgments, there can be no reasonable foundation for the contention that the court does not have jurisdiction to pronounce a judgment on a warrant of attorney in proper form, as was the one in the note which resulted in the judgment on which the execution was issued in this case.

The case of State, ex rel. Finley, v. Miller, Presiding Judge,128 Ohio St. 442, 191 N.E. 465, while dissimilar in its facts to this case, is applicable in reasoning in its holding that subjects of jurisdiction denied to justices of the peace, as in Section 10232, General Code, are not excluded from the jurisdiction of a Municipal Court whose jurisdiction is in substance as it is in the case at bar.

Lastly, it is the position of defendant that the transcript of the judgment which was filed in the office of the clerk of courts was not a complete copy of the record of the court in this case, in that the transcript did not set forth a copy of the note, although it was otherwise a sufficient transcript, said omission having been designated in the transcript as Exhibit A.

Section 1579-784, General Code, enacts that one in whose favor a judgment is rendered by the court "may file a transcript of such judgment" (italics ours) in the office of the clerk of courts of Marion county in the same manner and under the same conditions as those governing the filing of transcripts of judgments rendered by justices of the peace.

Section 11659, General Code, which governs the filing of such transcripts, says that the party in whose favor a judgment is rendered may at any time after rendition — if no appeal be taken or the judgment stayed — file with the clerk of the Common Pleas Court of the county in which the judgment was rendered "a transcript thereof, having certified therein the amount, if any, paid thereon."

Section 1724, General Code, requires each justice of the peace to keep a docket in which he must make certain entries in detail of the various steps taken in each case before him, from number 1 to number 15, inclusive. Number 10, being the only one of importance here, reads as follows: "The judgment of the justice, specifying the items of costs included, and the time when rendered." And by Section 1725, General Code, the entries of the fifteen steps must be made under the title of the action to which they relate, and at the time when they occurred, and such entries in the justice's docket, or a transcript thereof, certified by the justice, shall be evidence to prove the facts stated therein.

Construing those sections together we hold that a transcript of a judgment within the meaning of Section 11659, General Code, is sufficient when it shows the title of the action, a judgment for one of the parties against another party, the amount of the judgment, the rate of interest it bears, if other than the legal rate, and the date of its rendition.

It would serve no useful purpose whatever to set forth in such transcript the many and various steps enumerated in Section 1724, General Code, leading up to the judgment, such as the date of summons, time of its return, adjournments, names of jurors when trial is had by jury, names of witnesses, and the like, for such matters could be of no value to the judgment debtor who, at least in law, had knowledge of all the things which had transpired before the justice of the peace.

Every other person would have constructive notice of the fact that such judgment existed, and, if concerned with its validity, would know where to find the record which resulted in the judgment, though resort to it might be attended by inconvenience.

The only possible purpose the filing of a transcript in the clerk's office can serve is to create a lien on real estate of the judgment debtor within the county, or to enable the owner of the judgment to have an execution issued.

Our conclusion on this matter finds support in that where an appeal is taken from a judgment of a justice of the peace, the justice shall, when bond has been given for appeal, make and deliver to appellant or his agent "a certified transcript of hisproceedings". (Italics ours.) Section 10384, General Code.

Pursuant to Section 12241, General Code, a judgment rendered by a justice of the peace may be reversed, vacated or modified by the Court of Common Pleas, and under Section 12263, General Code, the transcript to be filed by plaintiff in error shall be of the docket "entries". (Italics ours.)

We should add that in School District of City of Hastings v.Caldwell, Hamilton Co., 16 Neb. 68, 19 N.W. 634, the court held that under a statute to the effect that a transcript of a judgment of any district court of that state might be filed in the office of the clerk of the district court of any other county therein, a transcript of the judgment was sufficient when it was a copy of the judgment, though the transcript did not show jurisdiction over the judgment debtor.

Finding no barrier against the right of plaintiff to have foreclosure of its judgment lien, a decree will be entered ordering a sale of the real estate in issue and the case will be remanded to the Court of Common Pleas for all further proceedings.

Decree for plaintiff.

KLINGER and GUERNSEY, JJ., concur.