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money from the sheriff of Darke county in William and Sadie Sponseller were husthe said case. This reply is inconclusive, for band and wife. On July 6, 1920, Sadie, the the parties in question may have received wife, filed her action asking partition, claimnotes or some form of security and payment, ing ownership in fee simple of an undivided even if they did not receive money from the one-third part of certain premises in Crawsheriff of Darke county. Hence upon this ford county, Ohio, and also for an accountfeature of the case the reply is not good ing of rents and profits. The title to the against demurrer.

other two-thirds of the premises was concedThe demurrer to the reply was properly ed to be in the husband. Other issues in resustained and the judgment of the Court of lation to the conveyance of 2642 acres to one Appeals is affirmed.

Spaide and a mortgage to one Drexel were Judgment affirmed.

tried by the Court of Appeals and deter

mined in favor of the plaintiff and will not MARSHALL, C. J., and ROBINSON, be disturbed by this court. The alleged title JONES, MATTHIAS, DAY, and ALLEN, JJ., to the one-third of the premises which plain

tiff claims in her petition rests upon a cerWANAMAKER, J., not participating. tain decree made in a former case which

will be referred to later.

William Sponseller, the husband, filed his answer and cross-petition to this partition

case in which he made the following defense: SPONSELLER V. SPONSELLER. That on November 22, 1912, the wife filed (No. 18236.)

her petition in the Crawford county common

pleas court, praying for alimony; that, with(Supreme Court of Ohio. May, 1924.)

out trying the cause, the alimony case was (Syllabus by the Court.)

dismissed by mutual agreement on considera

tion that they should resume their relations 1. Husband and wife On 299 (1) Court may ag husband and wife, which mutual agree approve agreement adjusting alimony.

ment was carried into effect; and that the In a case where a wife sues for alimony, a decree awarding to plaintiff the undivided court has the power to approve an agreement made by the husband and wife adjusting such one-third of the premises was made without alimony.

notice to the husband, was without authori

ty in law, and was a cloud upon his title 2. Judgment Om 481-Consent decree adjusting to the premises. He therefore asked that alimony held not subject to collateral attack. plaintiff's petition in partition be dismissed

Where a court acquires jurisdiction over and the decree for alimony in the former case such subject-matter and the parties, a sent decree adjusting alimony cannot be col- be canceled and expunged, and for such gen

con

eral relief as he might be entitled. laterally attacked.

The decree in the previous alimony case, 3. Judgment em 90-When consent decree ad rendered on November 27, 1912, stated that justing alimony may be vacated stated. the cause came on to be heard

If such decree has been fraudulently procured, or obtained without consent, a party may “on the pleadings and the evidence, and was have such consent decree vacated at the same submitted to the court, upon the same and the term, or thereafter vacated or modified, under agreement of the parties herein, and the court sections 11631 and 11635, General Code.

being fully advised in the premises, and on con

sideration thereof finds that plaintiff was at the 4. Estoppel Om91(1)-Husband held estopped time of the filing of her petition herein, and

from collaterally attacking consent decree amendment thereto, and still is, a bona fide adjusting alimony.

resident of said county of Crawford and that Where a wife petitions for alimony, and the there is a separation of plaintitf from defendcourt by decree has approved an agreement be- ant in consequence of ill treatment on his part tween the husband and wife adjusting alimony, against her, and that by reason thereof, and whereby the husband agrees to convey proper- said agreement of the parties berein, the plainty to the wife on condition that she resumes tiff is entitled to alimony out of the real estate marital relations with him, and thereafter she, of the defendant hereinafter described, which in good faith, carries out the agreement, the is subject to the life estate of said Sarah A. husband is estopped from collaterally attack-Sponseller, the widow of one Samuel Sponseling the validity of such decree.

ler, deceased. It is therefore considered, or-
dered, adjudged, and decreed by court that said

plaintiff, Sadie Sponseller, have and possess as Error to Court of Appeals, Crawford and for alimony the equal one undivided third County.

part of the following described lands and teneSuit by Sadie Sponseller and William H. ments of defendant subject to said life estate, Sponseller. Judgment for plaintiff was af- further considered, ordered, adjudged and de

to wit: (Description of the premises.] It is firmed by the Court of Appeals and cause

creed by court that the said defendant, William remanded, and defendant brings error. Af- Sponseller, within 20 days thereof, execute and armed.--[By Editorial Staff.]

deliver over to plaintiff his certain deed of genFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

.

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eral warranty conveying unto her the said equal one undivided third part of said lands and tenements subject to said life estate, and in default thereof this judgment and decree shall operate as and for such deed and so much thereof as would show the transier of the title to said undivided equal one-third part of said real estate subject to said life estate shall be certified by the clerk of this court to the county recorder of said county for record. The court further finds that the charge made by the defendant as to the infidelity of the plaintiff is not sustained, and that defendant admits herein that said charges are not true, and all charges made by either party against the other are withdrawn. It is further considered, and adjudged by court that defendant pay all the costs herein taxed at $–*, and execution for such said costs is hereby awarded.”

This action in partition was filed in the common pleas court, which awarded partition and an accounting. The cause was appealed to the Court of Appeals, and in that court was heard upon its merits and subImitted upon the pleadings and the evidence. The Court of Appeals found from the issues joined in favor of the plaintiff, awarded partition of the premises, as prayed, gave judgment to the wife for $866.66 on the Spaide transaction, found the wife to be surety only on the Drexel notes and mortgage, found the wife to be entitled to an accounting for rents and profits, and remanded the cause to the common pleas court for that purpose. Thereupon the plaintiff in error instituted proceedings in error in this court, seeking a reversal of the decree of the Court of Appeals.

O. W. Kennedy and Gallinger & McCarron, all of Bucyrus, for plaintiff in error.

L. C. Feighner, of Bucyrus, for defendant in error.

JONES, J. In the suit for alimony filed by Sadie Sponseller on November 22, 1912, the court heard the case on the issues joined, found that the plaintiff was a bona fide resident of the county, and that there was a separation of the wife from the husband “in consequence of ill treatment on his part against her.” The court thereupon awarded her alimony under section 11998, General Code, decreeing that the wife should “have and possess as and for alimony the equal one undivided third part” of the premises described. There is no doubt, in the judgment of this court, that the decree entered by the court in the former alimony case was a decree by the consent of the parties. The phrase “agreement of the parties” is twice used in the journal entry. However, it is claimed by plaintiff in error that the court had no jurisdiction to render any decree, since the closing words thereof stated that “all charges made by either party against the other are withdrawn.” There may be some doubt as to whether said charges so withdrawn do not relate to the charges of

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infidelity, as it appears from the journal entry that the court in fact heard the case upon the pleadings and evidence and found that there was a separation because of ill treatment on the part of the husband. Even if the journal entry should be construed as withdrawing all charges made by either party, it at least discloses that it was an agreed entry whereby the parties settled the case by agreeing that the wife should “have and possess as and for alimony the equal one undivided third part” of the premises described. [1-3] The court having jurisdiction in the alimony case, both of the subject-matter and of the parties, had the right to enter the decree it did. The decree having been made by the agreement of the parties was an adjudication as effective as if the merits had been tried, and was not subject to collateral attack. Where the court has jurisdiction of both the subject-matter and the parties, and a consent decree has been entered by the court, such a decree is not even subject to direct attack, except for irregularity or fraud in its procurement. In Harding v. Harding, 198 U. S. 317, 335, 25 Sup. Ct. 679, 684 (49 L. Ed. 1066), Mr. Justice White quotes the following principle, as sustained by a large number of authorities therein cited:

“Decrees so entered by consent cannot be reversed, set aside, or impeached by bill of review or bill in the nature of a bill of review, except for fraud, unless it be shown that the consent was not, in fact, given, or something was inserted as by consent that was not consented to.”

If the decree of November 27, 1912, was not obtained by consent, or was procured by fraud, the husband had ample authority to have such consent expunged by the court during the term, or the entry vacated or modified after the term by a direct attack, under sections 11631 and 11635, General Code. It is not necessary to refer to the large number of authorities supporting the principle announced as to the effect and validity of judgments by agreement. These are collated in the numerous text-books relating to that subject, among which we find the following rule stated :

“Courts have the general power of entering judgment by consent of the parties, and a judgment may properly be entered by a court for the purpose of carrying out a settlement and compromise of a suit. * * * In one sense consent to the entry of a judgment appears to give it greater force than ordinary judgments. This is due to the fact that consent excuses errors and operates to end all controversy between the parties. In spite of the foregoing peculiarities of judgments by consent, the law has been broadly laid down that as between parties sui juris, and in the absence of fraud, a judgment or decree of a court having jurisdiction of the subject-matter, and rendered by consent of the parties, though without any ascertainment by the court of the truth of the facts averred, is as binding and conclusive between the parties and their privies as if the suit had been an adversary one, and the conclusions embodied in the decree had been rendered upon controverted facts and due consideration thereof by the court.” 15 Ruling Case Law, pp. 643–646.

The question we have here was featured and queried in the case of Olney v. Watts, 43 Ohio St. 499, 3 N. E. 354. There the husband attempted to obtain a modification of a former alimony decree. It appeared that there had been a consent decree whereby the Wife released all her interest in her husband's real estate in consideration of the payment to her of alimony in certain amounts decreed by the court. However, the decree itself was not before the court in that case. In remanding the case, the judge delivering the opinion said at page 508 (3 N. E. 356):

“If, however, it shall, in the further progress of the case, appear that the former decree, in stead of being in the nature of alimony payable in installments for the support of the wife, was in the nature of a permanent division of the husband's property, and that the parties fixed the same by their own agreement, and the action of the court in the premises was simply an affirmance of the agreement by consent, this, if alleged and proved, may turnish a complete defense. As to that we express no opinion now.”

Substantially the same arguments as are now urged by counsel for plaintiff in error were made in the case of Julier v. Julier, 62 Ohio St. 90, 56 N. E. 661, 78 Am. St. Rep. 697. Julier's wife had obtained a divorce for his aggression on a petition containing a prayer for general relief. An agreement with respect to alimony had been made between the husband and wife, where, in consideration of sums paid to her, the wife released her dower in the husband's real estate. The jurisdiction of the court to render the decree relating to the release of dower was contested, for the reason that the wife's dower right was not the subject-matter before the court for adjudication. The court held that under her prayer for general relief it was empowered to adjust the rights of the parties in respect to alimony, and, in the course of the opinion, Williams, J., said, at page 111 (56 N. E. 664):

“It appears to be well settled that in awarding the alimony, the court may, in its discretion, and generally will, confirm and carry into effect by its decree, any agreement which the parties have entered into concerning the same, that the court deems just and reasonable, and

in doing so, may adjudge the conveyance of real property by one to the other, in pursuance of such agreement.”

[4] However, there is another reason why this judgment should be affirmed. Even if it be conceded that the husband had a right to make a collateral attack upon the consent decree obtained in November, 1912, it is obvious, under this record and the finding of the Court of Appeals on appeal, that the Plaintiff in error cannot prevail. It seems that the Court of Appeals heard the issue Whether the decree was made without notice to the defendant or with the consent of the parties, and found in favor of the wife upon that issue. The evidence given by the wife, supported by that of her son and two of her daughters, tended to prove that the former alimony case was called by the court, and the evidence of the plaintiff submitted therein; that at the close of the plaintiff's testimony a settlement was arrived at between the parties and their counsel, whereby marital relations were to be resumed upon the condition and understanding that the husband was to give to the wife an undivided one-third of the property and to keep and educate the children; and that the trial judge was informed of this agreement prior to the making of the decree. After the making of that settlement and the resumption of marital relations on the part of the husband and wife, if this testimony be true, the present contention of plaintiff in error evinces an attempt upon his part to deny the wife the fruits of the compromise after she has in good faith carried out her agreement by resuming her marital relations with him.

Under the authority of the principle announced in Sanborn v. Sanborn, 106 Ohio St. 641, 140 N. E. 407, the husband is clearly estopped from questioning the validity of the consent agreement in this proceeding. It is conceded that after the agreement was made the parties lived together as husband and wife for nearly eight years. Should there be a future separation between this husband and wife, wherein alimony may again be prayed for, a court would no doubt give consideration to the extent of alimony allowed and approved in the former decree.

The judgment of the Court of Appeals is affirmed.

Judgment assirmed.

MARSHALL, C. J., and DAY and ALLEN, J.J., concur.

MAT THIAS, J., concurs in propositions 1 and 2 of the syllabus, and in the judgment.

WANAMAKER, J., not participating.

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PENNSYLVANIA CO. W. WEST PENN RYS. C0. (No. 18334.)

(Supreme Court of Ohio. June 3, 1924.)

(Syllabus by the Court.) 1. Judgment 6-847–Assignee of valid judgment may recover thereon in any court of competent jurisdiction of same state. The assignee and owner of a valid judgment rendered in any court of record in Ohio may maintain an action and recover another judgment thereon in any court of competent jurisdiction within this state.

2. Judgment 6-920–Record and proof of ownership sufficient in action on judgment stated. In such action no other proof is necessary than the record of such former judgment and competent evidence of a valid assignment and transfer thereof.

3. Judgment 8-908–Action on judgment maintainable against one of two judgment debtors, who are joint tort-feasors, without service on the other. Where a judgment has been rendered against two joint tort-feasors, an action can be maintained and final judgment rendered upon the record of such judgment against one of such judgment debtors, even though no service of summons is made upon the other judgment debtor. There being no contribution between joint tort-feasors, the record of such judgment is a joint and several liability.

Error to Court of Appeals, Allen County.

Action by the West Penn Railways Company against the Pennsylvania Company. Judgment for plaintiff was affirmed by the Court of Appeals, and defendant brings error. Affirmed.—[By Editorial Staff.]

Wheeler & Bentley, of Eima, for plaintiff in error.

McCahill & McCahill, of Pittsburgh, Pa., and W. H. Kinder, of Findlay, for defendant in error.

MARSHALL., C. J. On February 8, 1916, a collision occurred between an interurban car of the Wheeling Traction Company and one of the trains of the Pennsylvania Company, as a result of which three passengers on the traction car were seriously injured, to wit, John J. Williams, Charles B. Strahl, and J. F. Lee Strahl. Each of said passengers brought actions against both railroad companies jointly for damages in the common pleas court of Mahoning county, Ohio, and each of Said passengers recovered a judgment against both railroads jointly. The judgments so rendered were not being paid by either of said defendants, and, executions being threatened, the West Penn Railways Company, a Pennsylvania corporation, purchased all of said judgments and had the same properly assigned and transferred

to it. At the time of said purchase the West Penn Railways Company owned 23,192 shares of the stock of the Wheeling Traction Company, and at a later date purchased 171 additional shares, thereby acquiring all the outstanding stock of the Wheeling Traction Company. After the purchase of said judgments the West Penn Railways Company brought an action as assignee and transferee of said judgments against the Pennsylvania Company in the court of common pleas of Allen county, Ohio, basing its claims for judgment solely upon the rendition of the former judgments and its present ownership thereof. The Pennsylvania Company entered its voluntary appearance in that action and filed an answer admitting the rendition of said judgments, and that said judgments were rendered against the Pennsylvania Company and the Wheeling Traction Company jointly, and that said companies were jointly charged with negligence, and that the Pennsylvania Company had always been ready and willing to pay one-half of said joint judgments, but that the Wheeling Traction Company had refused to pay its half thereof. The answer further alleges that by reason of the ownership by the West Penn Railways Company of a large amount of stock of the Wheeling Traction Company, and the payment by the West Penn Railways Company to said judgment creditors of the full amount of their respective judgments, the transfer of said judgments to the West Penn Railways Company amounted to a conspiracy whereby it was sought to compel the Pennsylvania Company to pay the entire amount of said judgments. It further alleged that the purchase of said judgments in the manner aforesaid amounted to a payment and satisfaction thereof, and that said pretended payment of said judgments was in law a fraud upon the Pennsylvania Company. The reply filed by the West Penn Railways Company made denial of those allegations. Upon the trial an agreed statement of facts was submitted, in which certified transcripts of the judgments were admitted, and it was also admitted that “no merger or consolidation of the West Penn Railways Company and the Wheeling Traction Company was ever had, but that each have ever since maintained independent organizations.” In this proceeding the Pennsylvania Company contends against the right of the West Penn Railways Company to acquire the joint judgments rendered against the Wheeling Traction Company and the Pennsylvania Company, and contends that such acquisition amounted to a payment and satisfaction thereof, and further contends that, inasmuch as the three judgments were rendered in an Ohio court, no action can be maintained to recover another judgment upon such judgments in another Ohio court.

gr: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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On the first of these propositions it ap-, der to procure an attachment and garnishpears from the agreed statement of facts ment of moneys due to the Pennsylvania that the West Penn Railways Company did Company payable in Allen county. It may not own all of the stock of the Wheeling be wondered why the West Penn Railways Traction Company, and for this reason its Company did not merely bring proceedings action in purchasing the judgments would in aid of execution in that county, instead of not amount to a payment and satisfaction of asking for a new judgment, and it may be the judgments, and the further fact that the wondered, on the other hand, how the Penn. West Penn Railways Company acquired the sylvania Company has been prejudiced by balance of the stock of the Wheeling Trac- the suit for judgment rather than a proceed. tion Company at a date subsequent to the ing in aid of execution. One proceeding purchase of said judgments, would not aid would not be materially more or less ex. in producing that result. We are further pensive than the other. Neither would one of the opinion that, even if the West Penn be materially more or less annoying than the Railways Company had owned all of the other. stock of the Wheeling Traction Company at Upon consideration of the statement of the time of the purchase of such judgments, facts, the court of common pleas of Allen it would have made no difference. It ap county reached the conclusion that the West pears from the admitted facts that there Penn Railways Company was the owner of never had been any merger, and that sepa- the judgments rendered in Mahoning counrate corporate organizations had always been ty, and, the Pennsylvania Company being in maintained. This specific admission is ful- court, and the Wheeling Traction Company ly supported by other detailed admissions in not having been served with summons and the statement of facts, showing that separate not being in court, judgment was rendered and distinct boards of directors managed the against the Pennsylvania Company for the affairs of said corporations, and this court | full amount of the judgments. The Court or any other court may not thus collateral- of Appeals affirmed that judgment, and this ly inquire in an independent action into the court can find no error in that affirmance. relations of the two corporations to deter [3] There being no contribution between mine whether such relations were in violation joint tort-feasors, and the full amount of the of the corporate laws of the state of the judgment being recoverable against either of residence of the one or the other. The the defendants, the assignee of the judgments Wheeling Traction Company, being a cor- could proceed against either or both, and the poration organized under West Virginia laws judgment against the Pennsylvania Company and the West Penn Railways Company is therefore valid, even though the Wheeling being organized under Pennsylvania laws | Traction Company was never served in the a determination of the corporate status of suit in Allen county. either of those companies can only be made [1, 2] The rights of a judgment creditor or in a proper proceeding in the courts of one or the assignees of a judgment creditor to bring the other of those states. In this independ successive suits to recover successive judgent action the presumption obtains than ments have been determined by this court in they were separate and distinct corporations the affirmative in several early cases which and this presumption becomes absolutely have been approved in later cases. That conclusive in view of the admissions con- proposition has full approval in Headley v. tained in the statement of facts.

Roby, 6 Ohio, 521; Tyler's Ex'rs v. Winslow, The West Penn Railways Company having 15 Ohio St. 364; Moore v. Ogden, 35 Ohio purchased the judgments from the owners St. 430. The principle has been approved in thereof, and it appearing from the admitted Doyle v. West, 60 Ohio St. 438 (54 N. E. 469), facts that full value was paid therefor, it and the principle is discussed at length on only remains to inquire whether an action page. 446 of the opinion. can be maintained in the court of common We are unable to see that any inju ice has pleas of Allen county to obtain a judgment in been done by the rendition of the additional that county by the assignee and transferee judgment, except in the matter of additionof judgments rendered in the court of com- al costs. But, inasmuch as an answer was mon pleas of Mahoning county.

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filed setting up a defense of fraud and conThe objection urged by counsel for the spiracy which was not sustained by the trial Pennsylvania Company is that such an ac- court, the Pennsylvania Company may not tion cannot be maintained unless there is justly be heard to complain of the additional some particular reason why such action is costs. necessary. It is on the other hand the con Section 11628, General Code, gives to the tention of the counsel for the West Penn trial court a discretion in the award and Rail Company that the mere existence taxa on of costs according to the equities of of one judgment does not preclude the entry the case, and, if it should be made to appear of another judgment, even though the only that a judgment creditor is seeking to obproof submitted is the record of such former tain repeated adjudications and to have one judgment. It is, however, contended that it judgment after another entered upon the was necessary to bring the latter suit in or same cause of action and against the same

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