Sidebilder
PDF
ePub

tween the parties and their privies as if the, in doing so, may adjudge the conveyance of real suit had been an adversary one, and the con- property by one to the other, in pursuance of clusions embodied in the decree had been ren- such agreement." dered upon controverted facts and due consideration thereof by the court.” 15 Ruling

[4] However, there is another reason why Case Law, pp. 643–646.

this judgment should be affirmed. Even if it

be conceded that the husband had a right to The question we have here was featured make a collateral attack upon the consent and queried in the case of Olney v. Watts, decree obtained in November, 1912, it is ob43 Ohio St. 499, 3 N. E. 354. There the hus' vious, under this record and the finding of band attempted to obtain a modification of a the Court of Appeals on appeal, that the former alimony decree. It appeared that plaintiff in error cannot prevail. It seems there had been a consent decree whereby the that the Court of Appeals heard the issue wife released all her interest in her hus- whether the decree was made without notice band's real estate in consideration of the to the defendant or with the consent of the payment to her of alimony in certain parties, and found in favor of the wife upon amounts decreed by the court. However, the that issue. The evidence given by the wife, decree itself was not before the court in supported by that of her son and two of her that case.

In remanding the case, the judge daughters, tended to prove that the former delivering the opinion said at page 508 (3 N. alimony case was called by the court, and the E. 356):

evidence of the plaintiff submitted therein;

that at the close of the plaintiff's testimony “If, however, it shall, in the further progress a settlement was arrived at between the parof the case, appear that the former decree, in ties and their counsel, whereby marital restead of being in the nature of alimony pay. lations were to be resumed upon the condiable in installments for the support of the wife, was in the nature of a permanent division of tion and understanding that the husband was the husband's property, and that the parties to give to the wife an undivided one-third fixed the same by their own agreement, and the of the property and to keep and educate the action of the court in the premises was simply children; and that the trial judge was inan affirmance of the agreement by consent, this, formed of this agreement prior to the making if alleged and proved, may furnish a complete of the decree. After the making of that setdefense. As to that we express no opinion tlement and the resumption of marital re

lations on the part of the husband and wife,

if this testimony be true, the present contenSubstantially the same arguments as are tion of plaintiff in error evinces an attempt now urged by counsel for plaintiff in error upon his part to deny the wife the fruits of were made in the case of Julier v. Julier, the compromise after she has in good faith 62 Ohio St. 90, 56 N. E. 661, 78 Am. St. Rep. carried out her agreement by resuming her 697. Julier's wife had obtained a divorce marital relations with him. for his aggression on a petition containing

Under the authority of the principle ana prayer for general relief. An agreement nounced in Sanborn v. Sanborn, 106 Ohio St. with respect to alimony had been made be 641, 140 N. E. 407, the busband is clearly estween the husband and wife, where, in con- topped from questioning the validity of the sideration of sums paid to her, the wife re consent agreement in this proceeding. It is leased her dower in the husband's real es-conceded that after the agreement was made tate. The jurisdiction of the court to render the parties lived together as husband and the decree relating to the release of dower wife for nearly eight years. Should there be was contested, for the reason that the wife's a future separation between this husband dower right was not the subject-matter be- and wife, wherein alimony may again be fore the court for adjudication. The court prayed for, a court would no doubt give held that under her prayer for general re-consideration to the extent of alimony allief it was empowered to adjust the rights of lowed and approved in the former decree. the parties in respect to alimony, and, in

The judgment of the Court of Appeals is the course of the opinion, Williams, J., said,

affirmed. at page 111 (56 N. E. 661):

Judgment allirmed. "It appears to be well settled that in award

MARSHALL, C. J., and DAY and ALLEN, ing the alimony, the court may, in its discretion, and generally will, confirm and carry into JJ., concur. effect by its decree, any agreement which the

MATTHIAS, J., concurs in propositions 1 parties have entered into concerning the same, and 2 of the syllabus, and in the judgment. that the court deems just and reasonable, and WANAMAKER, J., not participating.

now."

(144 N.E.)

į to it. At the time of said purchase the West PENNSYLVANIA CO. V. WEST PENN RYS. Penn Railways Company owned 23,192 shares Co. (No. 18334.)

of the stock of the Wheeling Traction Com

pany, and at a later date purchased 171 ad(Supreme Court of Ohio. June 3, 1924.)

ditional shares, thereby acquiring all the (Syllabus by the Court.)

outstanding stock of the Wheeling Traction

Company. 1. Judgment Om847-Assignee of valid judgment may recover thereon in any court of

After the purchase of said judgments the competent jurisdiction of same state.

West Penn Railways Company brought ad The assignee and owner of a valid judgment action as assignee and transferee of said rendered in any court of record in Ohio may judgments against the Pennsylvania Commaintain an action and recover another judg- pany in the court of common pleas of Allen ment thereon in any court of competent ju- county, Ohio, basing its claims for judgment risdiction within this state.

solely upon the rendition of the former judg. 2. Judgment 920—Record and proof of own

ments and its present ownership thereof. ership sufficient in action on judgment stated. The Pennsylvania Company entered its vol.

In such action no other proof is necessary untary appearance in that action and filed an than the record of such former judgment and answer admitting the rendition of said judg. competent evidence of a valid assignment and ments, and that said judgments were rendertransfer thereof.

ed against the Pennsylvania Company and 3. Judgment w908-Action on Judgment main

the Wheeling Traction Company jointly, and tainable against one of two judgment debtors, that said companies were jointly charged who are joint tort-feasors, without service on with negligence, and that the Pennsylvania the other.

Company had always been ready and willing Where a judgment has been rendered against to pay one-half of said joint judgments, but two joint tort-feasors, an action can be main that the Wheeling Traction Company had retained and final judgment rendered upon the fused to pay its half thereof. The answer record of such judgment against one of such further alleges that by reason of the own. judgment debtors, even though no service of ership by the West Penn Railways Company summons is made upon the other judgment debt of a large amount of stock of the Wheeling or. There being no contribution between joint Traction Company, and the payment by the tort-feasors, the record of such judgment is a

West Penn Railways Company to said judg. joint and several liability.

ment creditors of the full amount of their

respective judgments, the transfer of said Error to Court of Appeals, Allen County. judgments to the West Penn Railways Com

Action by the West Penn Railways com- pany amounted to a conspiracy whereby it pany against the Pennsylvania Company. was sought to compel the Pennsylvania ComJudgment for plaintiff was affirmed by the pany to pay the entire amount of said judge Court of Appeals, and defendant brings er- ments. It further alleged that the purchase ror. Affirmed.-[By Editorial Staff.]

of said judgments in the manner aforesaid Wheeler & Bentley, of tima, for plaintiff thereof, and that said pretended payment of

amounted to a payment and satisfaction in error. McCahiu & McCahill, of Pittsburgh, Pa., Pennsylvania Company. The reply filed by

said judgments was in law a fraud upon the and W. H. Kinder, of Findlay, for defendant the West Penn Railways Company made dein error.

nial of those allegations. Upon the trial an

agreed statement of facts was submitted, in MARSHALL, C. J. On February 8, 1916, which certified transcripts of the judgments a collision occurred between an interurban were admitted, and it was also admitted that ar of the Wheeling Traction Company and “no merger or consolidation of the West Penn one of the trains of the Pennsylvania Com- Railways Company and the Wheeling Trace pany, as a result of which three passengers tion Company was ever had, but that each on the traction car were seriously injured, have ever since maintained independent or. to wit, John J. Williams, Charles B. Strahl, ganizations." and J. F. Lee Strahl. Each of said passen- In this proceeding the Pennsylvania Comgers brought actions against both railroad pany contends against the right of the West companies jointly for damages in the com- Penn Railways Company to acquire the joint mon pleas court of Mahoning county, Ohio, judgments rendered against the Wheeling and each of said passengers recovered a Traction Company and the Pennsylvania judgment against both railroads jointly. Company, and contends that such acquisiThe judgments so rendered were not being tion amounted to a payment and satisfac. paid by either of said defendants, and, execu- tion thereof, and further contends that, in. tions being threatened, the West Penn Rail- asmuch as the three judgments were renderways Company, a Pennsylvania corporation, ed in an Ohio court, no action can be mainpurchased all of said judgments and had tained to recover another judgment upon the same properly assigned and transferred such judgments in another Ohio court.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexos

[ocr errors]

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.

[ocr errors][merged small]

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

.

concur.

was

on

(144 N.E.) defendant, it would be the duty of the court | missible as an original, or as a copy of orig. in the exercise of its sound discretion to inal, without legal excuse for nonproduction assess the costs of such repeated adjudica- of original, in possession of third party. tions against the plaintiff in the action. 6. Appeal and error Eww1170(7)-Admission Under the circumstances of this particular of document in evidence held not prejudicial. case, however, as narrated in the foregoing Admission in evidence of duplicate copy of facts, it does not appear that the equities of unilateral agreement under seal not to sue the case required the costs or any part there- held not to injuriously affect substantial rights of to be taxed against the plaintiff in the of defendant, under G. L. c. 231, § 132; it not court of Allen county. The judgment of being argued that such an instrument was not the Court of Appeals will therefore be af- drafted, executed, and delivered. firmed.

7. Witnesses 379(2)-Evidence excluded Judgment affirmed.

held competent for impeachment purposes,

to show inconsistent statements. ROBINSON, JONES, MATTHIAS, DAY, Where witness denied that he told any and ALLEN, JJ.,

one on particular day that he had told driver WANAMAKER, J., not participating.

that he "cut in too quick," and that some day he would catch it for “turning in so quick” on automobiles, court erred in excluding testimony of another witness that he heard former

witness say that he told driver that some day QUINN V. STANDARD OIL CO. OF

he would get it for "driving so close," and NEW YORK et al.

now he had got it; this having a legitimate

tendency to impeach witness. (Supreme Judicial Court of Massachusetts. Hampden. May 22, 1924.)

8. Municipal corporations M706(6)—Negli

gence in operating truck held for jury. 1. Witnesses aw 248(2)-Refusal to strike out

In action for injuries resulting when dewords as Irresponsive proper.

fendant's truck, after striking an automobile, Where plaintiff

asked cross-collided with a wagon, held, that court propexamination if he had not settled with another, erly denied defendant's motion for directed claimed to be jointly liable, and replied that he verdict. had not settled, but had signed paper characterized by his lawyer as "covenant not to 9. Trial em 206–Judge may, but is not resue,” court did not err in refusing to strike

quired to, give instruction based on particout "covenant not to sue" as irresponsive.

ular view of conflicting evidence.

Where evidence of fact is conflicting, or 2. Compromise and settlement mw 23(2)— different inferences of fact may be drawn

Plaintiff had right to show money paid by properly from undisputed evidence, trial judge Insurer of one jointly liable not paid solely may, but is not required to, give instruction on account of liability of insured.

based on some particular view of a portion of In action for injuries, where defendant such evidence. charged that plaintiff had received full satis- 10. Appeal and error 359—Proper method faction in settlement with one claimed to be jointly liable, plaintiff had right to show money

of allowing exceptions after resignation of paid was in consideration of agreement under

judge. seal with insurance company, and not solely

Allowance of exceptions by judge who preon account of any alleged liability of insured. sided at trial after his resignation, and by an

other judge of superior court, was not proper 3. Evidence w 174(1)-One of two duplicate procedure; G. L. c. 231, $ 115, providing prop

originals admissible, without accounting for er means for allowance. other.

One of two duplicate originals was admis. sible in evidence, without accounting for non

Exceptions from Superior Court, Hamp production of other.

den County; Henry A. King, Judge.

Action of tort by William J. Quinn against 4. Trial Cun 207—Instrument containing declar

atory clauses against defendant held admis. the Standard Oil Company of New York and sible under proper instruction,

another for injuries received as result of colAn instrument was not inadmissible, to lision. Verdict for plaintiff, and the named show nature of settlement with another,' be- defendant brings exceptions. Exceptions suscause it contained declaratory clauses as to tained. defendant's liability; all reasonable chance of

E. A. McClintock, D. B. Hoar, and R. D. harm being eliminated by instruction to dis- Houlihan, all of Springfield, for plaintiff. regard declaratory clauses as not constituting evidence.

W. H. Brooks, J. P. Kirby, D. H. Keedy,

and C. Brooks, all of Springfield, for defend5. Evidence en 174(1)-Duplicate copy of unl. ants.

lateral covenant not to sue not admissible, without legal excuse for nonproduction of original,

PIERCE, J. This is an action of tort, Duplicate copy of a unilateral agreement brought originally against the Standard Oil under seal, a covenant not to sue, was not ad. | Company of New York and Jacob Chase, for

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

injuries received by the plaintiff as the re- tion in substance that the statement of the sult of a collision while he was driving a witness that the paper signed was a "covehorse and wagon southerly on Main street nant not to sue" did not prove that it was in Springfield, Massachusetts. All three par- such but was simply a statement of his unties were proceeding in the same direction derstanding of the nature and quality of the when a collision, between an automobile signed paper. driven by Chase and an oil truck of the At a later time in the trial, in proof of its Standard Oil Company and between the truck defense that there was a full settlement, the and the plaintiff's wagon, caused the horse defendant called as its witness one Clifford S. to bolt and threw the plaintiff out. The Lyon, who was counsel in the case for Jacob original declaration is not printed or re Chase; he was employed by the Maryland ferred to in the bill of exceptions.

Casualty Company which insured Chase and Before the trial the plaintiff filed a dis- was known to the attorneys for the plaintiff continuance as to Chase, which reads:

as the representative of the insurance com"In the above entitled action it is hereby pany. In direct examination this witness stipulated and agreed that said action be and was asked "whether * (the insurance the same is hereby discontinued without costs company] came to some settlement with the as against the defendant the said Jacob Chase attorneys for the plaintiff," and answered, and against him only, reserving all rights “I came to an agreement.” He was then against the defendant Standard Oil Company of asked, “How much money did you agree to New York."

pay unconditionally to the plaintiff?” and An amended declaration, without date but answered, “That is all set forth in the writpresumably filed after the entry of the dis- ten agreement.” The attorney for the decontinuance of the action against Chase, in fendant then said, “We are not a party to substance charged and attributed the injury any agreement they entered into.” To this

the court said: of the plaintiff to the negligent operation of the truck by the servants and agents of the As between the parties the written agreę. Standard Oil Company. The answer of the ment would be conclusive. I think that is all defendant thereto, in addition to a general I can say. That is, the rule is, gentlemen, bedenial, and an allegation of lack of due care into a contract, the writing is to bind us. But

tween parties, between you and me entering in the plaintiff which contributed to cause it here is raised by some one who was not a said injury, specifically alleged :

party. That is, the Standard Oil Company "If the defendant is liable

[it] is says: "We have nothing to do with the setliable jointly with one Jacob Chase of said tlement between the insurance company, if Springfield, with whom the plaintiff has set there was such a settlement, and the plaintiff.' tled this cause of action and discharged him * Therefore, I feel bound to allow this from liability thereon, by reason whereof the question. I think it is open to you to show defendant is not liable in this action. If the if you can that there was a complete settledefendant is liable it is liable jointly with one ment and you aren't limited to the contract itJacob Chase, of said Springfield; that the self.” plaintiff has accepted or agreed to accept from the said Jacob Chase a certain sum of money

Thereupon the witness answered: in satisfaction of the cause of action and of There

agreement entered into. all the damages alleged in the plaintiff's dec- Twenty-five hundred dollars was paid. I gave laration, by reason whereof the plaintiff's a check for that amount to Mr. Hoar. That cause of action is wholly settled and dis- was less than the amount of the policy." charged."

In cross-examination the witness said: At the trial, in support of its special

"That agreement was represented by cerdefense the defendant in cross-examination tain papers in writing. I have not the papers asked the plaintiff in substance if he had not with me, I sent them to the insurance comsettled with Chase during the week last pany in Boston immediately upon receipt of past; to this question and to many similar them. They were executed in duplicate. The questions put to him in a long cross-examina- paper that you now show me is the duplicate tion, the plaintiff replied in substance that show me is the duplicate of another paper."

of one of them. And the paper that you now he had not settled with Chase but had signed (These papers were marked for identification a paper which was characterized by his law- "12" and "13." yer as a “covenant not to sue."

[1] The exceptions taken to the refusal to The witness was then shown another paper strike out the words “covenant not te sue" which was the discontinuance of the action on the ground that the answer was irrespon- against Chase filed in court, supra. The witsive and should have been simply "yes or no"ness then testified tbat the sum of $2,500 had must be overruled, as the judge properly been paid by the insurance company through might consider, as he did, that the witness him, and “was paid for a discontinuance of could not accurately answer the question by the action and for a covenant not to bring a categorical yes or no; and the judge in any further suit." The defendant then asked the proper exercise of his discretion could that the last,” that is, that it was paid "for allow the answer to stand, with the instruc- a covenant not to bring any further suit,” be

was

an

« ForrigeFortsett »