Opinion
No. 39797
Decided June 22, 1966.
Appeal — No bill of exceptions — Reviewing court must dismiss or affirm, when — Bill of exceptions necessary to determine issue presented.
Where an authenticated bill of exceptions in a trial court is necessary to exemplify the facts which determined the issues presented there, its absence requires a reviewing court on appeal to dismiss the appeal or affirm the judgment of the court from which the appeal is taken.
APPEAL from the Court of Appeals for Cuyahoga County.
This action was begun in the Court of Common Pleas of Cuyahoga County by Arthur Ford against Ideal Aluminum, Inc., an Ohio corporation, and Roger Haendiges, an individual, to recover from them the sum of $9,500 representing the amount of a summary judgment obtained by him against the defendants in the Village Court of Maywood, Cook County, Illinois, an alleged court of record in that state under Sections 23M and 333, Chapter 37 of the Revised Statutes of Illinois. Those sections are quoted in the petition herein.
It is asserted further in the petition that such Illinois judgment was rendered on September 7, 1963, and was based on a complaint filed by plaintiff against defendants for the commission by them of a tortious act against him in the state of Illinois; and that the Village Court of Maywood had jurisdiction of the subject matter and of the persons of the defendants by virtue of Section 17, Chapter 110 of the Illinois Revised Statutes, reading as follows:
"(1) Any person, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits said person, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of said acts:
"(b) The commission of a tortious act within this state;
"* * *
"(2) Service of process upon any person who is subject to the jurisdiction of the courts of this state, as provided in this section, may be made by personally serving the summons upon the defendant outside this state, as provided in this act, with the same force and effect as though summons had been personally served within this state."
Compare Section 17, Chapter 110 of the Illinois Revised Statutes, with Sections 2307.382 and 2307.383 of the Ohio Revised Code, effective in 1965. And, see "Historical and Practice Notes" under Section 17, Chapter 110, in Smith-Hurd Illinois Annotated Statutes (Perm. Ed.); annotation, 78 A.L.R. 2d 397, 406. See, also, Rosenblatt v. American Cyanamid Co., 15 L. Ed. 2d 39, 86 S. Ct. 1, opinion by Mr. Justice Goldberg individually in chambers; and see cases cited in footnote 8 to that opinion. Appeal dismissed; no substantial federal question. 382 U.S. 110, 15 L. Ed. 2d 192, 86 S. Ct. 256. See, further, Ohio's Long Arm Statute, Cleveland-Marshall Law Review, May 1966, page 363. Most, if not all, the states have statutes resembling our Section 2703.20, Revised Code, which provide a method for service of summons on out-of-state motorists, who, in the operation of their motor vehicles within the state, cause injury. Statutes of this kind have generally been held constitutionally valid and enforceable.
Additional allegations of the petition are that in the Illinois action personal service of summons was obtained upon both the defendants herein in the city of Cleveland, Ohio, on July 11, 1963, and that the Illinois money judgment against defendants stands unreversed, unmodified and in full force and effect, and that no part thereof has been paid.
A joint answer was filed by the defendants in which all the material allegations of the petition are denied in detail.
Thereafter, Ford filed his motion in the Court of Common Pleas for summary judgment against both defendants on the ground that there is "no genuine issue as to any material fact, and that this party [Ford] is entitled to judgment as a matter of law."
In support of the motion, as shown by the record in this court, the following documents and papers were presented to the Court of Common Pleas:
1. One certified copy of the journal entry of the Village Court of Maywood in the case of Arthur Ford, Plaintiff, vs. Ideal Aluminum Company, aka Ideal Aluminum, Inc., and Roger Haendiges, Defendants, dated September 7, 1963, under case No. 63L-34, signed by Robert E. McAuliffe, Judge of the Circuit Court of Cook County Illinois, and former Judge of the Village Court of Maywood, attached.
2. One certified copy of the summons and return of summons with petition and exhibits attached in the case of Arthur Ford vs. Ideal Aluminum Company, aka Ideal Aluminum, Inc., and Roger Haendiges in the Village Court of Maywood Illinois, in case No. 63L-34, showing personal service of summons upon defendants in Cleveland, Ohio on July 11, 1963.
3. Photocopies of Illinois Civil Practice Act Chapter 110, Sections 16 and 17, showing the Illinois statutes under which personal service was obtained in the city of Cleveland, Ohio, subjecting defendants to the jurisdiction of the Illinois courts, specifically the Village Court of Maywood, the original books of said statute to be submitted at the time of trial.
4. The complaint against plaintiff alleging theft, filed in the Municipal Court of Chicago.
In the documents above enumerated, it appears that the defendant herein Haendiges, an officer of the Ideal Aluminum Company, signed, swore to and filed in Chicago and in the Municipal Court of that city a complaint charging that Ford on October 20, 1962, in the city of Chicago, committed the offense of theft in violation of Section 16-1 b, Chapter 38 of the Illinois Revised Statutes, 1961, "in that he knowingly obtained by deception control over $2,295.90 the property of the Ideal Aluminum, Incorporated, intending to deprive the said Ideal Aluminum, Incorporated, permanently of the use and benefit of said property."
It appears further from the record that, at the hearing on such complaint, Ford was exonerated and discharged from custody, and his bail bond ordered cancelled. By reason of his alleged wrongful, unjustified and malicious prosecution, Ford claimed to have incurred expenses of $2,250 for securing his bail bond and for attorney fees and to have been materially damaged in his standing and reputation.
A summary judgment in Ford's favor was rendered by the Court of Common Pleas by the following journal entry:
"This cause came on for hearing on the motion of plaintiff for summary judgment in his favor. Upon consideration of the pleadings, exhibits, evidence, briefs and oral argument, the court finds that there is no genuine issue as to any material fact in the case, and the plaintiff is entitled to judgment as a matter of law. Wherefore, it is hereby ordered, and adjudged that plaintiff recover judgment against the defendants in the sum of nine thousand, five hundred dollars ($9,500), with interest at 6% from the date of the original judgment, September 4 [ sic], 1963, and costs of suit hereon." (Emphasis supplied.)
Thereupon, Haendiges perfected an appeal on questions of law to the Court of Appeals. Upon hearing, that court reversed the judgment below, and its judgment entry reads in part:
"It is therefore ordered, adjudged and decreed that the judgment of the Cuyahoga County Court of Common Pleas be, and the same is hereby reversed, as contrary to law and the cause is hereby remanded with instructions to overrule the motion for summary judgment for the reason that there is presented no bill of exceptions and it appears on the face of the record that there are issues of fact remaining for trial."
The cause is now in this court for disposition on an appeal as of right and the allowance of the motion to require the Court of Appeals to certify the record.
Messrs. Stewart DeChant and Mr. Thomas H. DeChant, for appellant.
Messrs. Cozza Steuer and Mr. C. Anthony Stavole, for appellee.
There was no bill of exceptions before the Court of Appeals, and the judgment entry of the Court of Common Pleas indicates that there was evidence introduced in and considered by that court. What that evidence may have been, its nature, form, significance and importance, and what admissions, concessions or other incidents may have occurred there are not shown. In the circumstances, it may be assumed that the evidence admitted by the trial court was competent, and that such evidence influenced the judgment rendered. A judgment pronounced by a court of record of general jurisdiction, regular on its face, carries with it the presumption of validity. 31 Ohio Jurisprudence 2d 687, Section 237.
This court has held on a number of occasions that, where an authenticated bill of exceptions in a trial court is necessary to exemplify the facts which determined the issues presented there, its absence requires a reviewing court on appeal to dismiss the appeal or affirm the judgment of the court from which the appeal is taken. See Knowlson v. Bellman, 160 Ohio St. 359, 116 N.E.2d 430; State, ex rel. Heights Jewish Center, v. Haake, 165 Ohio St. 547, 138 N.E.2d 401; State, ex rel. Cliffview Land Co., v. Maloney, Commr., 166 Ohio St. 45, 139 N.E.2d 40; and State, ex rel. Community Improvement Corp., v. City of Independence, 6 Ohio St.2d 70.
Such rule is applicable to summary-judgment proceedings. Smith v. Diamond Milk Products, Inc., 176 Ohio St. 143, 198 N.E.2d 72.
In the present case, since it had no bill of exceptions to consider and since a bill was necesary to determine the validity of the judgment of the Court of Common Pleas, the Court of Appeals on the record before it should have dismissed the appeal or affirmed the judgment below. Therefore, the judgment of the Court of Appeals is reversed, and the cause is remanded to that court for further proceedings not inconsistent with this opinion.
Judgment reversed.
MATTHIAS, O'NEILL and SCHNEIDER, JJ., concur.
HERBERT, J., concurs in the judgment.
TAFT, C.J., and BROWN, J., dissent.
I concur in the judgment but am unable to concur in the syllabus for the reasons stated in my dissenting opinion in Wickham v. First Federal Savings Loan Co., 177 Ohio St. 170.
As we held unanimously in Kindle v. City of Akron (1959), 169 Ohio St. 373, 159 N.E.2d 764, a judgment for plaintiff will be reversed where the petition does not state a cause of action, even though there is no bill of exceptions.
In the instant case, the petition purports to state a cause of action based upon an Illinois "judgment * * * rendered upon a complaint * * * for the commission of a tortious act within * * * Illinois." There is nothing in the petition to indicate what that tortious act was except the statement in the attached copy of the judgment "that malice is the gist of this action." The petition alleges "that personal service was obtained upon both defendants * * * in Ohio," and alleges no other basis for jurisdiction of the Illinois court to render the judgment sued on. The petition alleges and plaintiff relies upon an Illinois statute providing:
"(1) Any person, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits said person, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of said acts:
"(a) The transaction of any business within this state.
"(b) The commission of a tortious act within this state.
"(2) Service of process upon any person who is subject to the jurisdiction of the courts of this state, as provided in this section, may be made by personally serving the summons upon the defendant outside this state, as provided in this act, with the same force and effect as though summons had been personally served within this state."
There is no allegation that defendant transacted any business in Illinois.
It is stated in 30 American Jurisprudence 329, Section 265:
"It is a general rule of constitutional law that no judgment in personam can, consistently with due process, be rendered against a nonresident without personal service of process upon him within the territorial jurisdiction of the court in which the suit is brought, and that a judgment rendered without such service of process is not entitled to recognition in the courts of other states under the full faith and credit clause." See Armstrong v. Armstrong (1954), 162 Ohio St. 406, 123 N.E.2d 267, affirmed (1956), 350 U.S. 568, 100 L.Ed. 705, 76 S. Ct. 629; May v. Anderson (1953), 345 U.S. 528, 97 L.Ed. 1221, 73 S. Ct. 840, annotation, The Doctrine of Pennoyer v. Neff, 94 L.Ed. 1167, 1174, supplemented in 2 L.Ed. 2d 1664, 1666.
Statutes providing for other than personal service in the state on nonresident motorists are based upon the power of the state to require a license for use of its highways, and, therefore, to require appointment of a designated state official to accept service of summons in actions growing out of use of its highways as an exchange for the privilege of using those highways. See 8 American Jurisprudence 2d 408, Section 849; annotation, supra ( 94 L.Ed. 1167), 1177. No such factors can afford any reasonable basis for the application in the instant case of the Illinois statute relied upon.
Hence, because it appears from the petition that the Illinois judgment against defendant, an Ohio resident, was based only upon service outside Illinois and there is no reasonable basis for recognizing the constitutional validity of such service, the Common Pleas Court should have rendered judgment for defendant. It follows that the judgment of the Court of Appeals should be affirmed, although not for the reason which it specified.
BROWN, J., concurs in the foregoing dissenting opinion.