Opinion
Decided March 4, 1935.
Banks and banking — Conflict of laws — Foreign bank receiver's action to collect stockholder's statutory liability — Capacity to maintain action — Judicial notice not taken of foreign law — Error proceedings — Refusal to discharge attachment final order — Depositions — Admissible in evidence to prove claim meritorious, when — Stockholder failed to answer — Deposition, if defective, admissible as affidavit, when — Notice of taking — Sections 11534 and 11535, General Code — Trial court given no extraterritorial jurisdiction — Notice by publication unnecessary in lieu of actual notice — Section 11536, General Code — Objection for failure to give security for costs necessary, when — Extra time to file answer properly refused, when.
1. As the law of a sister state is a fact in this state, Ohio courts will not take judicial notice of it.
2. This court has jurisdiction to review the order of a trial court on a motion to discharge an attachment, as such an order affects the substantial rights of the parties. (Price Hill Colliery Co. v. Old Ben Coal Corp., 38 Ohio App. 151, approved and followed.)
3. Where a deposition is used at a hearing, on a defendant's default to file an answer, to prove that the plaintiff has a meritorious case, no error is committed even though the notice of the taking of the deposition should be defective.
4. An affidavit may be used upon a motion, and if there is a defect in serving notice to take a deposition under Sections 11534 and 11535, General Code, which would exclude it as a deposition, it will still be the affidavit of the witness, available for all purposes for which the law permits affidavits to be used, such as, to prove plaintiff's case upon a motion for a default judgment.
5. Sections 11534 and 11535, General Code, providing for a method of notice to the adverse party when depositions are to be taken, do not attempt to give the trial court extraterritorial jurisdiction, as the law contemplates that notice will be served by the party and not by an officer of the court.
6. The method of serving notice by publication on a party when a deposition is to be taken, as provided in Section 11536, General Code, is permissive in its terms and not mandatory so as to require constructive implied notice to a non-resident defendant in lieu of actual notice.
7. Failure of the trial court to require the plaintiff to give security for costs, under Section 11614, General Code, requiring a non-resident of a county to give security for costs, is not reversible error where the defendant fails to move the court to that end.
8. Where a litigant fails to file an answer, it is not error for the trial court to refuse to grant time to the litigant to answer after the evidence on default was presented and the decision thereon was announced.
9. A receiver, appointed under the laws of a sister state to collect from stockholders their statutory liability, has sufficient right and title to the chose to maintain an action thereon in Ohio courts as a matter of right as well as comity.
ERROR: Court of Appeals for Hamilton county.
Messrs. Clark Robinson, for plaintiff in error.
Mr. Leo Weinberger, for defendant in error.
On October 30, 1933, Detroit Trust Company, a corporation under the laws of the State of Michigan, instituted an action in the Court of Common Pleas of Hamilton county, as receiver of the Guaranty Trust Company, against Grace A. Devine, to recover the amount of her statutory obligation as a stockholder of Guaranty Trust Company, which had become insolvent. An affidavit in attachment was filed at the same time, averring that under the law of Michigan a stockholder's obligation was contractual and that the defendant was a non-resident. Upon this affidavit certain real estate was attached without a bond being given.
Proper proceedings were taken to serve the defendant with notice by publication. The affidavit for constructive service showed that the defendant resided in the state of Michigan.
On December 18, 1933, the defendant entered a special appearance for the purpose of moving to discharge the attachment on several grounds, to wit, that the court had no jurisdiction of the parties, that the affidavit in attachment did not set forth a ground for relief recognized under the laws of Michigan, that a bond was required as a pre-requisite for attachment, that citizens of Ohio were forbidden to seek this relief in foreign jurisdictions, that the laws of the state of Michigan do not afford such relief to non-residents, and that the cause sued on did not arise out of contract. The defendant filed an affidavit in support of her motion, averring that she owned certain real estate in Detroit, Michigan, but stated nothing as to its value. A counter-affidavit was filed to the effect that there was a mortgage for $250 on the real estate, and that it had no value beyond the incumbrance. Conflicting affidavits were also filed as to the ability to get service upon the defendant in Michigan according to its laws. Upon hearing, the court overruled the motion to discharge the attachment.
On May 17, 1934, the plaintiff served the defendant in Detroit, Michigan, with written notice that depositions would be taken at a designated place in that city on the 25th day of May, 1934. The depositions were taken and filed in the cause on June 4, 1934, the defendant not having appeared at the taking of the depositions.
On May 31, 1934, the plaintiff filed a motion for judgment by default.
Upon June 12, 1934, the case came on for hearing on the motion for a default judgment; the defendant having been given sufficient notice by registered mail. At this hearing the attorney for the defendant appeared and took some part in the proceedings, but disclaimed any intent to enter a general appearance for the defendant. Evidence was presented and judgment rendered for the plaintiff.
At the hearing on default, the defendant's attorney objected to the reading or introduction in evidence of the deposition, on the ground that the law made no provision for service of notice outside of the state of the taking of depositions. This objection was overruled. After the court had heard the evidence and announced that judgment might be entered for the plaintiff, the defendant's attorney stated to the court that the defendant had several defenses. He was directed to present them. He then stated that the plaintiff had not sued the other stockholders, which the court ruled was no defense. Defendant's attorney then asked leave to file an answer, which leave was refused, and at this hearing defendant's counsel also called the court's attention to the fact that security for costs had not been given.
The judgment entry was made on June 12, 1934, and on July 5, 1934, the petition in error was filed herein to secure a reversal of the actions of the trial court.
The parties here are at all times referred to by their positions in the trial court.
The defendant filed a bill of exceptions on July 9, 1934, in which are set forth the proceedings and evidence upon the default, the substance of which has been given, and this bill of exceptions was later filed in this case in this court.
The first contention is that the attachment was defective for the reason set forth in the motion to discharge it. At the outset it should be observed that there is no proof in the record of the law of Michigan. As the law of another state is a matter of fact in the courts of this state, of which we do not take judicial knowledge (Louisville Nashville Ry. Co. v. Greene, Admx., 113 Ohio St. 546, 149 N.E. 876; 17 Ohio Jurisprudence, 50, Section 24), we cannot assume that such law is different from the law of this state. (Mendelson v. Mendelson, 123 Ohio St. 11, 173 N.E. 615; 17 Ohio Jurisprudence, 115, Section 94.)
We must assume that every principle of comity is observed by that state, and should not withhold from the plaintiff any remedy the law affords upon any theory of retaliation. The plaintiff having invoked the remedy afforded by the law of the forum, and having performed all the conditions precedent, we know of no principle upon which the remedy could be denied.
We should at this point refer to the plaintiff's contention that this court had no jurisdiction to review the order of the trial court on the motion to discharge the attachment, for the reason that as to that order these proceedings were not instituted within the time required by law. That such an order is a final order affecting a substantial right was decided by this court in Price Hill Colliery Co. v. Old Ben Coal Corp., 38 Ohio App. 151, 175 N.E. 755. Upon the expiration of the term at which it was entered the plenary power of the trial court over it came to an end. It could only be vacated or reversed in the manner and time prescribed by statute. The petition in error in this case was not filed until more than seventy days after the order refusing to discharge the attachment. It was, therefore, filed too late to confer jurisdiction upon the court to reverse the order had error intervened. We, however, do not find that there was error. The petition in error was filed within seventy days of the final judgment on default, and, therefore, confers jurisdiction to review the action of the court in that respect.
It is urged that the court erred in admitting the deposition in evidence. It should be noted here that this deposition was used at the hearing on the default to prove that the plaintiff had a meritorious cause. If the defendant desired to contest the merits she should have filed an answer placing the allegations of the petition in issue. She was in default and thereby had confessed the allegation to be true. Section 11592, General Code.
What proof, if any, other than the confession of the defendant, the court would require in this situation in this type of case rested in the discretion of the court. Dallas v. Ferneau, 25 Ohio St. 635. It is a general rule that affidavits may be used upon a motion, and if there was any defect in the manner of serving the notice to take the deposition that would exclude it as a deposition it would still be the affidavit of the witnesses, available for all purposes for which the law permits affidavits to be used. As it rested in the discretion of the court to require evidence on the default, the defendant has no basis for complaint that the court exercised its discretion by permitting proof by affidavits.
We are of the opinion that notice for the taking of the deposition was properly served. The only requirements of the law (Sections 11534 and 11535, General Code), are that the notice shall be in writing, specifying the time and place, and that it shall be served so as to allow the adverse party sufficient time to prepare and be present. The law contemplates that the notice will not be served by an officer, but by the party. It is not done in pursuance of any order of the court. It is not an attempt of the court to exercise extra-territorial jurisdiction. If any coercive measures are resorted to they must be those of the jurisdiction in which the deposition is taken, applied by the officers and tribunals thereof.
The method of notice by publication, as authorized by Section 11536, General Code, is permissive by its terms and we can think of no valid reason for construing it as mandatory so as to require constructive implied notice to a non-resident defendant in lieu of actual notice.
Next, it is contended that this judgment should be reversed for the reason that the court did not require the plaintiff to give security for costs. By Section 11614, General Code, a non-resident of the county is required to give security for costs. This requirement is primarily for the protection of the public, and is not jurisdictional. If the defendant desired security for her own protection in the event she should be successful in defeating the plaintiff's claim, she should have moved the court to that end. She did not do that. The only reference to the subject was a statement by her counsel at the close of the trial that no security had been given. This was not in proper form to invoke action by the court; it came too late and at a time when the court had announced its decision for the plaintiff on the merits. It certainly is too late to ask security when the court has already decided that the defendant should pay the costs. Security is against the contingency that the plaintiff's claim is without merit, and because thereof there would be no one within the jurisdiction to whom to look for payment; and perhaps no property. After it is made to appear that the defendant, or her property within the jurisdiction, is liable, there is supplied that which was missing at the beginning. Certainly a defaulting defendant, against whose property the costs have been properly charged, is in no position to complain that the plaintiff was not required to give security for costs.
Next, it is contended that the court abused its discretion in refusing to allow the defendant to file an answer. The record shows that at no time did the defendant tender an answer with the request for leave to file. The court gave defendant every opportunity to present any defense she might have, even without the filing of an answer. She did not avail herself of that opportunity, the extension of which can only be characterized as a liberal attitude toward giving the defendant her day in court, rather than an abuse of discretion preventing her from presenting any defense she had. Under the circumstances we think the court exercised a sound discretion in refusing to grant time to answer after the evidence on the default, and the decision was announced.
Finally, it is urged that the court, of its own motion, should have refused to grant relief to the plaintiff because plaintiff was a receiver appointed by the court in another state, and for that reason had no capacity to sue in this state. Unless there is presented some conflicting local interest the courts of one state, as a matter of comity, will permit a receiver appointed by a court of another state to sue. 34 Ohio Jurisprudence, 1100, Section 203. This is the general rule. In 23 Ruling Case Law, at page 142, it is said:
"In the state courts, however, the privilege of suing in jurisdictions other than that of their appointment is almost universally conceded to receivers now, as a matter of comity or courtesy, unless such a suit is inimical to the interest of local creditors, or to the interest of those who have acquired rights under a local statute, or unless such a suit is in contravention of the policy of the forum."
The federal rule to the contrary is not followed in the state courts. Ib.
A receiver appointed with authority to collect from stockholders their statutory liability to creditors has sufficient right and title to the chose to maintain an action thereon in any jurisdiction as a matter of right, and not merely as a matter of comity. In the case of Bullock, Receiver, v. Oliver, 155 Ga. 151, 29 A.L.R., 1484, 116 S.E. 293, the Supreme Court of Georgia considered the question of the right of a receiver of a bank appointed by a Florida court to maintain an action to collect the statutory liability of stockholders. The Florida statute is substantially the same as the Michigan statute pleaded in this case. Both statutes expressly provide that the receiver may enforce the liability. The court held that the receiver had the right to sue in Georgia, and as reported at page 1487 of 29 A.L.R. the court said:
"When the statute expressly confers upon the receiver title, the chancery receiver can sue in the courts of the jurisdiction in which he is appointed and also in the courts of foreign jurisdiction. No one questions this doctrine. 23 Ruling Case Law, 141, Section 150. This principle likewise applies where, by necessary implication, a chancery or statutory receiver is vested by statute with title, or is made the representative of creditors; he being considered, under such circumstances, substantially an assignee."
For these reasons the judgment of the trial court is affirmed.
Judgment affirmed.
ROSS, P.J., and HAMILTON, J., concur.