
    Spence v. Insurance Co.
    1. Where a corporation in its petition made no averment of its corporate existence and no objection was made by answer or otherwise until after judgment, the defect was waived.
    
      2. The pendency of an action on a promissory note secured by mortgage, to have the amount,due on the note found, and for a decree for the sale of the property described in the mortgage, but in which no personal judgment was demanded, is not a bar to another action upon the note against the maker for a personal judgment.
    Error to the District Court of Hamilton County.
    The defendant in error, the Union Central Life Insurance Company, commenced an action in the court of common pleas of Clarke county against the plaintiff in error, George Spence and his wife, upon a promissory note secured by a mortgage of lands, in which the relief demanded was a finding of the amount due on the promissory note and a decree for the sale of the property described in the mortgage to pay the' amount due on, the note. There were no averments in the petition of a cause of action on the note for a personal judgment, nor was such judgment prayed for.
    While this action was pending, the insurance company commenced an action in the superior court of Cincinnati against Spence, in which it demanded a personal judgment against him upon the promissory note. The petition in the superior court did not allege the corporate existence of the insurance company, the plaintiff, and no objection to the form or sufficiency of the petition was made until judgment had been given for the plaintiff. The defendant in the superior court answered the pendency of the action in Clarke county.
    •On the case as above stated the superior court gave judgment for the plaintiff; and this judgment was affirmed by the district court.
    
      J. A. Jordan, for plaintiff in error.
    I. That the petition should aver corporate capacity, which it does not. It is not sufficient to recite the fact in the caption to the petition. Devoss v. Gh'ay, 22 Ohio St. R., 159; 1 Nash PL, 347; Bliss on Code PL, 246, 260; 1 West L. M., 155. .
    It is a material averment, and the defect is not waived by failure to raise the question by demurrer or answer. Weidner v. BanJcin, 26 Ohio St. R., 528.
    II. The pendency of a suit in equity to foreclose a mortgage and ascertain the amount due on the debt, when equitable relief only is sought, may be plead in abatement in a subsequent action at law on the debt for judgment.
    ■ The principle upon which I make this claim is that the subsequent suit is unnecessary, vexatious, oppressive. If it be such, then it may be plead in bar of the former action.
    The whole question turns upon the question of necessity. 1 refer the court to Harris v. Johnson, 65 N. C., 478; The Kalorama, 10 Wall., 204; State v. Douglass, 45 Mo., 294 ; Donner v. Garland, 21 Vt., 362; Gamsby v. Bay, 52 N. H., 513; State v. Morris, 10 Tex., 263; People v. Warfield, 20 111., 164; State v. Jones, 10 Iowa, 65; Harmer v. Bell, 7 Moore (P. C. O.), 267; Kittridge v. Baee, 92 W. S. R., 116 ; Williamson v. Paxton, 18 Gratt. (Va.), 475, 504; Gould Plead., 263, Ch. 5, S., 112; People v.-, 27 Mich., 406; 2 Dame Oh., 962.
    
      Bamsey $ Matthews and Edward Barton, for defendants in error.
    1. No principle is better settled than that a judgment in rem from which enough cannot be realized to satisfy the claim of a plaintiff, is no bar to a subsequent action in personam for the balance. Nelson v. Coueh, 15 C. B. (N. S.), 99.
    2. To make a plea in abatement good, the relief sought in the two actions must be the same. “In an action of ejectment, a plea of abatement of the pendency of an action to quiet the title cannot defeat the action, though the same questions are litigated in both.” Bolton v. Landers, 27 Cal., 104. See also, Hall v. Wallace, 25 Ala., 438.
    3. The pendency of a suit at law upon the mortgagedebt is no defense to a suit to foreclose the mortgage unless made so by statute. Suydam v. Bartle, 9 Paige (N. Y.), 294; Williamson v. Ohamplin, 1 Clarke (N. Y.), 9; Tappan v. Evans, 11 N. H., 311: Guest v. Byington, 14 Iowa, 30.
    
      4. An action in rem is essentially different from an action in personam, and one should not suspend the other. Parmer v. Bell, 22 E. L. & Eq., 62; 10 Wall., 204; People v. Judges, 27 Mich., 406; Belahey v. Clement, 8 111., 201; Joslyn v. Millspaugh, 27 Mich., 517; Booth v. Booth, 2 Atkyns, 343 ; 2 Daniels Ch. Pr., 962; Maholm v. Marshall, 29 Ohio St., 616.
   McCauley, J.

The plaintiff in error, after the trial of his case in the court below and without making any defense there that the corporate existence of the defendant in error was not averred in its petition, now insists that the judgment should be reversed for want of this averment.

The averment, while it was necessary, was waived by going to trial without objection, and was supplied by the allegation in the answer that the defendant below contracted with the plaintiff in its corporate name. Smith v. Sewing Machine Co., 26 Ohio St., 562; Rev. Stats., 5064.

At common law three actions could be maintained concurrently upon a debt secured by mortgage, — an action to foreclose, a personal action on the debt and an action in ejectment to recover possession of the mortgaged property. Dunkley v. Van Buren, 3 Johns. Ch., 330; Delahey v. Clement, 3 Ill., 201; Joslyn v. Millspaugh, 27 Mich., 517; 2 Dan. Ch. Pr., 815.

The section of the Code, Revised Statutes, section 5021, which provides that in an action to foreclose a mortgage a personal judgment may be asked for, recognizes the right to unite two of these actions, a right which existed without this provision. In an action for a foreclosure and for a personal judgment, the plaintiff may have both forms of judgment at the same time.

This section of the Code does not require the two remedies to be demanded in the same action — it is only permissive ; separate actions may therefore be maintained, one to foreclose and the other for a personal judgment in the same court at the same time. If they may be maintained in the same court at the same time, and judgment in one action is no defense in the other, then the same consequence follows if the different actions are in different courts. The two actions are essentially different, one exhausts the mortgage security, the other affords a personal remedy; one may be maintained without personal service and the other may not. From this fact alone both actions at the same time in different courts may be necessary to furnish a complete remedy.

It is urged by counsel for plaintiff in error that the second suit was not necessary, and therefore could not be maintained. The reason why a second action cannot be maintained for the same cause at the same time is, that it is not necessary. This, however, is where the object sought in both cases is the same. The actions here were for different purposes and different relief. In a case situated as this one was, the only way in which it could be-shown that the second suit was not necessary, would be to show that the cause of action alleged in the second suit by reason of the proceedings had in the first suit, had been satisfied, or a state of fact equivalent to a satisfaction. The pendency only of another action for the same cause was not enough. In this ease the pendency only of the suit on the mortgage security of the debt was pleaded as a defense.

Judgment affirmed.  