
    Himmelein v. United Grape Products, Inc.
    (Decided February 20, 1933.)
    
      Mr. Bay F. Speers, Messrs. Murray <& Murray, and Messrs. Young & Young, for plaintiff in error.
    
      Messrs. King, Flynn & Frohman, for defendant in error.
   Williams, J.

The plaintiff, Fred T. Himmelein, brought an action in the court of common pleas of this county against the defendant, United Grape Products, Inc., for $40,000, claiming approximately $15,000 to be due him on an accounting and $25,000 by way of damages for breach of contract. The action was instituted in the court below on February 14, 1930, and on February 17, 1930, service of summons was made upon the defendant company. In September, 1931, receivers were appointed for the defendant by the United States District Court, Western District of New York, sitting at Buffalo. Fred T. Himmelein never was made a party to that action, but on December 31, 1931, filed his so-called sworn proof of claim with the receivers at Buffalo, which was in the following language :

“Fred T. Himmelein of lawful age being first duly sworn on oath says that he is a creditor of United Grape Products, Incorporated, having claims against said corporation; that he has commenced an action against United Grape Products in the court of common pleas of Erie County, Ohio, being action No. 18256 therein, which said action is now pending in said court, in which said action said receivers have entered their appearance and the amount of the claim asserted by him therein being forty thousand ($40,000.00) dollars which claim he asserts is a valid claim against United Grape Products, Inc.; that he has no security of any kind or description whatsoever therefor but that he claims a lien upon the real estate of United Grape Products, Inc., situated in the City of Sandusky, Erie County, Ohio; that in addition to said claim he has a claim for an accounting for sales profits from said corporation; that he holds no security for such claim, as all his books and claims therefor are in the possession of the corporation or its receivers; that this affiant makes this proof of claim reserving to himself full right to continue the litigation above referred to. All of which is true and further affiant sayeth not.

“Fred T. Himmelein.”

The receivers refused to allow the claim, and the United States District Court appointed a master to hear the evidence. On hearing before the master the receivers offered evidence, but the plaintiff although he had due notice of the hearing did not appear. The master disallowed the claim and made his report thereof to the federal court May 10, 1932, and that court on June 10, 1932, confirmed the report of the master and entered judgment thereon. On December 5, 1931, the receivers filed an answer and cross-petition in the court of common pleas in the action brought by plaintiff and entered their appearance. On September 26, 1932, the receivers filed a supplemental answer in which they pleaded res judicata, setting out the rejection and disallowance of the claim of the plaintiff, Himmelein, in the federal court. When plaintiff filed his petition in the court of common pleas an attachment was issued and a levy made upon certain real estate, but on February 26, 1931, the attachment was discharged and the property released therefrom. The case came on for trial on September 13,1932, and, after an opening statement had been made by counsel for plaintiff, the defendants moved for a directed verdict at the completion of the opening statement made by plaintiff’s counsel. This motion was overruled and exceptions taken. Thereupon, without objection by plaintiff, the defendants offered evidence of the proceeding in the United States District Court at Buffalo. The facts were shown to be substantially as recited above and were not questioned by counsel for plaintiff. The court below held that the facts were sufficient to make out the defense of res judicata, and dismissed plaintiff’s action. The plaintiff makes the claim in this court that this action of the trial judge constituted prejudicial error.

Interesting discussions of the nature of actions in rem and those in personam, as bearing upon the question of res judicata, may be found in the following cases: Kline v. Burke Construction Co., 260 U. S., 226, 43 S. Ct., 79, 67 L. Ed., 226, 24 A. L. R., 1077; Chicago, Rock Island & Pac. Ry. Co. v. Schendel, Admr., 270 U. S., 611, 615, 616, 46 S. Ct., 420, 70 L. Ed., 757, 53 A. L. R., 1265; Grubb v. Public Utilities Commission of Ohio, 281 U. S., 470, 476, 50 S. Ct., 374, 74 L. Ed., 972.

The precise question involved in this case is not, however, covered by them, nor have we been able to find any authority that is absolutely decisive of the instant case, even after looking up the citations in the briefs and carrying-on an independent investigation. Constructive thinking is not wholly common in judicial opinions for the reason that index learning has brought into convenient use thousands of precedents, and the first impulse in legal investigation is “to find a case;’’ and, where there is a precedent, courts are only too prone to follow it, though the road traveled may not be the best way. Cowper put the thought in cold type:

“To follow foolish precedents, and wink

With both onr eyes, is easier than to think. ’ ’

Though a case or two may be found pointing in a direction other than that taken, we are constrained to decide this case purely upon principle. No doubt this course will be refreshing to the many members of the profession who believe the courts are too often slaves to precedent. What is said in this connection should not be construed as implying that due respect should not be given to binding precedent: In Ohio, certainly, the question is an open one, and we shall follow the dictates of good judgment and common sense in an endeavor to reach a logical conclusion.

The proceeding in the federal court in New York was an action in rem so far as the right of general creditors to share in the fund in the hands of the receivers was concerned, and creditors were notified to file proof of their claims or be barred from sharing in the fund or res. The action in the court below was originally a proceeding in rem, so far as the attachment was involved, but the attachment was discharged before the report of the referee and the confirmation of it by the federal court. After the discharge of the attachment the case below proceeded as one in personam. It should be borne in mind that the federal court could not render a personal judgment as between one who merely had a claim and the receivers. It must be borne in mind, too, that, while the plaintiff Himmelein filed in the federal court what he called a proof of claim, it was in fact merely a statement that he was a creditor of the United Grape Products, Inc., and that he had begun the action in the court below, with some particulars as to the nature of the action, and asserted that he reserved the right to continue the litigation in the court of common pleas. No request was made that the claim be allowed in the federal court as a claim, nor was there a request that there should be any sharing by the plaintiff Himmelein in the res until a judgment was obtained. The referee, however, proceeded to treat it as an ordinary proof of claim and disallow it.. In doing so, the referee passed upon a matter not presented by the filing of the claim. The so-called proof of claim amounted only to notice of the pendency of the action in the court of common pleas and a reservation to continue the litigation involved therein, and the federal court could not, by assuming it to be a regular proof of claim by which the creditor sought to share in the res, deprive the plaintiff of his right to pursue his remedy in the court below.

Whether a judgment obtained by the plaintiff in the court below, if that eventuality should come to pass, could properly be presented to the federal court in New York, and whether the judgment should then be allowed to share in the fund in the hands of the receivers would be a question for the determination of that court.

The defendant claims, moreover, that the judgment below was in accordance with law for the reason that counsel for plaintiff in their opening statement did not set forth facts which would entitle the plaintiff to recover. The statement is complete and very lengthy, and this court is not prepared to say that, assuming the statements of counsel to be true, plaintiff was not entitled to recover.

For error of the court below in holding that the evidence was sufficient to make out the defense of res judicata and dismissing plaintiff’s petition, the judgment will be reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

Richards and Lloyd, JJ., concur.  