
    Common Pleas Court for Montgomery County.
    Edelstein v. Dayton Rubber Manufacturing Co.
    Decided May 9, 1930.
    
      James J. Lovano and N. D. Davis, for plaintiff.
    
      Burkhart, Heald & Pickrel, for defendants.
   Snediker, J.

This case is before the court on a motion to strike from the files the petition for the vacation of a judgment, for the reason that the action had been finally determined. This action was commenced in this court by the filing of a petition on two cognovit promissory notes, each made by Joe Edelstein as Auto Tire Sales Company to the Dayton Rubber Manufacturing Company, both in the sum of $2,500 with interest. Upon these payments had been made, and the prayer of the plaintiff’s petition was for the recovery of $2,465.59 with interest. Counsel appeared in this court on behalf of the maker on July 3, 1928 and confessed judgment, and judgment was rendered accordingly. Afterwards, on September 14, 1928, a motion was made by the defendant, Edelstein, to vacate that judgment. This motion was upon several grounds: first, that there was irregularity in the proceedings in obtaining the judgment, in that it was taken against Joe Edelstein when in fact the notes were signed “J. Edelstein;” also in that the notes were executed to the Dayton Rubber Manufacturing Company of Delaware, and the judgment was taken in the name of the Dayton Rubber Manufacturing Company of Ohio; also because there is no due date in the notes, and because these notes were not attached to the petition. The second ground of his motion was that the judgment was taken for more than was due the plaintiff; the third ground that the defendant had a good and valid defense, specifying of what it consisted. Taking cognizance of our term times, this motion was filed within the term at which the judgment was rendered. Subsequent to its filing, on January 5, 1929, after hearing evidence thereon the court made' and there was filed an entry overruling the defendant’s motion to vacate the judgment. To this ruling, of course, exceptions were taken. A bill of exceptions was prepared and filed in this court on March 15, 1929, which was signed and returned to the Clerk on April 2, 1929. On January 16, 1929 a petition in error was filed in the Court of Appeals. Such proceedings were had in that court that the petition in error came on for hearing on November 22, 1929, when a motion was filed by counsel for defendant in error, the Dayton Rubber Manufacturing Company, objecting to the jurisdiction of the court and asking that the court strike the petition in error from the files and that the case be dismissed for the reason that proceedings in error were not completed within the time required by law. This motion was argued and presented, and as appears from the decision of the Court of Appeals on file in this case, they found:

“Defendant in error seeks to strike the petition in error from the files and to dismiss the proceedings. It claimed that the bill of exceptions was not filed within 40 days as provided by Section 11564, General Code.
“The motion is not to strike the bill of exceptions from the files but the petition in error. We think the bill of exceptions should be stricken from the files because it was not filed within the time prescribed by law and the court is therefore without jurisdiction to consider the same.- The court will therefore, upon its own motion, order the same stricken from the files.
“We have considered all of the errors suggested by counsel for plaintiff in error in their petition in error which are subject to review without a bill of exceptions, and upon such consideration are of opinion that there is no error in the record prejudicial to plaintiff in error.
“The judgment of the lower court will therefore be affirmed.”

We find among the papers in this case an entry on this opinion, signed by counsel for plaintiff in error and for the defendant in error, but not signed by the Court of Appeals. So far as we can discover, the case is still in the Court of Appeals. Notwithstanding that, however, a mandate was issued pursuant to the last clause of the unsigned entry,' ordering that the judgment of the Common Pleas Court be carried into effect. This mandate was filed in the Court of Appeals on March 20, 1930, and after that, on April 26, 1930, the petition for vacation of the judgment and for the restraining order to which this motion which is before us was directed, was filed in this court.

The contention of counsel appearing for the motion is that when the previous motion to vacate the judgment was filed by Edelstein, was heard at length on evidence by Judge Patterson and was overruled, there was an adjudication of Edelstein’s rights on the questions raised by that motion, which constituted a final order, and that therefore he is not now entitled to be heard by this court on his petition filed for the purpose of vacating the judgment, to which the motion was directed, and that because thereof that pleading should be stricken from the files. Of course if it is true that there was a final adjudication of the rights of these parties in. the respects claimed at that time, the case is ended and all filings, except such as the law provides may be made in order to have the record speak the truth, have no place therein.

The question raised by this motion is important, but so far as we can discover, has never been passed upon in this state. The motion which was filed to vacate the judgment being within term called for the exercise of a power which the court has of control of its judgments during that time. Evidence offered under that motion was directed to the issue which the facts stated in the motion made with the claim of the plaintiff in its petition that there was due and owing to it from the defendant, Edelstein, the amount for which it prayed, and when the court made its decision on that evidence it was upon that controversy. That the finding of the court was regarded as a final order under the definition found in Section 12258, General Code, is indicated by the proceedings which were instituted in the Court of Appeals and by the opinion and mandate of that court. If it was a final order, then as such it determined the rights of the parties for all time, and this petition as we have said has no place in this record.

In Volume 2 of his work on Judgments, Freeman, in discussing proceedings such as we are here considering, says at Section 666:

“The question whether an issue has or has not become res judicata because litigated and determined in a summary proceeding is one upon which, in view of the more recent decisions, it must be very difficult to decide. The tendency of these decisions is to disregard the form or time of an adjudication, and to inquire whether the question really arose and was or might have been contested on the merits, and was necessarily decided by the court. If so it will generally be regarded as conclusively and finally settled, though such decision disposed of a motion, rather than of an independent action or proceeding, and especially if the action of the court was subject to review by some appropriate appellate proceeding.”

And at Section 668, he says:

“The tendency of the recent adjudications is to inquire whether an issue or question has been in fact presented for decision and necessarily decided, and if so, to treat it as res judicata, though the decision is the determination of a motion or summary proceeding, and not of an independent action. This is especially true when the decision did not involve a mere question of proper form or time of proceeding, but was the determination of a substantial matter of right upon which the parties interested had a right to be heard upon issues of law or fact, or both, and these issues, or some of them, were necessarily decided by the court as the basis of the order which it finally entered granting or denying the relief sought.”

As bearing upon the principles thus enunciated by Freeman, we quote from some of the cases which we have consulted. In the case of Reuben Fosdick, Conservator, et al V. G. A. Forbes, Ills. App. Rep., Vol. 120, p. 226, the second syllabus reads:

“Res judicata — The denial of a motion to open up a judgment by confession and for leave to plead to the merits is res judicata in a proceeding in aid of execution based upon such judgment, as to the questions of breach of warranty and failure of consideration made the basis of such motion.”

In the case of Burner V. Hevener, 34 W. Va., p. 774, the second syllabus reads:

“If the matter in question has been fully tried upon an issue made up on a rule or motion, and the judgment of the court is so far final that an appeal would lie, then, so long as such judgment remains unreversed on review, rehearing, appeal or otherwise, no new suit can be prosecuted between the same parties to reopen the same question.”

In the case of Sunkler, Appellant, v. McKenzie, Respondent, 127 Calif., p. 554, the second syllabus reads:

“The final determination of a substantial matter of right upon a motion or petition upon which the interested parties have a right to be heard, is res judicata where the same subject matter is sought to be litigated in an independent action.”

In the body of the opinion the court say:

“It is familiar law, as well as manifest justice, that a man should not be vexed twice with the same litigation. This, rule is not without its exceptions. But when, as here, a question has once been fully litigated and every opportunity given to either party to present his case and to have any supposed errors in the lower court corrected by review in the highest court, it would be an abuse of the rights of a litigant to compel him to enter into a second trial of the same question.”

In the case of Spencer et al v. Watkins et al, 169 Federal Reportar, p. 379, the Circuit Court of Appeals of the United States, (Judge Van Devanter, now of the Supreme Court of the United States being one of those sitting) held:

“To render a judgment conclusive as an estoppel between parties to a suit, it is not always essential that there shall have been a formal joinder of issue between such parties; nor does it matter that the question decided was purely one of law, and the decision rendered on motion or demurrer, provided the merits were involved and decided, and the decision was final.”

In deciding the case, the court used this language:

“The question involved was not a mere collateral one arising during the progress of a cause, but was of the ultimate and substantial rights of the parties. The order of the district court was not in an inconclusive summary proceeding. It went to the very foundation of their claims and was in terms decisive of the merits after a full hearing. It was a final and appealable order and was aifirmed upon like hearing by the highest tribunal of the state. The matter directly in issue now, as then, is the validity of Mrs. Wilder’s residuary bequest. The grounds of attack upon it are the same with no new feature of fact or law, and there is also an exact identity of the parties in interest. There would therefore seem to exist all the elements of an estoppel by judgment. It is not material that the Wilder Charity did not expressly join in the motion to strike the complaint in intervention from the files. The heirs made it a party to the intervention by general designation and also by name made it a party to the appeal to the supreme court. A formal joinder of issue is not always essential (163 Fed., 801), neither does it matter that the question decided in the prior case was purely one of law (180 U. S., 471), nor that the decision was upon a motion or demurrer (30 Kas., 234; 67 Minn., 454; 27 Fed., 277), provided the merits were involved and were decided, and the order or decision of the court was final.”

It is a familiar rule, recognized by the Supreme Court of Ohio in the case found in 82 O. S. Rep., at p. 121, that:

“When a matter has been finally determined in an action between the same parties by a competent tribunal, the judgment is conclusive, not only as to what was determined, but also as to every other question which might properly have been litigated in the case.”

Van Fleet in. Volume 1 of his work on Former Adjudication, page 96, states:

“If a ruling on a motion is a final determination on the merits, no reason occurs to me why it is not res judicata. * * * Thus the two cases just cited from Pennsylvania hold, that if a defendant, after judgment, obtains a rule to show cause why execution should not be stayed, a discharge of the rule on the merits bars a suit for the same purpose although no appeal lay from the first ruling. The cases all agree that if an appeal can be taken from such a ruling, it is conclusive and bars a new motion or suit. Two cases which seem to me to be sound hold that a decision upon the merits of any matter on a motion is a bar. A vice-chancellor of New Jersey decides in a late case that if a person applies to a common-law court, for leave to set off one judgment against another, a denial of the motion upon the merits is res judicata although no writ of error can be had. * * * The Supreme Court of North Carolina says ‘The principle of res judicata does not extend to ordinary motions incidental to the progress of a cause, for what may one day be refused may the next day be granted; but it does apply to decisions affecting a substantial right subject to review in an appellate court.”

The Supreme Court of North Carolina had before it the case of Mabry v. Henry et al., Vol. 83, p. 298, in which a like question was presented. They said:

“The law does not tolerate successive actions or proceedings merely upon newly assigned reasons, when one and the same object is aimed at in all, but the decision first rendered will govern as res adjudicada. Upon this principle where a motion has been refused to set aside a judgment on the allegation that it was obtained against the course of the court and that the defendant had a good and valid defense to the action in law, equity and morals, a subsequent motion will not be entertained to set such judgment aside distinctively put upon the ground of a fraudulent advantage taken in entering up the same and upon evidence more full and minute, but in substance the same as that produced upon the first hearing.”

We recognize, of course, that the status of this judgment affirmed by the Court of Appeals is the same-, so far as an attack from the equity side of the court is concerned, as it was before error was prosecuted, but this is not such an attack. Edelstein avails himself of the provisions of the Code found at Sections 11631 and 11635, which make it possible under proper conditions to vacate or modify a judgment or order after term.

In considering the question we are deciding, we have examined the decisions presented by counsel representing the petition to vacate, but feel constrained to follow the authorities which we have quoted.

The motion is sustained.  