
    Goodman v. Hailes.
    
      Liability of owner of premises — For illegal sale therein of tntoxicating liquors — Judgment against seller conclusive as to facts, ■when — Section 4364, Revised Statutes.
    
    1. In an action under section 4364 of the Revised Statutes, to subject the premises where intoxicating liquors were sold, to the payment of a judgment recovered ag'ainst the seller for damages caused by such sales, that judgment, when not impeached for fraud or collusion, is conclusive as to the facts, (a) that the sales of the liquors which caused the plaintiff’s injury were made by the defendant in the judgment, (b) that the sales were made in violation of law, and (u) that the plaintiff, in consequence of such sales, sustained damages to the amount of the judgment; and they are not open to dispute by the owner of the premises in the action brought against him.
    2. But, allegations that the premises were leased by the owner to the seller for the purpose of selling intoxicating liquors therein or were permitted by him to be used for that purpose, and that the liquors which caused the plaintiff’s injury were sold on the premises, may be put in issue by the owner ; and when that is done, the burden of proof is on the plaintiff.
    3. A denial-that the liquors were unlawfully sold on the premises, tenders an issue only as to the illegal character of the sales, and not as to the fact of the sales, and upon the issue so tendered the judgment against the seller is conclusive.
    (Decided December 13, 1898.)
    Error to the Circuit Court of Hancock county.
    . Emma Hailes having recovered a judgment of five hundred dollars and costs against Henry Umbreeht for damages resulting from the sales of intoxicating liquors to her husband, and having failed to make the judgment and costs on execution issued against Umbrecht, brought her action in the court of common pleas of Hancock county, on the thirty-first day of August, 1895, against Lawrence Goodman, the owner of the premises where it is alleged the liquors were sold to the plaintiff’s husband, to subject the premises to the payment of the judgment. To the petition, which contains all necessary allegations, the defendant filed the following answer:
    “The defendant, for answer to the plaintiff’s amended petition, says: It is not true and he denies that Thomas Hailes, the husband of the plaintiff is and for a long time prior to the commencement of the suit against Henry Umbrecht was an habitual drunkard. And defendant denies that on or about the first day of J uly, and at various other times thereafter and up to the 14th day of October, 1893, said Henry Umbrecht did unlawfully sell intoxicating liquors in said building to said Thomas Hailes, and denies that said Thomas Hailes did thereby become intoxicated; and denies that plaintiff was thereby, by reason of any sales of intoxicating liquors made by said Henry Umbrecht, damaged in her person, property, and means of support in the sum of five hundred dollars, or in any other sum, and denies that defendant had any knowledge of said illegal sales; and denies that said judgment was for damages sustained by this plaintiff by reason of. any unlawful sales of intoxicating liquors to said' Thomas Hailes.
    For a second defense defendant says he was in no way any party to the suit of Emma Hailes against Henry Umbrecht, which is averred in the petition as the basis of this action, nor was the judgment in that ease against this defendant, nor was this defendant in any way, neither by summons nor otherwise notified of the pendency of that action, nor did defendant enter any voluntary appearance therein, nor did he have any knowledge thereof, nor did he make any defense thereto, and such judgment as to this defendant is without any due process of law and of no effect.
    For a third defense the defendant says that the plaintiff by her own wrongful act and negligence caused and contributed to whatever injury she has suffered by reason of drunkenness of her said husband, if any, complained of in her amended petition in this, that the plaintiff herself at and during the times stated in her petition and before and since, did give and furnish to the said Thomas Hailes intoxicating liquors, including lager beer, in large quantities, and did keep large quantities ■of intoxicating liquors in her house where she and said Thomas Hailes lived, to be drank by said .Thomas Hailes at will, and which the said Thomas Hailes did drink at the solicitation and request of plaintiff, and with her consent and connivance, for which said Thomas Hailes paid plaintiff in money in the same way as if such liquors were bought at any other saloon or drinking place, whereby he became frequently intoxicated, and by which plaintiff was solely injured, if injured at all, in her person, property and means of support.
    For a fourth defense defendant says this court has no jurisdiction to declare the said judgment against Henry Umbrechtto be alien against defendant’s said real estate, nor to order any sale of defendant’s real estate to pay the same, nor to sell such real estate to pay said judgment, alias prayed in the petition, because such action would deprive defendant of his property without due process of law, and of his remedy- by due course of law. Therefore defendant prays he may be dismissed hence with his costs.”
    The plaintiff filed a general demurrer to each of the defenses, which was sustained as to all of them except the first one. The cause proceeded to trial upon the petition and first defense contained in the answer, and judgment was recovered by the plaintiff. That judgment was affirmed by the circuit court. The record shows that on the trial the plaintiff put in evidence the record of the proceedings and judgment against Umbrecht, and rested. The defendant offered no evidence. The sustaining of the demurrer, and the want of sufficient evidence to sustain the judgment, were the errors assigned in the circuit court, and relied on here.
    
      Jason Blackford <& Byal, for plaintiff in error.
    The very gist of the right to make a judgment against Umbrecht a lien on the real estate of Goodman, under section 4364, which is the only section under which a lien can be had, without Goodman being a party defendant with Umbrecht in the original suit, lies in the fact that, 1st, The sales of the intoxicating liquors were made by Umbrecht in the premises owned by Goodman; 2d, That Goodman leased the premises to Umbrecht for the purpose of selling intoxicating liquors therein; or, 3d, That Goodman knew that sales of such liquors were being made in his premises and made no objection. All these facts are essential to plaintiff’s right to a lien in this case, and all are traversable, all were traversed and issues joined on them in the pleadings, and not even a scintilla of evidence offered to prove them, as will be seen by the bill of exceptions. Mullen v. Peck, 49 Ohio St., 461.
    
      . Section. 4364 does not say that a judgment rendered for damage done by the sale of intoxicating liquors may be made a lien on the premises of an owner, other than the judgment debtor. The section says “all fines, costs and damages” and “all” judgments against any occupant of the building may be made a lien. It is only by judicial construction alone, if at all, that it is held to apply to liquor judgments rather than to others. Conn. v. Rhodes, 26 Ohio St., 644; 1 Bouvier L. Dict., 765.
    The forms given in Yaples, pages 1184" and 1185, show that in the suit against the lot, after judgment against the saloonkeeper, the plaintiff must allege the sales were on the lot of land, which allegation is not in the first form. B. & O. R. R. Co. v. Wilson, 31 Ohio St., 555.
    The allegation in the petition against Umbrecht that he kept a saloon in the Goodman block and is an immaterial matter in the absence of an allegation that the sale to Hailes was made in such building.
    ■ Section 4364, Revised Statutes was passed long before section 4357. Bellinger v. Griffith et al., 23 Ohio St., 619.
    .The lien of a judgment secured under the “act to provide against the evils,” etc., is limited to the real estate of the judgment debtor.
    Notice that the court expressly declines to determine what effect is to be given to the judgment against a person who was not a party to the suit in ¡which it was rendered. Spies v. Cesil et. al., 33 Ohio St., 236. A personal judgment rendered against one over whom the court has no jurisdiction is wholly invalid. Freeman on Judg., section 334: Third persons may impeach judgments ..because not being parties to the original action, nothing determined by it as* to them res judicata. State v. Freeman, 6 Blackford (Ind.), 248.
    
      F. T. Dunn and George F. Pendleton, for defendant in error.
    We think the recent case of Mullen v. Peck, 49 Ohio St., 459, fixes the liability of Mr. Goodman in this ease beyond peradventure.
    Under section 4364 of the Statutes the lease being for premises to be occupied “for the sale of intoxicating liquors,'” is absolutely void. But in a suit for rents the illegality thereof could not be set up as a defense. Goodall v. The Gerke Brewing Co., 56 Ohio St., 257; Norton v. Blinn, 39 Ohio St., 150; German, etc., Church v. Stegner, 21 Ohio St., 488.
    It frequently happens that contracts not enforceable because of some taint of illegality may not be set up as a defense when it would be dishonest to permit it to be done.
    Such a lease conveys no term, and the possession of the lessee is under the statute the possession of the lessor.
    Formerly the law required illegal sales to be proved in order to avoid the lease. Justice v. Low, 26 Ohio St., 372; Zink v. Grant, 25 Ohio St., 352; Mc Garvey v. Puckett, 27 Ohio St., 669.
    The fact that the pleadings concede that the lease was made of the premises by Goodman to Umbrecht “for the purpose of selling intoxicating liquors therein” made Goodman stand under the statute .section 4364 as sponser for the conduct of Umbrecht, and made the property so occupied for such purpose liable to “be sold to pay all fines, .costs and damages assessed against any person occupying the same.” When the owner of the premises lease these same “for the sale of intoxicating liquors” he thereby pledges the same “for all fines, costs and damages assessed against” the occupant under such lease.
   By the Court:

The action against Umbrecht was prosecuted under section 4357 of the Revised Statutes, which gives a wife who is injured in her means of support in consequence of the intoxication of her husband, a right of action for. damages against the seller of the liquor which caused the intoxication in whole or in part. The action against Goodman was brought under section 4364, which contains the provision that: “If a person rent or lease to another, any building or premises to be used or occupied in whole, or in part, for the sale of intoxicating liquors, or permits the same to be so used or occupied, in whole or in part, such building or premises so leased, used, or occupied shall be held liable for, and may be sold to pay, all fines, costs, and damages assessed against any person occupying the same;” and that section authorizes proceedings to subject the building or premises to the payment of judgments for such damages recovered against the seller. In an action under this last section, the judgment recovered against • the seller of the liquor, when not impeached for fraud or collusion, is conclusive against the owner of the premises upon all questions involved in, and facts essential to its recovery. These are, (1) that the sales of the liquor which caused the plaintiff’s ■ injury were made by the defendant in the judgment; (2) that the sales so made were in violation of law; and (3) that the plaintiff, in consequence of such sales sustained damages to the amount of the judgment; and neither of these facts, nor questions concerning them, are open to dispute by the owner Of the premises in the action brought against him. The place, however, where the liquors were sold, is not material to the recovery of the judgment, nor involved in its recovery. Neither is the nature of the seller’s occupancy of the premises, nor the owner’s agreement with him or permission, for the occupancy. Averments of these facts properly appear for the first time in the action to subject the premises to the payment of the judgment rendered against the seller, and may then be controverted by the owner. Mullen v. Peck, 49 Ohio St., 450, 460, 461. The averments are accordingly contained in the petition against Goodman, and the question here is whether his answer raises a material issue. It is clear the second defense does not; for it was not necessary that he should be a party to the action against Umbrecht. The third defense has no other effect than to call in question the fact that the sales of the liquors which caused the plaintiff’s injury and damage were made by Umbrecht; which, as has been seen, was adjudicated in the case against him, and cannot be questioned in this case. The fourth defense pleads no' fact, but is in the nature of a demurrer to the petition. It is therefore clear that the demurrers to these three defenses were properly sustained.

With respect to the first defense, it will be .observed the defendant does not deny, and therefore admits, the allegation in the petition, that Goodman was the owner of the premises in question, and leased the same to Umbrecht “for the purpose of selling intoxicating liquors therein;” nor does it deny the recovery of the judgment as alleged, against Umbrecht,. The only, other issuable fact in the case was whether the liquors were sold by Umbrecht on the premises. The denial is, that he unlawfully sold the liquors in the building leased to him by Goodman. This does not deny the liquors were in fact sold on the premises, but tenders an issue only as to the illegal character of the sales; and that, we have seen, was involved in, and conclusively settled by the judgment against Umbrecht, as were all the other matters to which the denials in the first defense are directed.

Judgment affirmed.  