
    Poindexter v. Willis.
    [Cite as Poindexter v. Willis (1970), 23 Ohio Misc. 199.]
    
      (No. 132125
    Decided January 16, 1970.)
    Common Pleas Court of Montgomery County.
    
      
      Messrs. Allbery & Roberts, for plaintiff.
    
      Mr. Paul W. Rion and Mr. J. G. TourJcow, for defendant.
   Brenton, J.

The judgment of a sister state’s court may be collaterally attacked if the assertion of jurisdiction over the defendant violated the due process clause of the Fourteenth Amendment of the United States Constitution.

A judgment in personam against one not served with process within a sister state will be given full faith and credit in Ohio where he has had certain minimum contacts with such state and there was provision for and execution of a reasonable method of notification.

Where the jurisdictional fact in the language of the long arm statute is the commission of a tortious act within the state of the forum, such tortious act is not confined to the traditional concepts of a tort, but includes any act committed in the forum involving a breach of duty that imposes liability upon the actor in damages.

Failure of a father to support an illegitimate child in accordance with the laws of the state of Illinois constitutes a tortious act within the meaning of the Long Arm Statute of such state.

I

On motion by plaintiff for summary judgment in accordance with the provisions of division (B) of Section 2311.041, Revised Code, the court may in this cause consider only the pleadings and the supporting affidavit submitted and filed by the plaintiff.

Defendant having failed to respond in accordance with the provisions of division (D) of Section 2311.041, Revised Code, the court then, must, in accordance with the mandate of such division, determine whether summary judgment is appropriate in this cause before rendering such judgment.

This is an action on a judgment of a sister state. Thus, inasmuch as it is not an action on the original claim, it is in the nature of a suit on a specialty. Alropa Corp. v. Kirchwehm, 138 Ohio St. 30.

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The record before the court for consideration in this proceeding consists of the verified petition of the plaintiff with attached verified exemplification of the judgment rendered by the Circuit Court of the state of Illinois, the verified answer of the defendant and the affidavit of one James K. Almeter.

Whether there is a judgment is to be ascertained from the record. The record is conclusive of the facts appearing in it and cannot be questioned in a suit brought on the judgment in Ohio.

The defendant has not by affidavits or as otherwise provided by Section 2311.041, Bevised Code, set forth specific facts showing that there is a genuine issue for trial.

The court finds from the record that there is a judgment, rendered on March 26, 1968, by a court of general jurisdiction of a sister state for the plaintiff and against the defendant in the sum of $3,260 plus costs of suit. Further that the uncontested affidavit factually shows that James K. Almeter is an Illinois attorney who represented the plaintiff in the Illinois litigation wherein the judgment was rendered and in the appeal wherein the judgment was affirmed by the decision of the Illinois Appellate Division reported in 87 Ill. App. 2d 213, 231 N. E. 2d 1.

The only question remaining is whether plaintiff is entitled to judgment as a matter of law.

Ill

Before being entitled to recognition in an Ohio court the sister state judgment must have been based upon good jurisdiction over the subject matter and the parties, it must have adjudicated the merits of the cause of action, it must not have been subject to collateral attach in Illinois and the original cause of action must be so merged into that judgment that no suit may be brought on the original claim. However, when the foreign court appears on the record to be a court of general jurisdiction, the jurisdiction over the parties and the cause is presumed unless disproved by the extrinsic evidence or by the record itself. Ades v. Ades, 70 Ohio App. 487; Williams v. North Carolina, 325 U. S. 226.

No extrinsic evidence has been offered nor has the defendant indicated in any manner that there is such evidence. In consequence thereof, then, may defendant look to the record for any aid and comfort?

Defendant’s answer affirmatively challenges the jurisdiction of the Illinois court over his person. And being realistic this is the only issue in the case. The pleadings and the affidavit clearly raise the applicability of the Illinois internal law and the Illinois cases interpreting such law. Litsinger Sign Co. v. American Sign Co., 11 Ohio St. 2d 1.

IV

Before the court and on the record is Illinois Revised Statutes, Chapter 110, Section 17 (1) (b) and Section 16, the decision in the case of Poindexter v. Willis, 87 Ill. App. 2d 213, and the Illinois Paternity Act, Chapter 106%, Section 51-66.

The facts as found by the Illinois Court of Appeals from the record before it on the appeal show that the parties met at the University of Illinois, Champaign, Illinois; that while there and during the course of their relationship at the university, the parties participated in several acts of intercourse; that plaintiff became pregnant as a result thereof, and thereafter returned to her home in Alton, Illinois, where the baby was born. Thereafter Helen P. Poindexter, the plaintiff, brought suit in the Circuit Court for the Third Judicial Circuit, Madison County, Illinois, under the Illinois Paternity Act wherein she alleged that she was the mother and Norman Willis, the defendant, the father of a child born out of wedlock on July 22, 1964, as a result of her being seduced by the defendant on several occasions. In that action she alleged further that although Willis was a resident of the state of Ohio, he had subjected himself to the jurisdiction of the courts of Illinois by committing tortious acts within the meaning of Blinois Revised Statutes, Chapter 110, Section 17 (1) (b) and was, therefore, subject to personal service outside the state of Illinois pursuant to Hlinois Revised Statutes, Chapter 110, Section 16.

Personal service was made on Willis in Ohio. He filed a motion to the action in Illinois challenging that trial court’s jurisdiction over his person. The motion was denied, whereupon in that action Willis filed an answer denying the allegations of the complaint and renewing his objection to the trial court’s jurisdiction over his person. Willis did not appear at the trial. At the trial Helen Poindexter testified as to the several acts of intercourse, her pregnancy, and the birth of the baby, and that when she became pregnant she wrote to the defendant but he offered no help.

On the appeal, Willis did not question the validity of Chapter 110, Sections 16 and 17 of the Illinois Civil Practice Act but argued only that a proper construction of said act precludes a valid service of process on him in Ohio on the ground that the violation of a duty under the Paternity Act would constitute a tortious act committed in the state of Illinois within the meaning of Section 17 (1) (b).

The Illinois Paternity Act as interpreted by the Uli-nois Court of Appeals in Poindexter v. Willis, supra, places the duty on the father of a child born out of wedlock whose paternity is established under the act to support the child. He is also liable for the reasonable expense of the mother during her pregnancy, confinement and recovery, when liability is established in the paternity proceeding. The suit must be filed by the mother of the child born out of wedlock or a mother who is pregnant with child.

Under Section 17 (1) (b) a nonresident who either in person or through an agent commits a tortious act within the state of Illinois submits to jurisdiction. The question, then, in that case was whether or not a tortious act was committed in Ulinois within the meaning of the statute.

In the appeal in Illinois, Willis argued that the statutory action for paternity in Illinois did not contemplate nor was it based upon the commission of a tortious act; that the sexual intercourse alleged and testified to was consented to by both parties and in such case neither had committed a tort against the other.

The Illinois court held that the word “tortious” as used in Section 17 (1) (b) of the act in question was not restricted to the technical definition of a tort, but includes any act committed in the state of Illinois which involves a breach of duty to another and makes the one committing the act liable to respondent in damages. That court held that the failure of the father to support an illegitimate child constitutes a tortious act within the meaning of the Statute, Chapter 110, Sections 16 and 17 of the Illinois Civil Practice Act, and subjected him to the jurisdiction of the Illinois court.

V

It is the right of the Illinois courts to enter judgment in personam against a nonresident defendant under the provisions of the Long Arm Statute that Willis complains. He asserts that the effect of the application thereof under the facts and circumstances of his case has violated his constitutional right to due process of law.

The decision of the Supreme Court of the United States which in the first instance sustained the validity of such judgments and enunciated a due process test is International Shoe Co. v. Washington, 326 U. S. 310. In that case the Supreme Court said:

“Historically the jurisdiction of courts to render judgment in personam is grounded on their de facto power over the defendant’s person. Hence his presence within the territorial jurisdiction of a court was prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 U. S. 714, 733. But now that the capias ad re-spondendum has given way to personal service of summons or other form of notice due process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.”

Service has been upheld under Long Arm Statutes which predicate jurisdiction on the commission within the state of a “tort” or a “tortious act.” Deveny v. Rheem Manufacturing Co., 319 F. 2d 124, Smyth v. Twin State Improvement Co., 116 Vt. 569, Johns v. Bay State Abra sive Products Co., 89 F. Supp. 654, Star v. Rogalny (E. D. Ill. 1957), 162 F. Supp. 181.

Where a product has been manufactured or produced outside the forum state and after shipment into the state it causes damage to the plaintiff, courts have held that jurisdiction over the nonresident manufacturer or producer may be obtained under the forum state’s Long Arm Statute. Chovan v. E. I. DuPont DeNemours & Co., 217 F. Supp. 808, Gray v. American Radiator & Standard Sanitary Corp., 176 N. E. 2d 761, Hutchinson v. Boyd & Sons Sales, Inc., 188 F. Supp. 876.

Where negotiation and entry of contract was sole contact of defendant with state, validity of service on a nonresident has been upheld. Compania de Astral, S. A. v. Boston Metals Co., 205 Md. 237, 107 A. 2d 357, certiorari denied 348 U. S. 943. Also see Dahlberg Co. v. Western Hearing Aid Center, Ltd., 259 Minn. 330, 107 N. W. 2d 381.

This court finds that while many of these Long Arm Statutes are not alike in wording, generally all are alike in principle and this is true of Ohio’s Long Arm Statute, Sections 2307.381, 2307.382, and 2307.383, Revised Code. In most of the reported decisions the original defendant was a corporation but the rules are applicable to all persons as defined in the Long Arm Statute. The validity of the service under such statutes depends on the satisfaction of two requirements. First, the act upon which service is predicated must be one which the state statute contemplates as a basis for such service. Second, the nonresident defendant must have such minimum contacts with the state that in personam service made upon him outside the state does not violate due process. Taylor v. Portland Paramount Corp. (C. A. 9th 1967), 383 F. 2d 634, Calagaz v. Calhoon (C. A. 5th 1962), 309 F. 2d 248.

The Supreme Court of Illinois has met the problem head on. In Nelson v. Miller, 11 Ill. 2d 378, 143 N. E. 2d 673, the court said:

“The foundations of jurisdiction include the interest that a state has in providing redress in its own courts against persons who inflict injuries upon, or otherwise incur obligations to, those within the ambit of the state’s legitimate protective policy. The limits on the exercise of jurisdiction are not ‘mechanical or quantitative.’ ”

The court also said that the word “tortious” can be used to describe conduct that subjects the actor to tort liability but that it does not follow, however, that the word must have that meaning in a statute that is concerned with jurisdictional limits. Moreover, the same court in Gray v. American Radiator & Standard Sanitary Corp., supra, in discussing the Long Arm Statute said:

“In determining legislative intention, courts will read words in their ordinary and popularly understood sense. We think the intent should be determined less from technicalities of definition than from consideration of general purpose and effect.”

The Court of Appeals in Poindexter v. Willis, supra, said that in accordance with the views expressed by the Illinois Supreme Court it would interpret the Long Arm Statute as reflecting a conscious purpose by the Legislature to assert jurisdiction over nonresidents to the extent permitted by the due process clause and therefore that court held that the word “tortious” as used in the Long Arm Statute is not restricted to the technical definition of a tort.

VI

The word “tort” is French and taken from the Latin torquere and means to twist, twisted, wrested aside. It is a private or civil wrong or injury. It is a wrong independent of the contract. A tort is the breach of a legal duty. The law recognizes certain rights as belonging to every individual and in like manner the law recognizes certain corresponding duties as attached to every individual, such as the duty of not deceiving by false representations, of not prosecuting another maliciously, as not using your own property so as to injure another, the duty of a father to support his illegitimate child, and so forth. The breach of any of these duties coupled with consequent damages to anyone is a tort. The omission or failure to perform any act specifically imposed by law is generally equivalent to an act done with intent to cause wrongful injury.

In general it may be said that whenever the law creates a right, the violation of snch right will be a tort and whenever the law creates a duty, the breach of such duty coupled with consequent damage will be a tort also. This applies not only to the common law but also such rights and duties as may be created by statute.

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A general definition of due process of law which would cover every case would be most desirable. Nevertheless, apart from the risk of failure to make the definition perspicuous and comprehensive, there is a wisdom in ascertaining the extent and application of the phrase by the judicial process of exclusion and inclusion as the cases arise.

Mankind has settled upon the proposition that it was intended to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice.

Due process of law undoubtedly means, in the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights; but not necessarily judicial proceedings; it may include summary proceedings if not arbitrary or unequal.

Due process of law in the Fourteenth Amendment refers to that law of the land in each state which derives its authority from the inherent and reserved powers of the state exerted within the limits of those fundamental principles of liberty and justice which lie at the basis of all our civil and political institutions. It implies conformity with the natural and inherent principles of justice and requires that no one shall be condemned in person or property without opportunity to be heard. Holden v. Hardly, 169 U. S. 366. The proceedings must be appropriate to the case and just to the parties affected, and pursued in the ordinary manner and adapted to the end to be attained, with opportunity to be heard, when necessary, for the just protection of rights. Turpin v. Lemon, 187 U. S. 51.

The state of Illinois is endowed with the power to legislate, execute and adjudicate the laws relating to paternity. In doing so its motive, reason, purpose, grounds and arguments for subjecting a nonresident thereto must meet the constitutional proscription of due process of law and equal protection of the law.

Equal protection of the law means the protection of equal laws. The prohibition against the denial of equal protection of the laws requires that the law shall have an equality of operation on persons according to their relation. So long as the laws are applicable to all persons under like circumstances and do not subject individuals to an arbitrary exercise of power and operate alike upon all persons similarly situated, it suffices the constitutional prohibition against the denial of equal protection of the laws. Senior v. Batterman, 44 Ohio St. 661, Xenia v. Schmidt, 101 Ohio St. 437.

The effect of the prohibition is the prevention from depravation of equal and impartial justice under the law. In law, equality means in possessing the same rights and being liable to the same duties. The word equal implies not identity but duality; the use of one thing as the measure of another,

vm

This court concludes that it is clear upon the record that defendant had minimum contacts with the state of Illinois. For the purposes of this decision, the facts unequivocally show that the defendant, by becoming the father of the illegitimate child born to the plaintiff brought into play the effect of the Illinois law. That law imposed upon him a duty to support his illegitimate child. This required performance in Illinois, that is, some measure of monetary support. His failure to do so was a breach of duty imposed by Illinois law and such failure obviously occurred in Illinois. The child could be supported nowhere else, since it was a citizen and resident of Illinois.

Illinois, in the execution and adjudication of its laws appertaining to the case made against Willis, gave him ample opportunity to appear to be heard and to defend himself. Moreover, Willis was served with the notice of the pending litigation against him personally at his residence in Ohio. It does not matter that he did not choose to litigate the merits of the paternity suit. He was given ample opportunity to do so. Furthermore it can reasonably be argued that the state of Illinois had a significant interest in this litigation because this child and the mother are residents of the state. Certainly it has an interest in the welfare of the child. The burden could fall upon the state.

Finally, it is the holding of this court that the state of Illinois complied with the prerequisites of due process of law and did validly and lawfully acquire in personam jurisdiction over the defendant Willis and, therefore, the judgment rendered against him in the state of Illinois is a valid and subsisting judgment.

The interpretation by the Illinois courts of its Long Arm Statute and the application thereof does not offend the public policy of the state of Ohio. This is so because Ohio has enacted a Long Arm Statute similar to that of Illinois. Section 2307.382, Revised Code, and the annotated cases thereunder. See, also, Jackson v. Keske,, 20 Ohio St. 2d 89. Also, unquestionably, Ohio requires the father to support his illegitimate child.

In accordance with all the foregoing, this court hereby recognizes the judgment rendered by the Illinois court and in accordance with Article IV, Section 1 of the United States Constitution grants full faith and credit to such judgment.

Furthermore the court holds that summary judgment is appropriate in this action and that plaintiff is entitled to judgment on her cause of action herein as a matter of law.

Judgment for plaintiff.  