
    PLEADING — VARIANCE—-JUDGMENT—INTEREST.
    [Lucas Circuit Court,
    June 29, 1899.]
    ICiug, Haynes and Parker, JJ.
    Frank E. Brady v. William H. Palmer.
    1. Application op Common Taw Rules as to Variance Between Allegations and Proof, upon a Plea of Nul Tiel Record.
    In an action based on a judgment recovered against defendant in the circuit court of Grant county, Indiana, it was held that the common law rules as to variance between allegations and proof, upon a plea of nul tiel recordÍ, are not in their strictness applicable under sec 5294 and 5295, Rev. Stat.; and an allegation that the judgment was recovered on a cross-petition is supported by evidence of a transcript of a record of the Indiana case, showing an original and not a cross-petition, and that this judgment was recovered in an action with which this original suit was consolidated.
    2. Consolidation of Actions, Effect on Original Actions.
    Where an original action is consolidated with others, the petition in the original action becomes in substance a cross-petition.
    3. Circumstances under which Allegations as to Personal Service of Summons Become Immaterial and cannot be Urged as Matter of ■ Variance.
    Where it is alleged and sustained by the proof that the parties appeared and judgment was entered by agreement, an allegation that the court acquired jurisdiction by personal service of summons is immaterial and cannot be urged as matter of variance.'
    4. Question of variance Between Proof and Allegations of a Certain Agreement.
    Proof that a certain agreement was executed by B and C, and the allegation being “an agreement executed by the said B,” does not constitute a variance.
    5. Proof of more Parties to Suit than are Alleged in Petition, Effect.
    Proof that there were more parties to the suit than are alleged and set forth in the petition, does not constitute a variance.
    6. Failure of Transcript of the Record to Contain all the Pleadings.
    It is not necessary that the complete and final records of the former case appear in the transcript. It is sufficient if it shows the agreement to enter judgment, and that judgment was entered in. acccordance with such agreement.
    
      7. Identity of Actual Record with the Record Pleaded.
    Where sufficient appears in the transcript to identify the actual record with the record sued on in the petition, it is immaterial that there is a variance in the-titles given in the transcript and in the petition.
    8. Averment by a Corporation op its -Corporate Existence.
    A corporation, either domestic or foreign, suing in the courts of this state is not required to aver in issuable form that it is such a corporation, and it is not required to set out in the petition the terms of its charter showing its capacity to maintain the action.
    9. Want op Capacity op a Corporation to Sue can only be Questioned Upon a Plea in Abatement.
    If it is desired to take advantage of a want of capacity to sue in the plaintiff* whether a corporation or a natural person, that must be done by a special plea in the nature of a plea in abatement.
    10. What Party must do in Order to take Advantage op Statute Regulating Foreign Corporations.
    In order that a party may take advantage of the statute regulating foreign corporations, he must set forth specifically wherein the foreign corporation has failed to comply with the laws so that it cannot prosecute its action in an Ohio court.
    |11. Variance as to Amount of Judgment as Alleged in Petition and as is Shown by the Transcript.
    Where the petition alleges that judgment was recovered fora certain sum in the Indiana court, objection cannot be taken because the transcript of the record of such suit shows that judgment for a less sum was taken, with an additional sum adjudged for attorneys’ fees, when the agreement authorized a judgment for such fees.
    12. Question as to Whether Interest should be Computed upon a Judgment Rendered in an Indiana Court.
    It was claimed that the judgments as rendered are excessive in large amounts* in that they include certain interest. There being no allegations in any of the petitions pleading any statute as to interest, or that a judgment bears interest in the state of Indiana, it was held, that under these circumstances, such interest should be disallowed, and the judgment should be modified to that extent.
    13. Methods by which the Statutes op Other States may be Proved.
    Notwithstanding the provisions of sec. 5244, Rev. Stat. of Ohio, which provides the method by which the statutes of other states may be proved in this state, such statutes may also be proved by oral testimony of persons learned in the law who testify as experts with respect thereto.
    Hrror to the Court of Common Pleas of laucas county.
   Parker, J. (orally.)

The above entitled case and three others, viz.: Frank P. Brady v. Union Supply and Hardware Co., Id. v. National Supply Co. and Id. v. William Silvers, come -into this court on error and are very much alike. They were all actions brought by the defendants in error, respectively, against Brady, in the court of common pleas of this county, to recover judgments upon alleged judgments theretofore obtained against him in the circuit court of Grant county, Indiana. The answer in each case is a general denial and a plea of nul tiel record

Some evidence was submitted of what purported to be a record of the proceedings in that court, and in each' case the plaintiffs below recovered judgment for the amount of the judgment that appears to have been obtained by them, respectively, in the circuit court of Grant county, Indiana, with interest to date.

The plaintiff in error urges various grounds for the reversal of these judgments. As my time is limited, I will go over them very rapidly, taking them from the brief of Frank E. Brady, plaintiff in error. It is said that:

“First — The petition in the Palmer case recites that Palmer, on November 19, 1896, recovered a judgment in the Grant county circuit court of Indiana, on a cross-petition, wherein John W. Cooper was plaintiff and Frank E. Brady and the plaintiff Palmer were defendants. There is no proof of this fact. The transcript does not show any suit pending wherein Palmer was a defendant or. that he at any time filed a cross-petition in any action in the circuit court of Grant county, Indiana, against Frank E. Brady. The transcript of the record, at the top of the first page thereof, shows that Palmer commenced a suit against Brady by filing his complaint and causing a summons to be issued. There is nothing to show that service was ever made on Brady, yet if Palmer made any recovery in that suit or in the Grant county circuit court of Indiana as shown by the transcript of the record in this case, it was on his complaint as plaintiff and not as a cross-petitioner as alleged in the petition now before this court. We claim all of this shows a variance between the pleading and the proof, which, under the plea of nul tiel record, is fatal.”

It appears, as stated by counsel in his brief, that the action was entitled “Palmer v. Brady,” and that the judgment was in fact recovered in favor of Palmer in the case of Cooper v. Brady. But the case of Cooper v. Brady was a case made up of many other cases consolidated, including this case of Palmer v. Brady, and we think that the petition or complaint in the case of Palmer v. Brady, after the consolidation of these cases, amounted in fact and in substance to a cross-petition in the case of Cooper v. Brady — the consolidated cases. There are some very technical rules in some jurisdictions, and were at common law, respecting variance between the allegations and the proof, especially upon the plea of nul tiel record; but we do not think that these rules in their strictness apply or should apply under the civil code, secs. 5294 and 5295, Rev. Stat. We regard this variation, therefore, as immaterial: we think that the proof substantially sustains the allegations.

“Second — The petitions filed in the four cases at bar recite that the Grant county circuit court of Indiana ‘had acquired jurisdiction by personal service on the said Frank E. Brady.’ The transcript of the record of the Grant county circuit court of Indiana in evidence does not show that a summons was issued for Frank E. Brady in any of these cases on any cross-petition or in any other manner. The only summons that purports to have been issued was on the Palmer complaint, and no return of that was ever made. We insist that this is a fatal variance.”

Now that statement of facts appears to be correct. But the petition also contains the averment that the parties appeared and that these several judgments were entered upon their agreement, which is a part of the record. This is disclosed by the record and this allegation is made good by the proof, and, therefore, we think that the allegation as to personal service became immaterial and that it did no good and did no harm in the case.

“Third — In the lower court the petitions were amended over the objection of the plaintiff in error, by interlineation, as follows: ‘By virtue of an agreement executed by the said Frank E. Brady, to have judgment rendered against the said Frank E. Brady’, in the sum of. etc. The transcript of the record does not show such to be the case. The agreement set up in the transcript of the record, if anyr was for a ■judgment against Frank E. Brady and George S. Calvert, 'not against Frank E. Brady alone, as alleged in the petition as amended. We insist that is a variance that is fatal on nul tiel record.”

Now, counsel is mistaken in saying that it is averred that this agreement was with Frank E. Brady alone. Frank E. Brady is the only one mentioned, it is true. It is averred that the agreement was with him and the judgment against him, but it is not averred that the agreement was with him alone or that the judgment was against him alone, and we think that the fact appearing that the agreement was with George S. Calvert also, and that the judgment went against George S. Calvert also, is immaterial.

“Fourth — The transcript of the record introduced in evidence shows that there were many more parties to the Indiana suit than alleged and set forth in the petition in these cases, making a variance between the pleadings and the evidence.”

That statement of fact is also true, and the same remark applies to it. Under our view of the matter it is immaterial that there wyere other parties than those mentioned in the petition.

“Fifth — The transcript of the record taken in connection with the clerk’s answer to the fourth question in his deposition, shows clearly that / the complete and final records in these cases have not been made. No pleadings are found in the transcript — simply ‘h. i.’, meaning ‘here insert.’ ” 1

And that is true. It runs all through the record. A great deal of the pleadings are omitted, but we think sufficient' appears, since the agreement to enter the judgment appears, and that the judgment was entered in accordance with the agreement also appears.

“Sixth — The transcript of the record shows that there has been a mixture of suits, and the clerk’s certificate shows that he certifies that the transcript is of the case of John W. Cooper v. William H. Brady, whereas these suits are against Frank E. Brady.”

. Now that also is true, and we are not able to understand precisely how it happens that what is apparently the same case has different titles; but the case is identified both in the transcript submitted and in each of the journal entries making a part of the transcript, and in the certificate ot the clerk, as case No. 8151 in the circuit court of Grant county. We presume it has been given different titles because it is a consolidated case, and that instead of giving in each instance all the titles of all the cases it has been given only the title of one of these cases mentioned in the journal entry. But there is sufficient, we think, to identify this record as the record pleaded in the petition and as the same as that certified to by the clerk.

“Seventh — There is no proof that the Union Supply Company and the National Supply Company are corporations, either foreign or domestic, and if foreign, as alleged in the petition, there is no proof that fejiey have complied with the laws of Ohio.”

I am sorry that I have not a little more time at my disposal to discuss this question, which is somewhat interesting; but I can only give briefly our conclusions. This applies to two of the cases only; one. the Union Supply Company — an Ohio corporation, as alleged in the petition ; the other The National Supply Company, a foreign corporation— a Virginia corporation, as alleged in the petition in that case.

Now we are of the opinion that it is not necessary to the statement of the plaintiff’s cause of action, or to bring the plaintiff into court to Raye these matters adjudicated, that it should aver in issuable form that it is a corporation, whether a domestic corporation or a foreign corporation. We think it is sufficient if it is recited; that it is a matter of description of the person, and that a general denial, such as we find here, only goes to the matters constituting the cause of action ‘of the plaintiff, if it is desired to take advantage of a want of capacity to sue in the plaintiff, whether a corporation or a natural person, that must be done by a special plea, in the nature of a plea in abatement. I cannot stop to discuss the different authorities along this line, but there are some and we think they support our views, though none of them are quite as clear and distinct upon the point as could be .wished. We cite: M. E. Church of Cincinnati v. Wood, 5 Ohio, 283; Elektron Mfg. Co. v. Jones Bros. Elec. Co., 4 Ohio Circ. Dec., 555; Toledo Com. Co. v. Glen Mfg. Co., 5 Ohio Circ. Dec., 131; Lewis v. President et al. of Bk. of Ky., 12 Ohio, 132; Smith v. Weed Sewing Machine Co., 26 O. S., 562.

As to the failure to show on behalf of this foreign corporation that it had complied with the laws of Ohio which provide certain things to be done by foreign corporations in order that they may lawfully do business in Ohio and prosecute actions here, I call attention to the case of the Toledo Commercial Co. v. Glen Mfg. Co., 5 Ohio Circ. Dec., 131, which was decided by the court. I can only read a paragraph or two from the syllabus:

“He who undertakes to apply as a defense to the payment of a debt the statute with reference to foreign corporations doing business in the state of Ohio, must bring his defense fully and plainly within the provisions thereof. Such pleadings should contain averments, to negative exceptions in the statute.
‘ ‘In order for a party to take advantage of the statute regulating foreign corporations, among other things he must show in his pleadings that the corporation complained of has a place of business within the state; that it is doing business within the state; that it does not come within any of the exceptions provided for in the statute, and that it has not complied with the requirements thereof.”

The averment in the petition of the National Supply Company is that it has complied with the laws of Ohio. To that there is a denial. We do not think that is sufficient to put the National Supply Company upon proof. We think the National Supply Company were not required to make that allegation in the first instance, and that (as is said in this decision) the defendant must set forth specifically wherein the foreign corporation has failed to comply with the laws so that it cannot prosecute its action in an Ohio court.

“Eighth — There is a variance between the petitions and the transcript of the record in this, that the judgments set out and described in the petition are larger than the judgments shown by the transcript of the records; that is, in the National Supply Company case the petition alleges that a judgment was recovered in the Indiana courts for $1,367.70, but the transcript of the record, on page 5, shows that the National Supply Company ‘ recovered of said defendants the sum of $1,300.20 and the further sum of $67.50 attorney’s fees,’ and the same is true of the other three judgments. No evidence was introduced ás to the right of a recovery of attorney’s fees or costs in the Indiana courts, and at common law, attorney fees and costs of suit were not recoverable, and the common law is presumed to prevail unless it is shown by proper evidence to have been changed by statute.”

Chas. F. Watts, for plaintiff in' error.

Taber & Whitmore, for defendants in error.

A part of the judgment consists of attorney fees, and that is specifically set forth, and it is urged that since no statute or law has been brought to the attention of the court authorizing the allowance of attorney’s fees as a part of the judgment, in Indiana, and since the law of Ohio does not allow it and the common law does not allow it, it must be presumed that the law of Indiana does not allow it; but we think advantage can not be taken, of this, because of the agreement of the parties upon which the judgment is rendered and that agreement sets forth specifically these attorneys’ fees and authorizes that judgment be entered for them. With respect to that agreement we may say that a witness testified that he was attorney of the defendant in error here, duly authorized in the premises to sign that agreement on behalf of the plaintiff in error.

“ Ninth — The judgments, as rendered by the court of common pleas, are excessive in large amounts, to-wit, for all of the interest that is included in each of them from the 19th day of November, 1896, the date of the rendition of the alleged judgment in the circuit court of Grant county, Indiana, to January 8, 1899, and also-for interest from January 3, 1899, for which judgment is rendered, although it is not figured in. There is no allegation in any of the petitions, pleading any statute as to interest or that a judgment bears interest in the state of Indiana. All of the evidence in these cases is before the court.”

Now, with respect to this question we have had some doubt. We are not prepared either to adopt, or reject that proposition, but in view of the fact that counsel for defendant in error has failed to furnish us with any authority which would seem to justify the allowance of this interest, under the circumstances we think and have concluded that it should be disallowed by this court, and the judgment should be modified to that extent. It will not require a reversal of the judgment; it will be modified, and the interest will be disallowed.

“ Tenth — There is no allegation in the petition pleading any statute as to the jurisdiction of the circuit court of Grant county, Indiana. We insist that the statutory jurisdiction of the court as well as the statutes conferring it are not subject to judiciary cognizance, but must be pleaded, and, in the face of a denial, must be proven.”

A section of the Revised Statutes of the state was introduced, showing that some court had jurisdiction of these cases ; what court, does not appear. Sufficient of the statute was not introduced for that purpose. But notwithstanding the provisions of sec. 5244, Rev. Stat. of Ohio, which provide the method by which the statutes of other states may be proved in the state of Ohio, we think they may also be proved by oral testimony of persons learned in the law who testify as experts with respect thereto, and the testimony appearing in the record of the judge as to the circuit court of that state having jurisdiction in the premises we regard as competent and sufficient.

Therefore the judgments will be affirmed, with the modification as to interest suggested. The costs in this court will be divided.  