
    Hamilton v. The Ohio State Bank & Trust Co.
    
      Negotiable instruments — Petition to vacate judgments — Section 11635, General Code — Error to exclude evidence and dismiss petition — Joint maker not summoned and judgment for more than due — Section 11631, General Code — All joint makers necessary parties, when — Pleading—Allegations of petition admitted by motion for judgment on pleadings.
    
    1. A petition to vacate a judgment against plaintiff, rendered at a prior term of court, which avers that the judgment was rendered against him and in favor of the defendant for $15,223.30 and costs, that he was not summoned or otherwise legally notified of the filing of the action, that the note on which judgment was taken was a joint note signed by him and others and the suit was filed and judgment taken against him alone, although the other makers resided in the state, that he signed the note as surety only, which was known to this defendant, that judgment was taken for more than was due, and that this plaintiff was not indebted on the note in any sum and has a complete defense, the nature of which is set out, states a good cause of action, and it is error to sustain an objection to the introduction of any evidence and dismiss the petition.
    2. It is irregular to render judgment against only one of the makers of a promissory note which is joint, and not joint and several, without bringing the action against all.
    3. In action by petition under General Code, Section 11635, to vacate judgment, on defendant’s motion for judgment on pleadings, court must take allegations of petition as admitted to be true same as on demurrer.
    [1] Judgments, 34 C. J. §771; [2] Bills and Notes, 8 C. J. §§ 1110, 1408 (Anno.); [3] Pleading, 31 Cyc. p. 606.
    (Decided June 22, 1925.)
    Error: Court of Appeals for Summit county.
    
      
      Mr. Lee J. Myers, for plaintiff in error.
    
      Messrs. Mather, Nesbitt & Willkie, for defendant in error.
   Richards, J.

The plaintiff, David Hamilton, brought an action in the court of common pleas to vacate a judgment rendered against him at a prior term of that court. The defendant filed an answer admitting the rendition of the judgment in its favor against the plaintiff in the court of common pleas, in the amount claimed, and denied every other allegation contained in the petition. When the cause came on for trial in that court the defendant objected to the introduction of any evidence, and the court sustained the objection and rendered a judgment dismissing the petition. The regularity of that action is contested by this proceeding in error.

In order to determine whether the court was authorized to render the judgment it will be necessary to look to the substance of the averments of the petition. In his petition the plaintiff alleges the rendition of a judgment against bim at a prior term of the court for $15,223.30, and costs, and that he was not summoned or otherwise legally notified of the filing of the action against him, or of the time and place of taking the judgment. He further avers that the note upon which judgment was taken was a joint note signed by bim and others, and that the suit was filed and judgment taken against him only, although one of the other joint makers of the note had its principal place of business at Akron, Ohio, and the other joint maker was a resident of Kent, Ohio. He further avers that he signed such note as surety only, all of which was known to The Ohio State Bank & Trust Company. The petition contains the further averments that judgment was taken upon said note for more than was due, that this plaintiff is not indebted thereon in any sum whatever, and that he has a full and complete defense to the note. And the petition sets out the nature of that defense.

On the defendant’s motion for judgment on the pleadings we must take the allegations of the petition as admitted to be true, the same as on demurrer. The proceeding to vacate the judgment was not by motion in the original case, but by petition under Section 11635, General Code, by a new action, having a different number and title from the original action. The plaintiff claims that the grounds for vacation are within the terms of Section 11631, paragraphs 3 and 9, General Code. These paragraphs read:

“3. For mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order. * * *

“9. For taking judgments upon warrants of attorney for more than was due the plaintiff, when the defendant was not summoned or otherwise legally notified of the time and place of taking such judgment.”

It seems to the court that the petition contains all the essential averments required by the section quoted. The petition charges that this plaintiff was not summoned or notified, that judgment was taken for more than was due, that he is not indebted in any sum on the note and has a complete defense to the note, and sets up the facts showing the nature of the defense.

The promissory note being joint in form and not joint and several, it was irregular to take a judgment against one of the joint signers of the note without bringing the action against all. Holmes v. Cairl, 20 C. C. (N. S.), 289, 31 C. D., 310, and cases cited.

It is urged that the trial court could take judicial knowledge of the fact that the original judgment was rendered on a cognovit note, but, in view of the fact that the original judgment was rendered in another action, the claim that the court could take judicial notice of the pleadings in that action is not tenable. And even if the court could take judicial notice that the original action was one brought on a cognovit note, the averments of the petition bring the plaintiff within the provisions of paragraph 9 above quoted.

For the reasons given, the judgment must be reversed and the cause remanded for further proceedings.

Judgment reversed and cause remanded.

Williams and Young, JJ., concur.

Judges of the Sixth Appellate District sitting in place of Judges Pardee, Funk and Washburn, of the Ninth Appellate District.  