Opinion
No. 37479
Decided March 20, 1963.
Appeal — Final order — Overruling motion to vacate default judgment — Parties — Person, not party, filing motion to vacate judgment — Right to object waived, how — Estoppel to deny being party — Judgment res judicata between parties — Direct attack only.
1. An order overruling a motion to vacate a default judgment is a final appealable order.
2. One, who has not been a party to an action but who files a motion to vacate a default judgment therein, thereby participates in that action as a party; and, if no objection is raised to his so participating in that action, he is estopped by so participating from later contending that he was not a party when the court made an order overruling that motion.
3. The right to object to a person participating as a party in an action is waived if not raised at the earliest opportunity.
4. Where a person appears in an action for the purpose of contending that a judgment is void as a judgment against him, such person thereby submits to the court for its determination the question whether such judgment is or is not void as a judgment against him; and, if the court determines that such judgment is not void as a judgment against him, even though that determination is erroneous on the facts and on the law, the determination is res judicata between the parties and can only be attacked directly by an appeal therefrom.
APPEAL from the Court of Appeals for Cuyahoga County.
This action was instituted in the Common Pleas Court of Cuyahoga County on June 9, 1956, by the filing of a petition stating in the caption that Mrs. Lyndall Claxton was plaintiff and Mrs. Gertrude Simons was defendant. That petition was sworn to by Mrs. Lyndall Claxon (not Claxton) and alleged that plaintiff was injured on November 22, 1955, as a proximate result of the negligence of defendant in maintaining an unlighted common stairway leading from a suite on the second floor of property located at 1519 West 38th Street in Cleveland.
The caption of the petition stated defendant's address to be 20771 Beech Cliffe, Route 10, Rocky River, Ohio. The summons issued on that petition for Mrs. Gertrude Simons was returned by the sheriff, stating that he had on June 11, 1956, served defendant "Mrs. Gertrude Simons by leaving a true and attested copy thereof with all the endorsements thereon at her usual place of residence."
Dr. Peter J. Simon owned the property at 1519 West 38th Street in Cleveland until his death in 1954. Mrs. Gertrude Simon (not Simons) was the wife of Dr. Simon. She married Louis Balogh on November 24, 1955, two days after the alleged time of the injury alleged in the foregoing petition. Mrs. Gertrude Simon had been executrix under the will of Dr. Simon and, on January 19, 1956, the record title to the 1519 West 38th Street property was transferred to her as Mrs. Gertrude Balogh.
On June 14, 1956, when the sheriff returned that he had made residence service on Mrs. Gertrude Simons "at her usual place of residence" ( i.e., 20771 Beech Cliffe, Route 10, Rocky River, Ohio, as indicated in the caption of the petition), Mrs. Gertrude Balogh (who had been Mrs. Gertrude Simon before her marriage on November 24, 1955, to Mr. Balogh) lived at 20771 Beach Cliff Blvd., Rocky River, Ohio, where the copy of the summons had been left by the sheriff.
On October 26, 1956, a default judgment for $10,000 was rendered for Mrs. Lyndall Claxton (not Claxon) against Mrs. Gertrude Simons.
On December 29, 1956, Gertrude Balogh, as owner of the West 38th Street property, filed a motion to vacate that judgment. In that motion and the affidavit filed in support thereof, Mrs. Balogh stated that:
1. There was no Mrs. Lyndall Claxton.
2. The petition was not verified by Mrs. Claxton but was verified by Mrs. Lyndall Claxon.
3. There was no Mrs. Gertrude Simons.
4. That Mrs. Balogh had been Mrs. Gertrude Simon (not Simons) until November 24, 1955, but had been Mrs. Gertrude Balogh since then.
5. That the judgment was a cloud upon her title to the West 38th Street property.
Mrs. Balogh's motion was overruled, and she did not appeal from the order of the court overruling it.
Some time later, plaintiff filed a second supplemental petition against the defendant insurer, pursuant to Section 3929.06, Revised Code, which reads so far as pertinent:
"Upon the recovery of a final judgment against any * * * person * * * by any person * * * for loss or damage on account of bodily injury * * * if the defendant in such action was insured against loss or damage at the time when the rights of action arose, the judgment creditor * * * is entitled to have the insurance money provided for in the contract of insurance between the insurance company and the defendant applied to the satisfaction of the judgment. If the judgment is not satisfied within 30 days after it is rendered, the judgment creditor * * * to reach and apply the insurance money to the satisfaction of the judgment, may file a supplemental petition in the action in which said judgment was rendered * * *."
The defendant insurer agreed to a stipulation admitting "co-operation by Gertrude Balogh and notification of an accident on November 22, 1955 by Mrs. Lydall [not Lyndall] Claxton in the premises at 1515-1519 West 38th Street, Cleveland, Ohio and notice of a subsequent petition filed by Mrs. Lydall [not Lyndall] Claxton and that our assured, Gertrude Balogh, notified" the insurer "and complied with all the conditions precedent under her policy and" agreed "that a valid policy of insurance on the said premises existed."
The Common Pleas Court rendered judgment against defendant insurer.
The Court of Appeals reversed that judgment and rendered final judgment for the defendant insurer.
The cause is now before this court on appeal from that judgment of the Court of Appeals pursuant to allowance of a motion to certify the record.
Mr. Lawrence Landskroner and Mr. William Magid, for appellant.
Mr. Donald M. Marshman, for appellee.
We have considerable doubt about the conclusion of the Court of Appeals, that the judgment rendered in favor of Mrs. Claxton "against `Gertrude Simons' was entered without jurisdiction" over the person of Mrs. Balogh and so was "void" as a judgment against Mrs. Balogh. State, ex rel. American Union Telegraph Co., v. Bell Telephone Co. (1880), 36 Ohio St. 296, 38 Am. Rep., 583; Maloney v. Callahan (1933), 127 Ohio St. 387, 188 N.E. 656; Aldrich v. Friedman (1923), 18 Ohio App. 302. See Moriarty v. Westgate Center, Inc. (1961), 172 Ohio St. 402, 176 N.E.2d 410; Burton v. Buckeye Ins. Co. (1875), 26 Ohio St. 467. But see Uihlein v. Gladieux (1906), 74 Ohio St. 232, 78 N.E. 363. However, we do not believe it necessary to consider whether the Court of Appeals was correct in that conclusion. The precise question that the Court of Appeals answered in favor of Mrs. Balogh in reaching that conclusion had previously been raised by Mrs. Balogh's motion to vacate the judgment, and it had been determined against Mrs. Balogh by the order of the Common Pleas Court overruling her motion.
An order overruling a motion to vacate a default judgment is a final appealable order. See Cox v. Cox (1922), 104 Ohio St. 611, 136 N.E. 823.
The defendant insurer contends, however, that Mrs. Balogh could not have appealed from the order overruling her motion to vacate the default judgment in favor of Mrs. Claxton against Mrs. Simons because she had not been made a party to the action in which it was made. By filing the motion to vacate the default judgment against Mrs. Simons, Mrs. Balogh, as Mrs. Balogh, participated in the action as a party. No one objected to her so participating as a party. It is elementary that the right to object to a person participating as a party in an action is waived if not raised at the earliest opportunity. 41 Ohio Jurisprudence (2d), 519, Section 52. Furthermore, Mrs. Balogh would be estopped by that participation from later making the inconsistent contention that she was not a party at the time when the court made its order overruling her motion to vacate the default judgment. See State, ex rel. Brickell, v. Roach, Recr. (1930), 122 Ohio St. 117, 170 N.E. 866.
Mrs. Balogh did not appeal from that order. It is now too late for her to attack it directly; and she could not attack it collaterally.
Of course, as the Court of Appeals pointed out in its opinion, if the judgment against Mrs. Simons did not represent a valid judgment against Mrs. Balogh because the court had acquired no jurisdiction over Mrs. Balogh's person before it rendered that judgment, then Mrs. Balogh's filing of a motion to vacate that judgment would not cause it to become a valid judgment against her. Hayes v. Kentucky Joint Stock Land Bank of Lexington (1932), 125 Ohio St. 359, 181 N.E. 542. However, where a person appears in an action for the purpose of contending that a judgment is void as a judgment against him, such person thereby submits to the court for its determination the question whether such judgment is or is not void as a judgment against him; and, if the court determines that such judgment is not void as a judgment against him, even though that determination is erroneous on the facts and on the law, the determination is res judicata between the parties and can only be attacked directly by an appeal therefrom. Baldwin v. Iowa State Traveling Men's Assn. (1931), 283 U.S. 522, 75 L. Ed., 1244, 51 S. Ct., 517; Restatement of the Law, Judgments, 50, Section 9; 50 Corpus Juris Secundum, 182, Section 714.
In our opinion, therefore, the foregoing judgment against Mrs. Simons now is a valid judgment against Mrs. Balogh; and, in view of the stipulation agreed to by defendant insurer and of the provisions of Section 3929.06, Revised Code, judgment should be rendered against the defendant insurer on the second supplemental petition.
It follows that the judgment of the Court of Appeals must be reversed and that of the Common Pleas Court affirmed.
Judgment reversed.
ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.