Opinion
No. 30523
Decided July 17, 1946.
Declaratory Judgments Act — Salutary, remedial measure to be liberally construed and applied — Courts empowered to declare rights, status and other legal relations, when — Section 12102-1, General Code — Appeal General powers not restricted by Section 12102-2, General Code — Heard Section 12102-5, General Code — Pleading — Petition of lessor stated cause of action for declaratory judgment — Declaration of rights after lease expired and lessee retained possession.
1. The Declaratory Judgments Act of Ohio is a salutary, remedial measure and should be liberally construed and applied. (Paragraph one of the syllabus in the case of Ohio Farmers Ins. Co. v. Heisel, 143 Ohio St. 519, approved and followed.)
2. Under the provisions of Section 12102-1, General Code, courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations irrespective of whether further relief is or could be claimed.
3. As provided in Section 12102-5, General Code, the enumeration in Section 12102-2, General Code, does not limit or restrict the exercise of the general powers conferred in Section 12102-1, General Code, in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.
4. A cause of action for a declaratory judgment is stated in a petition in which a lessor of realty asks relief in the form of a declaration as to the legal rights, duties, status and relation of the parties after the lease has expired and the lessee has remained in possession of the lessor's premises.
APPEAL from the Court of Appeals for Coshocton county.
On November 8, 1934, the plaintiff, The Coshocton Real Estate Company, entered into a written agreement whereby it leased to the defendant, Lemotto Smith, a theater building and equipment in the city of Coshocton, Ohio, for a period of five years beginning November 1, 1934, and ending October 31, 1939.
It seems that the defendant lessee Smith, without the plaintiff lessor's written consent required by the lease, immediately assigned the lease to the defendant, Mu Wa Tu, Inc. In any event, the defendant corporation paid and the plaintiff accepted all rentals under the lease.
At the end of the original term of the lease it was extended by agreement for an additional period of fourteen months ending December 31, 1940. After that date the defendant Mu Wa Tu, Inc., remained in possession of the premises, and the facts with reference to this continued occupancy are the basis of the present controversy.
The plaintiff lessor filed an action with the following prayer for relief in the form of a declaratory judgment:
"Wherefore, plaintiff requests that the court answer the questions propounded in section 11 of this petition, determine the true meaning and construction of the lease and other agreement herein described insofar as the questions involved in this controversy are concerned, declare the rights of the parties, and as to the questions referred to herein, give such further relief by way of declaration of the rights of the parties under said lease and other agreement as may be lawful, just and proper."
The defendants filed a demurrer to the plaintiff's petition on the ground "that the same does not state a cause of action and the subject matter set out therein is not the subject of a declaratory judgment."
The Court of Common Pleas overruled the demurrer, the issues were joined, a hearing was had, and a judgment was rendered in favor of the plaintiff.
On an appeal by the defendants to the Court of Appeals the judgment of the trial court was modified and affirmed.
The case is in this court for review by reason of the allowance of the motion of the defendant, Mu Wa Tu, Inc., to certify the record.
Messrs. Wheeler Ely and Mr. Harold E. Hunt, for appellee.
Messrs. Pomerene Burns, for appellant.
The sole question presented in the Court of Appeals and in this court is whether the trial court was in error in overruling the defendants' demurrer to the plaintiff's, petition.
The plaintiff states that it instituted this action under favor of Section 12102-1, General Code, which provides in part that "courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed."
The defendants contend that these provisions are restricted by the following language of Section 12102-2, General Code:
"Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder."
To sustain their view the defendants rely upon the decision of this court in the case of the Ohio Farmers Ins. Co. v. Heisel, 143 Ohio St. 519, 56 N.E.2d 151, in which it was held that "an insurer may not obtain a declaratory judgment with reference to its insurance policy when no question of construction or validity thereof is raised."
The defendants insist that a declaratory judgment may not be employed for the purpose of obtaining "mere findings of fact where there is no contract to be interpreted." In the opinion in the Ohio Farmers Ins. Co. case, supra, it was emphasized that the sole issue presented was a question merely of fact as to whether at the time of the collision the automobile was being driven with the permission of the insured. No question was raised as to "rights, status or other legal relations" either under the insurance policy or otherwise. It is true, as contended by the defendants, that in Section 12102-2, General Code, a "written contract or other writings constituting a contract" are mentioned, but there is nothing to indicate that these provisions are intended as such a limitation on the preceding section. To the contrary, in cognate Section 12102-5, General Code, it is provided expressly that "the enumeration in sections 2, 3 and 4 [Sections 12102-2, 12102-3 and 12102-4, General Code] does not limit or restrict the exercise of the general powers conferred in section 1 [Section 12102-1, General Code] in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty." In the first section jurisdiction is conferred "to declare rights, status, and other legal relations." This is precisely the relief asked by the plaintiff. Concededly the term of the written lease together with the fourteen-month extension had expired at the time the plaintiff instituted this action, but the defendant, Mu Wa Tu, Inc., still was in possession of the plaintiff's premises, and in its petition the plaintiff, in the form of six questions, properly asked the trial court for a declaratory judgment as to the legal rights, duties, status and relation of the parties under the circumstances.
Hence, the defendants' demurrer to the plaintiff's petition was correctly overruled.
Judgment affirmed.
ZIMMERMAN, BELL, WILLIAMS, TURNER, MATTHIAS and HART, JJ., concur.