Motion to Print Abbreviated Record — Titus v. Wallick

FILE COPY sue 9 1

SUPREME COURT OF THE UNITED “SP s'Pes¥o* e*orter

OCTOBER TERM, 1938

No. 188

EDWARD H. TITUS, F

Petitioner,

ts.

LOU C. WALLICK.

’ PETITION POR WHIT OF CERTIORARI TO THE SUPREME COURT

OF THE STATE OF O10.

MOTION TO PRINT ABBREVIATED RECORD.

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1938.

No. 188

EDWARD H. TITUS,

vs.

LOU C. WALLICK,

Petitioner,

Respondent.

MOTION TO PRINT ABBREVIATED RECORD.

To the Supreme Court of the United States and the Honor-

able Justices Thereof:

Comes now Edward H. Titus, petitioner in the above

entitled cause, by his attorneys, Thomas |. Sheridan and

Aaron Frank, and moves this Honorable Court for an order

to print an abbreviated record herein consisting of the

following parts of the record filed in this cause with the

Clerk of this Court on the 8th day of July, 1938:

Record

pages.

l. Transcript of docket and journal entries,

Court of Common Pleas, Franklin County,

Ohio i

2. Transcript of docket and journal! entries

from the Court of Appeals, Franklin

County, Ohio 210, 211, 214

lo

4. Transcript of docket and journal entries,

Supreme Court of Ohio

4. Petition of Edward H. Titus, plaintiff, filed

in the Court of Common Pleas, Franklin

County, Ohio, on August 20, 1934 49

5. Exemplified copies of the following, annexed

to said petition, together with certifica.

tion with respect thereto 16-3]

Summons in the action commenced in the

New York Supreme Court, County of New

York, by Edward H. Titus, plaintiff, vs. Lou

C. Wallick, defendant. «

Final judgment, with notice of entry, in

said action, dated May 1, 1934, confirming

Referee's report filed in the Office of the

Clerk of the County of New York on March

29, 1934, and granting judgment in favor of

Edward H. Titus, plaintiff, against Lou (.

Wallick, defendant, in said action in the Su-

preme Court of the State of New York, New

York County, in the sam of $389,103.21.

6. Summons issued on August 20, 1934, by the

Clerk of the Court of Common * Pleas,

Frank!in Courty, Ohio, in suit commenced

in said court by Edward H. Titus, plain.

tiff, vs. Lou C. Wallick, defendant, and

sheriff's return thereof Je

7. Alias summons issued on September 7, 1934.

by the Clerk of the Court of Common

Pleas, Franklin County, Ohio, in suit com

menced in said court by Edward H Titus,

plaintiff, vs. Lou C. Wallick. defendant,

and sheriff's return thereof 33

Answer filed in the Court of Common Pleas,

Franklin County, Ohio, on October 6,

1934, by Lou C. Wallick, defendant

9. Motion and memorandum filed in the Court

of Common Pieas, Franklin County, Ohio,

on October 26, 1934, by Edward H. Titus,

plaintiff, to strike defendant’s answer

from files as frivolous and interposed

solely for purpose of delay

10. Defendant ’« memorandum answering plain-

tiff’« motion to strike answer fror the

files, filed on November 14, 1934

ll. Entry and order filed on November 23, 1934,

overruling plaintiff's motion to strike

from the files the answer interposed in the

above entitled action by defendant

12. Defendant's amended answer filed on Octo-

ber 17, 1935

13. Defendant's amendment to amended answer

filed on November 8, 1935

14. Plaintiff’s answers to interrogatories, sub-

mitted with the amended answer of the

defendant filed by plaintiff on December

7, 1935

15. Plaintiff's reply to defendant's amended

answer filed on January 14, 1936

16. Opinion and decision rendered in the above

entitled action by Judge Charles A. Leach

of the Court of Common Pleas, Franklin

County, Ohio, on Apr:! 21, 1936

17. Plaintiff's request to separately state con

clusions of fact from conclusion« of law

filed on April 24, 1936

18 Plaintiff's motion for a new tria) filed on

April 24, 1936

>

43,44

69, 70

78, 79

182

1a

: - -

~ ee

—

19.

&

Plaintiff's motion filed on April 24, 1936, re-

questing the trial court to rule upon the

admissibility of plaintiff’s Exhibit D and

defendant’s Exhibits Nos. 1 to 8, inclu-

sive, and further, that the trial court rule

upon the motions made by plaintiff at the

close of defendant’s evidence and at the

close of all of the evidence

Written decision, filed on September 19,

1936, of Judge Charles A. Leach of the

Court of Common Pleas, Franklin County,

Ohio, setting forth findings of fact and

conclusions of law

. Entry filed June 30, 1936, overruling plain-

tiff’s motic.. for a new trial ’

Plaintiff's motion requesting the tria! court

to amend its findings of fact by finding

whether a reassignment of the claim wa«

made by Walter L. Titus to plaintiff on

December 1, 1925, and whether defendant

had knowledge of a reassignment, said

motion being filed on October 24, 1936

Entry and order filed on December 3, 1936,

overruling plaintiff’s motion requesting

the trial court to amend its findings of

fact

and entries subsequent thereto

. Entry and judgment filed on December 3.

1936, ruling on the admissibility of plain

tiff’s Exhibit D and the defendant's Ex.

hibits Nos. 1 to 8, inclusive; overruling

plaintiff’« motions at the close of al! of

the evidence ; overruling plaintiff's motion

for a new trial and rendering judgment

against plaintiff for costs and in favor of

defendant

Record

pages.

IN

186-19

LS

19]

180), 161

132

193, 194

patentee: et ILE — —_——

Record

pages.

95, Plaintiff's amended notice of appeal filed on

December 12, 1936, from final order and

judgment rendered herein by the Court

of Common Pleas, Franklin County, Ohio 198-200

9%. Entry filed on February 24, 1937, correcting

the entry and final order and judgment

herein of December 3, 1936, and entering

same nunc pro tunc 203-209

o* Plaintiff’s assignments of error filed with

the Court of Appeals of Franklin County,

Ohio 218, 219

o Entry and order of the Court of Appeals of

Franklin County, Ohio, filed February 14,

1938, affirming the judgment herein of

the Court of Common Pleas of Franklin

County, Ohio 235

% Opinion and decision affirming the judgment

° herein of the Court of Common Pleas of

Franklin County, Ohic, rendered by Court

of Appeals of Franklin County, Ohio, on

November 30, 1937 220-254

%). Mandate from Court of Appeals of Franklin

County, Ohio, filed February 14, 1938, af-

firming the judgment herein of the Court

of Common Pleas of Franklin County,

Ohio, ordering that defendant recover hi-

costs of appellant and ordering further

that a special mandate issue directing

said Court of Common Pleas to carry said

judgment into execution 236, 23%

31. Plaintiff ’s notices of appeal to the Supreme

Court of Ohio from judgment rendered

herein by the Court of Appeals of Frank

lin County, Ohio, said notices of appeal

being filed on March 4, 1938, in said Court

of Appeals of Franklin County, Ohio, and

in the Supreme Court of Ohio 33s, 241

-/

32. Plaintiff’s assignments of error filed in the

Supreme Court of Ohio on March 8, 1938

33. Plaintiff’s motion in the Supreme Court of

Ohio for an order directing the Court of

Appeals, Franklin County, Ohio, to cer-

tify its record to the Supreme Court

34. Defendant’s motion to dismiss plaintiff’s ap-

peal as of right, for the reason that no

debatable constitutional question is in-

volved in the case

35. Entry and order made by the Supreme Court

of Ohio on April 27, 1938, overruling

plaintiff’s motion for an order directing

the Court of Appeals of Franklin County,

Ohio, to certify ite record, set forth in

Journal Entries

36. Judgment entry of the Supreme Court of

Ohio made on April 27, 1938, ordering and

adjudging that plaintiff’s appeal, filed as

of right herein, be dismissed, for the rea-

son that no debatable constitutional ques-

tion is involved in the cause herein, and

further ordering and adjudging that de-

fendant recover from plaintiff his costs

and that a special mandate be sent to

the Court of Common Pleas of Franklin

County, Ohio, to carry said judgmeni into

execution, set forth in Journal! Entries

37. Bill of exceptions, filed on December 18,

1936, in the Court of Common Pleas of

Franklin County, Ohio, setting forth the

proceedings at the trial of the cause herein

on January 20, 1936

38. From bill of exceptions, filed in the Court of

Common Pleas of Franklin County, Ohio,

setting forth notice to take depositions,

dated January 21, 1936; and setting fourth

further the depositions of Louis W. Sev-

ery and Edward H. Titus, plaintiff

245, 46

#9-111]

112-127

emma dE —

7

Record

pages.

39. The opinion rendered by Mr. Justice Ed-

ward J. McGoldrick on April 13, 1934,

confirming Referee’s report and prelim-

inary to submission of final judgment of

May 1, 1934, said opinion being set forth

on page 881 of defendant’s Exhibit 5, con-

sisting of the record on the appeal taken

by defendant from final judgment in plain-

tiff’s favor in the Supreme Court of the

State of New York 148,

folios 2641

to 2643

40. Exemplified copies, and certificate of the

Clerk of the County of New York pertain-

ihg thereto, of the order of the Appellate

Division of the Supreme Court of the

State of New York, First Department,

affirming the judgment of the Supreme

Court, New York County, in favor of

plaintiff herein and against defendant

herein, which judgment was entered on

the first day of May, 1934, said order being

made on May 24, 1935; and of the judg-

ment entered on said affirmance in the

office of the Clerk of the County of New

York on June 5, 1935; said exemplified

copies constituting plaintiff’s Exhibit B 128-131

41. Statement under Rule 234 contained in de-

fendant’s Exhibit 4, on pase 1 thereof,

pertaining to the action in the Supreme

Court of the State of New York wherein

Edward H. Titus was plaintiff and Lou ©.

Wallick was defendant, said Exhibit 4

consisting of the record on the appeal

taken by defendant from final judgment

in plaintiff’s favor in the Supreme Court

of the State of New York 147,

folios 1 to 9

a

-*

pages,

"42. Defendant’s Exhibit 7 at the trial herein,

constituting an affidavit sworn to on Au-

gust 17, 1934, by plaintiff herein, said affi-

, davit having been interposed on Septem-

ber 7, 1934, in an action in the Supreme

Court of the State of New York, New

York County, wherein plaintiff herein was

defendant and one London I. Wallick was

plaintiff ; together with certification of the

Clerk of the County of New York with

respect thereto. 151-16

43. Instrument of assignment executed by Ed-

ward H. Titus, plaintiff, on March 31,

1924, constituting defendant’s Exhibit 8

ete aor nn, ae 165

44. Agreement dated December 1, 1925, between

Walter L. Titus and plaintiff herein, con-

herein, said Exhibit E being the original

of said agreement and plaintiff’s Exhibit

D at the trial] herein, being an executed

copy thereof - eee eyo 137-142

-and envelope, constituting plaintiff's Ex-

ose i a 143

45. Excerpt from testimony given by plaintiff

herein upon cross-examination during the

first trial held in the Supreme Court of

7 the State of New York, said excerpt being

contained in defendant ’s Exhibit 1 herein,

and consisting of the last question at folio

399, the answer thereto appearing at folio

400 and the first question and answer ap-

pearing at folio 400, inserting after the

word ‘‘he’’ in the last answer, the name

London I. Wallick in parentheses, said

folios, further, being contained In pages

133 and 134 of the Case on Appeal con-

tained in said defendant’s Exhibit 1, said

Case on Appeal consisting of the record

of the Proceedings had on the first trial

Record

pages.

held in the Supreme Court of the State of

New York wherein Edward H. Titus was

plaintiff and Lou C. Wallick was defend-

ant | ree ry 144,

folios 399 and

400 of second

Case on Appeal

in said Exhibit

46. Judgment rendered in the Supreme Court of

the State of New York on December 29,

1926, and entered on January 3, 1927, in

favor of defendant and against plaintiff,

said judgment being set forth on pages

41 to 43, inclusive, of the Case on Appeal

set forth in defendant’s Exhibit 1, said

Case on Appeal consisting of the record

of the proceedings had on the first trial

held in the Supreme Court of the State of

New York wherein Edward H. Titus was

plaintiff and Lou C. Wallick was de-

NIE os oe a oa ap 144,

folios 121-127

of second Case

on Appeal in

said Exhibit

47, Opinion rendered by Mr. Justice Proskauer

prior to the making of said judgment of

December 29, 1926, said opinion being set

forth on pages 371 to 379, inclusive, of the

Case on Appeal set forth in defendant’s

Exhibit 1, said Case on Appeal consisting

of the record of the proceedings had on

the first trial held in the Supreme Court

of the State of New York wherein Ed-

ward H. Titus was plaintiff and Lou C.

Wallick was defendant 144,

folios 1111-1136

of second Case

on Appeal in

said Exhibit

af s : :

7 8

Sy

Record

pages.

afidavit being set forth on pages 115 to

122, inclusive, of defendant's Exhibit 1,

consisting of the record on the appeal

taken by plaintiff from an order granting

a second trial in the Supreme Court of

the State of New York 14,

folios 343-366

‘ourt of the State of New York 144,

folios 5-18

upon granting defendant's motion for a

by plaintiff from an order granting a sec

rial in the Supreme Court of the

New York 1H,

folios 510-530

testimony given by plaintiff upon

second trial held in the Supreme

the

question at folio 489, questions and

questions

folio 491, being contained on pages 163

of New York 14,

folios 154-149

56. Opinion rendered by Mr Justice Bernard

to ry

13

Record

pages.

of the State of New York after the Appel-

late Division of the Supreme Court of the

State of New York, First Department, re-

versed judgment in favor of defendant

after a second trial in the Supreme Court

of the State of New York 146,

folios 2296-2300)

Si. Judgment of reversal entered on March 16,

1932, said judgment being an interlocu-

tory judgment in favor of plaintiff and

against defendant and reversing said

judgment made by Mr. Justice Shientag

on January 26, 1931, said interlocutory

judgment of reversal being set forth on

pages 784 to 787, inclusive, of defendant's

Exhibit 3, consisting of the record on the

appeal taken by the defendant to the

Court of Appeal« of the State of New

York from interlocutory judgment en-

tered in the Supreme Court of the State

of New York after the Appellate Divi-

sion of the Supreme Court of the State

of New York, First Department, reversed

judgment in favor of defendant after a

second trial in the Supreme Court of the

State of New York 146,

folios 2251-2361

Order of reversal of February 26, 1932, ren-

dered by the Appellate Division of the Su-

preme Court of the State of New York,

First Department, reversing judgment of

January 26, 1931, made by Mr. Justice

Shientag, and upon which order was predi-

cated the judgment of reversal of March

16, 1932, said order being «et forth on

pages 772 to 784, inclusive, in defendant's

| Exhibit 3, consisting of the record on the

appeal taken by the defendant to the

’ J

ment in favor of defendant after a 8econd

trial in ‘

59. Exemplified copy, and Certificate of the

Clerk of the County of New York Pertain.

ing thereto, of t entered on July

. Order made on April an 1983, by Mr. Jug.

Preme Court of the State of New York on

April 20, 1933, Vacating a referee's report

132-1%

145,

15

Record

pages.

clusive, of defendant '« Exhibit 2, consist.

ing of the record on the appeal taken by

defendant from the order made in the Su.

preme Court of the State of New York on

April 20, 1933, vacating a referee's report 145,

folios 425-435

62. Order made by the Appellate Division of the

Supreme Court of the State of New York,

First Department, on October 13, 1933,

affirming the order vacating Referee's re.

port made by Mr. Justice Irwin Unter.

myer on April 20, 1933, and ordering, fur-

ther, that Honorable Jeremiah T. Ma.

honey be appointed as Referee ; said order

being set forth on pages 42 and 43 of de.

fendant’s Exhibit 4, consisting of the ree.

ord on the appeal taken by defendant

from final judgment in plaintiff's favor in

the Supreme Court of the State of New

York 147,

folios 124-128

©. Certificate of Clerk of the Supreme Court

of Ohio 248

L. On the 8th day of July, 1938, petitioner, by his attor-

bess, filed with the clerk of this Court his petition in

Proper form, for a writ of certiorari to the Supreme Conrt

of the State of Okio to review here the order or judg.

ment of that court and the judgment of the Court of

Appeals, Franklin ( ‘ounty, State of Ohio. supported by

brief, and which petition is now pending before this

Court.

~. The sole question for adjudication bere presented by

the petition for certiorari, is whether the Supreme Court

of the State of Ohio and the Court of Appeals, Franklin

County, State of Ohio, denied to petitioner the title, right,

of Congress enacted pursuant thereto and the full faith ap

credit it had and still has in the State of New York, and:

the laws of that State. Such failure to accord said Jue,

ment of the Supreme ( ‘ourt of the State of New York, fe!

faith and credit under said Article IV, Section 1 of th

Stated ground that Petitioner was not the real party i:

interest in the Supreme Court of the State of New York

eounsel by the clerk of the Supreme Court of the Stat

of Ohio, a copy of the complete record of this case in the

Supreme Court of Ohio, bearing Proper certificate of the

4. The copy of the record so fled contains 243 trpe

“ritten pages, legal size ard 8pproximately 3.000 printed

Pages of exhibits. amounting in ali to “approximately 3,24)

pages.

ss

17

5. The cost of printing the complete record and exhibits

ia the Supreme Court of the State of Ohio, as transmitted

under the certificate of it« clerk and filed in this Court,

vould be approximately $6.0), while the printing of only

the relevant portions of the record above designated,

amounting to approximately 2%) pages, will cost not to

exceed $500.

6. An examination of thi- record discloves that it nat

arally divides itself into two distinet parts: One part con

cerns itself with the constitutional question which is com

pletely embodied in the relatively small part of the record

above scheduled. The other portions of the record are con

cerned with testimony, pleadings, orders and decision=-

relating to question~ of fact, litigated in the original action

im the court« of the State of New York and which were

foreclosed to further consideration by the judgment of the

Supreme Court of New York, or are concerned with is-ue-

of local practice and procedure in Ohio that have been

finally and fully determine! by interlocutory ruling- and

orders in the litigation, which have no bearing upon the

constitutional question at issue in this Court. The record

of the proceedings had in the State of Ohio, with the exeep

ton of the aforementiona! local practice and procedural

matters and exhibit~ consisting of record of proceeding-

in the court« of the State of New York, ha~ been incorpo

rated in full in the aforementione| schedule, and such

record contain~ all possibly necessary amd relevant por

Hons of the testimony and exhibit- in the New York an:

Ohio proceeding~, which in any way tend to have a bearing

upon the constitutional question before this Court. With

respect to the New York proceediing~ the aforetnentione!

schedule set« forth the pleading=. the final judgement, vari

Ous orders of affirmance or reversal, a- the case may be,

interlocutory judgment-, such opinion- of the New York

18

~ eee ew! ME we

court as are not officially reported and such excerpts {rua

testimony given or affidavits filed in the New York proved

ings as affect the question as to whether your moving part

perpetrated a fraud upon the New York courts in prow

ceuting a cause of action against respondent therein. Ty

aforementioned schedule omits reference to testimony a

exhibits in the New York proceedings which relate, strict:

to the merits of petitioner’s cause of action against »

spondent or to the proceedings before the referee, relatir

to the computation of damage, pursuant to which f nal jude

ment was rendered in the State of New York. It also ome

reference to the proceedings before the second refere

whose report was vacated, as well as to subsidiary matter.

relative to respondent's application for a uew tria! afte

the judgment in his favor was reversed for the first tim

by the Appeilate Division. Said aforementioned schedu-

omits reference to such procedura! matters in the Ohio pro

ceeding as relate, among other things, to whether servie

of the original summons should be set aside, various order:

relating to the filing of briefs or amended pleading~, ane

proceedings relative to interrogatories submitted by de

fendant with his answer. In summary, the great bulk o!

the record filed with the clerk of this Court on the Sth da:

of July, 1938, consists of exhibits offered in evidence ix

the Court of Common Pleas, Franklin County, Ohio, b

respondent, setting forth the printed records on appea

utilized in the New York proceeding and the aforementioned

schedule sets forth such portions thereof as are necessar

to give a proper background for adjudication with re~pec!

to the final judgment rendered in Ohio. Petitioner ask-

leave merely to proceed on an abbreviated record which

will, essentially, omit testimony and exhibits offered in tl»

New York proceeding referable to the merits of the orig

inal cause of action or to proceedings before referees

7 - -~ eee tee |

a ee.

—™~™ id

en —_ cenatbaaas

™

19

7. It is our endeavor in making the within motion to

avoid the imposition upon this Court of the wholly unneces-

sary burden of examining and considering 4 record of

unusual and extreme length, in view of our firm conviction

flectually present the entire question under review

that the inclusion of the entire record can serve no useful

Petitioner's counsel, furthermore, are cognizant

of this Court's disapproval of lengthy records containing

extraneous matter, to which utteranee wa» given iD Texas

Pacific R. Co. ¥- Leatherwood, 20 U. S. 478, at page 482.

& That the expense to petitioner, if required to print

the entire record, would be so burdensome, as to preclude

him from appearing before this Court and that he would

be thereby disenfranchised from his constitutional! rights,

after carrying on this litigation for 4 period of thirteen

years, at a 4cemendous personal expense.

9, On May 31, 1938, counsel for petitioner, practicing 12

the City of New York, visited the offices of counsel for

respondent at Columbus, Obie, and attempted to arrange

for a stipulation for the printing of the material portions

of the record, mentioning the items to be included therein

as follows: The pleading= in the Ohio action, motion tv

strike out defenses therein, the minutes of the trial in Obie,

the exhibits offered thereat, excluding, however, the rec

ords on appeal used in the courts of the State of New York,

the judgments and opinion rendered in Qhio, the notice>

of appeal and the motion- relative there’o, petitioner

requests to the Qbio trial court to make certain finding-.

together with the trial court’> rulings thereon and the

pleadings and fina! judgment 1 the Supreme Court of

the State of New York. At that time respondent = counse!

suggested other and additional items to be included in the

record by stipulation, but did not agree definitely to enter

20

0¢ included, together with the order made in the State of

New York granting a second trial after judgment of rever.

of the State of New York for the first time. Ax a basis

for possible stipulation with respect to abbreviating the

Printed record herein to its material portions, counse! for

petitioner agreed to include whatever might be desired by

counsel for respondent and filed a Praecipe with the clerk

of the Supreme Court of Ohio on June 1, 1938, which

Praecipe embodied the items Originally suggested by peti.

tioner’s counsel, the items suggested by respondent's coun-

sel, as well as certain other items made necessary by rea.

son of the suggestions made by respondent's counsel,

Petitioner's connsel caused a copy of said praecipe to be

served upon counse! for respondent on June 1, 1938, and

counsel for petitioner likewise Prepared a proposed stipu-

lation, embodying the items set forth in said praecipe, to

be used for the Purpose of Providing an abbreviated rec.

ord herein. On June 8, 1938, counsel for petitioner were

advised by their correspondent at Columbus, Ohio, that

word had been received, in Writing, from counsel! for re

spondent that the entire record should be filed herein: and

counsel for respondent disregarded the Procedure whereb;

Proper stipulation may obviate the necessity for printing

an entire record. In view of the failure of respondent's

“ounsel to stipulate for an abbreviated record herein, coun

sel for petitioner arrived at Columbus, Ohio, on June 10,

1938, for the Purpose of Preparing and filing a praecipe

with the clerk of the Supreme Court of Ohio, calling for

for respondent for the Purpose of making further effort

with respect to entering into an “ppropriate stipulation

21

herein, but he was informed that respondent’s counsel was

notin Columbus on said day and that he was not expected

to return until June 13, 1938. Under the circumstances and

by reason of the lapse of time, petitioner herein found it

necessary to proceed in accordance with this motion to

print an abbreviated record.

Counsel for petitioner believes that in the foregoing has

heen listed every portion of the record that is, in any man-

ner whatsoever, material to consideration of the constitu-

tional question raised herein and your moving party makes

no dbjeetion to the inclusion, in the part of the record to

be printed, of any other portion of the record shown, or

found by this Court, to be material to the determination

of the constitutional question.

Respectfully submitted,

Tuomas I. SHenripax,

Aaron Frank,

Counsel for Petitwner.

(6552)

= = —

jo - Ss.

SUPREME COURT OF THE UNITED STATES.

No. 188.—GcrTosrr Term. 1938.

Edward H. Titus, Petitioner, )}On Writ of Certiorari to the

vs. Supreme Court of the State

Lou C. Wallick. of Ohio.

[February 27, 1939.]

Mr. Justice Stone delivered the opinion of the Court.

The question for decision is whether the Supreme Court of Ohio,

by denying recovery upon a judgment procured by petitioner

against respondent in the courts of New York, has failed to accord

to the New York judgment the full faith and credit which Article

IV. §1 of the Constitution commands.

Petitioner brought the present suit against respondent in the

Ohio Court of Common Pleas upon a judgment recovered by pe-

titioner against respondent in the Supreme Court of New York on

May 1, 1934. Transcript of the New York judgment for $389,103,

duly authenticated in conformity to the Act of Congress, R. S. § 905,

28 U.S. C. § 687, was filed with the petition in the Ohio court.

Defenses interposed by respondent, so far as now material, were

that petitioner was not the real party in interest in the Ohie suit

and that che judgment had been procured in New York by fraud

on the court and on respondent, in that petitioner was not the real

party in interest entitled to assert the claim litigated in that suit

4s required by § 210 of the New York Civil Practice Act, and that

petitioner, in procuring the judgment, suppressed and withheld

that fact from respondent and the New Yo k courts.

The Court of Common Pleas, after a t 1al without a jury, sus-

tained these defenses and gave judgment for respondent, which the

hio Court of Appeals for Franklin County affirmed, with an opin-

ion-in which it ruled that the judgment sustaining the de-

fenses did not deny the New York judgment the full faith and credit

required by the Constitution. Appeal to the Supreme Court of

Ohio assigning as error the denial of full faith and eredit to the

New York judgment was dismissed on the ground that the case

aye Siete ah 0

HE fF rata neil fi!

HT indict lel HT Ht

Paid gusiise estat aan all;

weeguet el leiaea le

rece cieUigaet gd el ae

itt hers bit: bore ole BH

Titus ve. Wallick. 3

rhe by ite terms as an “‘ Agreement", bears date December 1,

2, prior to the euit brought by petitioner against respondent in

Sew York. It recites that the earlier assignment was made upon an

wu agreement that Walter Titus was to ‘‘ use any funds that might

» derived”’ from the elaim to the two hundred and fifty shares of

Gut pay certain indebtedness of petitioner and that petitioner

‘Webs to institute an action against’’ respondent ‘to recover aaid

euk.” It states that Walter Titus ‘'does hereby sell, assign, trans

ir and eet over’’ to petitioner *’all his right, tithe and intereat”’ in

te date and appointa petitioner hie attorney to collect the claim.

farther rea@ion an agreement between the awairnor and petitioner

et the latter will turn over the proceeds of the claim to the a.

mer, who agrees, after paying the expenses of collection, to pay

ow eaehalf of the net recovery to petitioner's wife, tw discharge

tee indebtedness of petitioner, and to pay the balance to him

The Ohio Court of Appeale disagreed with the conclusion of the

Wal court that petitioner's affidavit in the London Wallick suit

ouimively established that petitioner had no interest in the

tam prosecuted against respondent in New York. It held that

hs interest was to be ascertained by examination of the reassien-

arnt from Walter Titus to petitioner, But interpreting that docu.

ment in the light of the New York law it concluded that the re

igement was no more than « power of attorney authorizing pe-

timer to collect the claim in behalf of Walter Titus and did not

Gertie & an amignment to vest any right or interest in petitioner

tn which he could maintain eult in the New York Courts. Upon

Gaminastion of petitioner's affidavit indicating, a the court thought,

Get petitioner had construed the reassignment correctly as not

Weuterring to him any right or interest in the claim against re

Wendent. it accepted the affidavit as evidence that petitioner had

irendulentiy proaecuted the New York suit agains! reapondent with

taowledge that he was not entitled to maintain it. The court accord.

ugly sfirmed the judgment of the trial court denying recovery, on

te ground that the New York judgment, impeachable there for the

Sreed, was to the same extent impeachable in Ohio

By K. &. § 905, 28 U. B.C. § 687, enacted under authority of the

fell faith and credit clause, Article IV, {1 of the Constitution,

the duly attested records of the judgments of a state are entitled to

“euth (eith and credit’ . . in every court within the United

= S & te

ae ee A, i ahh

ee

itetion and « statute of

ence of the federal right

in New York and

rulings on these points by the Ohio

Adams + , MUS

Titus va. Wallick 5

thes in ection. with exceptions not now material, are made

et kereot tere oe Section 210 of the New York Civil

Putin Act provides “‘Every action must be prosecuted in the

um of the real party in interest. exeept that . . . 4 trustee

¢eapres trot... may sue without joining with him

ie person for whose benefit the action is prosecuted.” By re-

patel decisions of the highest court of the State of New York it

tw long been aettie! that under thee eeetions any form of amsign-

ant which purports to amign or transfer a chose in action

sles upon the transferee such title or ownership as will

adie him to sue upon it. This ix trae even though the assign-

wat is for the purpose of nit only and the transferee is obligated

wenwant for the proceeds of eait to his awienor, Allen v. Brown,

aS ¥. 228. Meeker +. Claghore, 44 N.Y. 349; Sheridan v.

lew, @ N.Y. 9: McCauley +. Georgia Railroad Bank, 239

5 V.S14; Meyers ¥. Credit Lyonnais, 2 N. Y. 399; Banca C. 1.

lout Co. x. Clarkson, 274 NS. ¥. ©, 74; Brown +. Powers, 53

gp. Div, (ON. ¥.) 251; Birdeall ©. Reed, 14% App. Div. (N. ¥.) 46.

Here the ausignment, which in plain terms purported ‘‘to sell,

uuigs, transfer and set over”’ the chow in action to petitioner,

tw eaficient under the New York statutes and authorities to give

Mitioner dominion over the claim for purposes of suit. In that

fupect its legal effect was not curtailed by the recital that the

tigement was for purposes of exit and that its proceeds were to

ie termed over or accounted for to another. The Ohio court,

jlacing emphasic on the presence of the power of attorney in the

enigement. dieregarded the words of seignment and gave to the

intrement the more restricted effect of « power of attorney. While

§ power of attorney to auc, standing alone, does not under the New

Tork law operate ax an awienment to vest the attorney with such

title or interest a« will enable him to maintain the suit in bis own

tome, Spencer ¥. Standard Corporation, 277 N. Y. 479, the addi-

ties of the power to petitioner's amwignment did not deprive it of

it force and character as an awizoment. The use of the power

attorney, once for historical reasons the indispensable adjunct

every emienment of « chow in action, Ames, Lectures on Legal

Bitory. 210 cf seq, Williston on Contracts, Rev. Ed. §§ 195, 405,

Gd net render the amignment ineffective merely because, oy virtue

Of the statate, its presence is no longer necessary.

*(T) *o ‘smeT *TOsmOD) aeT kyagdosd Teaoszed

tuly emignable by the New York statate Cees (1) ow

~

Judgment to which London Wallick was asserting a claim, thone

hin, naneee did not impair the previous assignes,

him or deprive hin of the authority,

seignment, 10 maintain the suit Whether petitioner's transse,

ch a Proceeds does nei appear, but in any case thee

does not subject the Judgment to

peachment by the Judgment debtor Matter of Holden, T1¥

court to decide. Huntington +. Attril, 146 U. & 657, 684; Kenss

City Southern Ry. ©. Albers Communon Co., 223 U. &. 573,

Henney ¥. Supreme Lodge, 252 U. & 411, 415. So fer os the soar

prescated. putt courts, thet fact ie irrelevant t0 amy lane oe

Presented The suit in Ohio was not upon the amigned enor e

Titus va. Wallick. 7

tim but upon the judgment of which petitioner is the record

aur. The suit upon it is upon a different cause of action from

tt merged in the judgment. Milwaukee County ¥. White Co,

ST. 8 268, 275. It is the judgment and not the cause of action

tich gave rise to it for whieh credit is claimed, and the consti-

mal mandate requires credit to be given to a money judgment

sadered on a civil cause of action in another state, even though the

frum would have been under no duty to entertain the suit on

ttieh the judgment was founded. Christmas v. Russell, 5 Wall.

%; Fauntleroy ¥. Lum, 210 U. 8. 230; Roche v. McDonald, 275

1849; Miwouker County v. White Co., supra, 277.

Even though the Ohio court might have declined to recognize

-itioner an the proper party to sue upon the assigned claim, a suit

a 8 judgment of another state, by virtue of the Constitution,

mands upon a different footing. The Ohio court is not free to

tihbeld from petitioner, the reeord owner of a judgment valid and

alereesble by him in New York, the full benefit of the constita-

Smal command that the judgment shall receive in the courts of

(hie such faith and credit as it is entitled to receive in New York.

4 gate which may not constitutionally refuse to open its courts

*s suit on a judgment of another state because of the nature of

the cause of action merged in the judgment, Kenney ¥. Supreme

ledge, supra, 415, obviously cannot, by the adoption of a par-

tealer rule of liability or of procedure, exclude from its courts 4

"A on the judgment.

Reversed.

A true cop;

Tet

Clerk, Supreme Court ris