Eiffel Realty & Investment Co. v. Ohio Citizens Trust Co.

OPINION By CARPENTER, J. In 1922 plaintiff, The Eiffel Realty & Investment Company, as lessor, and defendant, The Pantheon Theatre Company, as lessee, entered into a ninety-nine year lease. Among other things the theatre company agreed to pay a monthly rental and the taxes on the leased premises. Later the theatre company mortgaged its leasehold estate, as it had a right to do, to The Ohio Savings Bank & Trust Company as trustees for bondholders. It has been succeeded by the defendant, The Ohio Citizens Trust Company as such trustee. Some time prior to 1932, the lessee failed to make punctual payments of the rent and taxes as provided in the lease, and a supplemental written agreement was made with reference thereto. By its terms that agreement ended September 1, 1933, and the relationship of the parties continued under the lease. Several times thereafter the lessee failed to pay rent and taxes at the time required by the lease, and, claiming to act under and in accordance with the forfeiture provisions in the lease, lessor served notices upon the lessee of such defaults and followed them with notices of its intention to terminate the lease and to re-enter the premises as stipulated in the lease, and demanded that the lessor surrender possession to it. This demand was not complied with, and the lessor brought this action in the Common Pleas Court under authority of the Uniform Declaratory Judgments Act, *563 §§12102-1 to 12102-16, GC, asking that court to declare, (a) the lease terminated, (b) that lessor had the right to re-enter the premises, and (c) that the lessee be ordered to surrender possession thereof. The answer admitted the lease, the supplemental agreement and the receipt of the notices from the lessor, but in effect pleaded that lessor had waived any right it may have had to forfeit the lessee’s term under the lease by acceptance of current rents and taxes after such claimed defaults. The matter was heard in the trial court without a jury, neither party demanding one. That court made the following etntry: “This 17th day of September, 1936, this eause coming on for hearing upon the pleadings and the evidence and the court being fully advised in the premises, finds that it should refuse to make any findings or to render or euter declaratory judgment or decree herein, and no such findings, declaratory judgment or decree are made.” Plaintiff filed a motion for a new trial which was overruled and it then filed a notice of appeal on questions of law and fact, which was duly perfected as such, and a bill of exceptions was also filed in due time. On the submission of this appeal, this court was of the opinion the cause was not a proper case for appeal on questions of law and fact, and, with the consent of all counsel, it was received as an appeal on questions of law. From an examination of the pleadings and the bill of exceptions it does not appear that any issue is raised as to the validity or construction of the lease. Its validity is admitted and insisted upon by the defendants. Its terms are clear and there is no dispute about them. That the lessor, the plaintiff, may elect to terminate the lease on certain defaults in payment of rent or taxes by the lessee and thereby work a forfeiture of the lease is not challenged. The sole question is whether the situation presented by the acts of the parties entitles the lessor to claim a forfeiture at this time and to re-enter and repossess the leased premises. In its opinion the trial court stated its reason for refusing a declaration to be that the plaintiff had full and complete remedies in either an action in forcible entry and detainer, or an action in ejectment, and therefore a declaratory judgment should not be entered. The first question which claims attention is whether the older and established remedies are full, complete and adequate to accomplish what plaintiff desires, if entitled to it. Plaintiff’s claim is that acting under the terms of the lease, it has terminated and ended it, and that it now wants possession of the property and the aid of the court to secure it. This is exactly the purpose of an action in ejectment, in which the Common Pleas Court has full power to consider and determine all the matters that are pleaded in this cause, and if adjudged in plaintiff’s favor, the coercive remedy is at hand to make the judgment effective. The enforcement feature of the ejectment process is more efficacious than the declaratory judgment could be. Should the court declare everything plaintiff prays for, and the lessee fail to vacate the premises, additional proceedings would be required to give effect to the declaration. §12102-8, GC. This raises the question whether a person having an adequate and complete remedy to accomplish the desired end can disregard it and ask for declaratory relic-f. In other words, is it an alternative to existing remedies which a plaintiff may elect, or is it supplementary to them? This question has not been considered in any reported cases in Ohio. Professor Borchard in his work, Declaratory Judgments, at page 147 et seq., and in a later article in 31 Michigan Law Review, 180, urges that the remedy is alternative to existing ones, and that the only limits to it are those to be found in the first section of file act. The Supreme Court of Alabama supports this view in two recent cases: Tuscaloosa County v Shamblin (1936, — Ala.,—, 169 So. 234, 236, and Teal v Mixon (1936), — Ala., —, 169 So. 477, 479. In Wollenberg v Tonningsen (1935), 8 Cal. App. (2d) 732, 48 P. (2d) 738, 741, the Court of Appeals of tha.t state categorically denied the claim that “declaratory relief will not lie when there is an available remedy in an ordinary action at law or in equity.” It does recognize “the court’s discretion to refuse that relief where it is not necessary or proper under the circumstances.” The cases on this subject are digested in a series of annotations in A.L.R. as follows: 12 A.L.R. 52, 75; 50 A.L.R. 42, 48; 68 A.L.R. 110, 119; 87 A.L.R. 1205, 1219; 101 A.L.R. 689. While the declaratory judgment has been sanctioned in England since 1852, it is spar *564 ingly used there, and a wide discretion is recognized in its application. Barraclough v Brown, L. R. (1897), A. C., 615, 623; 66 L.J., Q.B., N.S., 672. In nearly every state where the question has been decided, a declaration has been refused. In New York this has been the uniform rule, the leading case being James v Alderton Dock Yards, Ltd. (1931), 256 N. Y. 298, 305, 176 NE 401, 403. The court says: “The use of a declaratory judgment, while discretionary with the court, is nevertheless dependent upon facts and circumstances rendering it useful and necessary. The discretion must be exercised judiciously and with care. * * * It is usually unnecessary where a full and adequate remedy is already provided by another well-known form of action. The general purpose of the declaratory judgment is to serve some practical end in quieting or stabilizing an uncertain or disputed jural relation either as to present or prospective obligations.” This principle has been followed in subsequent decisions by the Court of Appeals and the Appellate Division of the Supreme Court of that state. In Cryan’s Estate, 301 Pa. 386, 152 A. 675, 71 A.L.R. 1417, 1423, that court said: “A prime purpose of the Declaratory Judgments Act is to render practical help in ending controversies which threaten litigation but have not reached a stage where other relief is immediately available, or where, under the attending facts, established forms of action will not immediately afford the relief given.” Following this in a recent case of City of Erie v Phillips (1936), 323 Pa. 557, 187 A. 203, 204, the court there said: “We have held that jurisdiction of a petition for declaratory judgment is not to be entertained where a statutory remedy has been provided for the case in hand.” In New Hampshire, the Supreme Court said: “The declaratory judgment act was designed to supply deficiencies in legal procedure which existed before the enactment of the statute. * * * It is not intended as a substitute for ample remedies in use before its adoption. To borrow the language of chancery, where there is another plain, adequate and complete remedy available, the statute cannot be invoked.” Lisbon Village v Town of Lisbon, 85 N. H. 173, 155 A. 252. To the same effect see Sheldon v Powell, 99 Fla. 782, 128 So. 258. In Miller v Siden, 259 Mich. 19, 242 NW 823, a plaintiff sought a declaratory judgment to obtain possession of a boiler. In dismissing, the court said in the syllabus: “1. Proper action by seller of boiler, who took chattel mortgage for purchase price, and who seeks to recover possession from one who claims to be owner free of mortgage is replevin. “2. Proceeding for declaratory judgment is not substitute or alternative for common-law actions.” From this decision Judge Potter dissented, but the cases he cites do not support his assertion that the declaratory judgment is an alternative remedy to older statutory procedure. New York, Michigan and Pennsylvania are followed by Indiana, in Brindley v Meara, ... Ind., ..., 198 NE 301, 101 A.L. R. 682. The foregoing cited cases are all that have come to our attention where the precise question has been considered and decided. If the issues here were turned around and the defendant lessee were asking the court to decide an actual controversy it had with the lessor, that it might conform its action in some respect to the judgment of the court and thereby preserve its relationship as a lawful tenant of the leased premises, a different question might be presented. Such was the situation in Sigal v Wise, 114 Conn. 298, 158 A. 891; Cohen v Rosen, 157 Va. 71, 160 SE 36; Carolina Light & Power Co. v Iseley, 203 N. C. 811, 167 SE 56. If the plaintiff in this action can require from the courts a declaration such as it seeks, it is hard to conceive of a party who, having a cause of action of any kind, large or small, against another, might not ask a court of record to enter a declaratory judgment defining his rights. Thereby we would have parallel remedies, in part at least, in every civil cause of action, even though the 'older remedies are satisfactory and their use well settled. This would also result in multiplicity of actions for, having secured such declaration, further proceedings would be necessary, as in the case at bar, to make the declaration of the court effective. §13102-8, GC. Such was not the intent of the Legislature when the declara *565 tory judgments law was enacted and the pi’ovisions for older remedies were not repealed. This law does have a useful purpose in supplying deficiencies in our practice, especially as it may aid persons to settle disputes and maintain legal relations. In this field it should be liberally construed and applied, as directed in §12102-12, GC. To this end the court is invested with a btoad judicial discretion. In this case the trial court was within its power in refusing a declaration, both reason and authority support it in so doing, and its judgment is affirmed. Judgment affirmed. LLOYD, J, concurs. TAYLOR, J, dissents.