American Ins. Union v. Read

157 N.E. 315, 24 Ohio App. 192, 5 Ohio Law. Abs. 297, 1927 Ohio App. LEXIS 548

Opinion

PARDEE, J.

The Akron Chapter No. 300 of the American Insurance Union obtained a judgment against Loyd R. Read in the Summit Common Pleas, and an execution on said judgment was returned unsatisfied. On the return of the execution, the Union filed a motion asking for an order requiring defendant to appear and answer concerning his property. The order was made and the court found that defendant was not the owner of any property subject to execution.

The plaintiff perfected an appeal and defendant filed a motion in the Court of Appeals asking to have the appeal dismissed for the reason that the proceeding instituted in the Common Pleas Court is not appealable. The Court of Appeals held:

1. Only those proceedings which were known in chancery before the adoption of the civil code are appealable. Sec. 6, Art. IV. Ohio Const.

2. The defendant claims that the proceeding instituted was one in aid of execution provided by statute, and is in no way similar to the original chancery proceeding known as a bill of discovery, as contended by plaintiff.

3. While the proceeding in aid of execution provided by 11768 GC. et. seq. accomplished to a large extent that which had theretofore been accomplished by a bill of discovery, it was not the same thing as a bill of discovery'; it was a summary proceeding after judgment and was intended to be a special statutory one, unknown to the law prior thereto, and it was not intended to take the place of a civil action under the code in the nature of a bill of discovery.

4. The proceeding started in the lower court was one in aid of execution and not a chancery bill of discovery under the code oi civil procedure, and is not appealable.

Motion to dismiss appeal sustained.

(Washburn, PJ., and Punk, J., concur.)