Cieslikowski v. Radecki

135 N.E.2d 433, 100 Ohio App. 46, 59 Ohio Op. 476, 1955 Ohio App. LEXIS 562

• Court: Ohio Court of Appeals
• Decided: June 20, 1955
• Docket: 4863
• Status: Published

Opinions

Fess, J.

This is an appeal on questions of law from an order of the Common Pleas Court vacating a temporary injunction.

In her petition, plaintiff alleges that in October 1942 plaintiff and her husband obtained a loan in the sum of $2,500 secured by a mortgage upon the residence property owned by the husband; that the mortgage indebtedness was discharged by plaintiff and her husband in October 1952; that on December 18, 1942, her husband conveyed the premises to defendants (who aré his children by a former marriage) without consideration; that this plaintiff joined in the conveyance upon the representation that her husband was to have a life estate in the premises and that this plaintiff would be permitted to live in the premises for one year after the death of her husband; that, relying upon such representations, plaintiff conveyed her interest to the defendants ; that her husband is still alive and, on September 29, 1952, he conveyed to the defendants by quitclaim deed all his interest in the premises, without the knowledge and consent of plaintiff; that on November 30, 1954, a landlord’s complaint was filed by the defendants in the Municipal Court of Toledo, and at the hearing thereon plaintiff discovered that the representations made to her in December 1942, were false; “and that said facts were known by the defendants to be false and were made by them with intent to deceive and defraud this plaintiff of her rights in her husband’s real estate.”

Plaintiff alleges further that on December 21, 1954, judgment for possession of the premises was rendered in favor of the defendants and against plaintiff; that a writ of possession was issued to the bailiff of the Municipal Court; and that plaintiff fears that the bailiff will execute such writ unless restrained by this court. Plaintiff prays that the conveyances be declared null and void; that the property be declared to be the property of her husband; that the bailiff be restrained from executing the writ; and for such other relief as may be just, equitable and proper. Plaintiff’s husband was not made a party to the action.

The injunction was granted as prayed for. Thereafter, defendants moved to vacate and set aside the injunction and, upon hearing, it was ordered that the injunction as to the bailiff be vacated but that the defendants, except the bailiff, be enjoined from transferring the premises.

It is apparent that plaintiff is not proceeding upon the alleged representation that she would remain in the premises for one year after her husband’s death, but that she seeks to set aside the two deeds on the ground of fraud in the making of such representation. Upon obtaining the relief sought, plaintiff would have only an inchoate right of dower in the premises. Having no possessory right therein, she is not entitled to an injunction against the execution of the writ of possession.

Furthermore, the Common Pleas Court, in granting, refusing or vacating a temporary injunction, exercises its sound discretion. No bill of exceptions was filed incident to the appeal. A transcript of the argument between court and counsel upon the motion to vacate has been filed, which has no efficacy in the determination of the appeal. Therefore, there is nothing in the record disclosing an abuse of discretion or other error prejudicial to the plaintiff.

The court, in its journal entry, found that “the plaintiff has an adequate remedy at law and the defendants’ motion to vacate and set aside the restraining order of this court is well taken.” In the opinion of a majority of the court, under the allegations of the petition, the plaintiff is not entitled, as a matter of law, to the injunction against the bailiff of the Municipal Court.

The judgment of the Common Pleas Court vacating the injunction is affirmed.

Judgment affirmed.

Deeds, J., concurs.