Cook v. Mozer

140 N.E. 590, 1 Ohio Law. Abs. 845, 108 Ohio St. 30, 1923 Ohio LEXIS 250

Opinion

WANAMAKER, J.

Epitomized Opinion

Rose Mozer filed suit for divorce and alimony in July, 1920, stating that certain real estate standing-in the name of her husband, Charles Mozer, was really only held in trust by him: and that she was the equitable owner, and asking that title be transferred to her. The Common Pleas entered a decree, Jan. 8, 1921, granting her a divorce and transferring-said real estate to her. On Sept. 23, 1920, while the divorce case was pending, one Cook took judgment on a cognovit note against Charles Mozer, and caused the sheriff to levy on the aforesaid real estate.

The sheriff later advertised said real tstate for sale on Jan. 22, 1921. On Jan. 21, 1921, Rose' Mozer filed this, suit in the Common Pleas to enjoin the sheriff from -selling said property. Defendant Cook filed an answer denying that Rose Mozer was the equitable owner of said real estate when his judgment was taken- Rose Mozer in reply aljleged that Cook colluded with Charles Mozer to obtain the judgment lien on her property and that at the time of that judgment Cook knew from her petition in the divorce case filed in July, 1920, that she was thjfl owner of the property, -and invoked the doctrine <^B lis pendens- Cook made a motion for judgment oiB the pleadings, which was sustained by the CommorB Pleas- Rose Mozer appealed to the Court of Ap-B peals, which found for her and granted the injunc-B tion- Cook prosecuted error. Held: B

An action for divorce and alimony, especially* where property is claimed and- is described in thJB pleadings, presents a good case for the doctrine cl^j lis pendens. That doctrine was properly applied to this case by the Court of Appeals and their judg- ] ment is confirmjed.