Ditco I, Inc. v. Gibson

484 N.E.2d 219, 20 Ohio App. 3d 39, 20 Ohio B. 41, 1984 Ohio App. LEXIS 12531

• Court: Ohio Court of Appeals
• Decided: August 2, 1984
• Docket: 84AP-308
• Status: Published

Opinions

Strausbaugh, J.

This is an appeal by third-party claimant, Daniel D. Crites, from a judgment of the municipal court denying his certificate of title, which entry reads as follows:

“This cause came on to be heard on the third party claimant, Daniel D. Crites’ motion for setting aside of the execution against a van alleged by plaintiff to belong to the defendant and alleged by the claimant to have been sold to him by the defendant, prior to the execution having been levied.

“It is undisputed in the pleadings of both parties that the van was attached on October 16, 1983 and that though an alleged transfer of title may have occurred on August 1, 1983, between the defendant and the claimant, a new certificate of title to the van in the name of the claimant was not issued until November 1,1983. It is further undisputed by the parties that if the defendant was the owner of the van at the time it was attached, a subsequent transfer of ownership is invalid.

“Despite claimant’s argument that some courts of appeals have created an exception to the plain language of O.R.C. 4505.04, regarding the determination of ownership of motor vehicles, in the case at bar, this Court finds the holding in Brewer v. DeCant, 167 OS 411 [5 O.O.2d 60] (1958) to be controlling. In paragraph two of the syllabus it is stated:

“ ‘Under the Ohio Certificate of Title Act, a change in ownership of an automobile is not consummated until a certificate of title is issued in the name of the purchaser.’ Brewer v. DeCant, 167 OS 411 [5 O.O.2d 60] (1958).

“Therefore, as a matter of law, because claimant did not have a certificate of title issued in his name on the date the execution was levied against the van, he cannot be considered the owner on that date and he cannot prevail in this action.

“Final judgment is rendered for defendant on the merits and costs.”

Claimant Crites sets forth the following single assignment of error:

“The Court below erred in finding that because claimant did not have a certificate of title issued in his name on the date the execution was levied against the van, he cannot be considered the owner on that date.”

We overrule claimant’s assignment of error based upon the law as set forth by the Supreme Court in paragraph two of the syllabus in Brewer v. DeCant (1958), 167 Ohio St. 411 [5 O.O.2d 60], which reads:

“Under the Ohio Certificate of Title Act, a change in ownership of an automobile is not consummated until a certificate of title is issued in the name of the purchaser.”

We recognize that this opinion may be in conflict with the case of Stackhouse Oldsmobile, Inc. v. Petry (1967), 12 Ohio App. 2d 68 [41 O.O.2d 122], rendered by the Court of Appeals for Mahoning County, and therefore would consider a motion to certify the record to the Supreme Court for review and final determination upon proper motion.

Claimant’s single assignment of error is overruled, and the judgment of the trial court is affirmed.

Judgment affirmed.

Stillman, J., concurs. Whiteside, J., dissents. Stillman, J., retired, of the Eighth Appellate District, was assigned to active duty under authority of Section 6(C), Article IY, Constitution.