Graver v. Guardian Trust Co.

163 N.E. 502, 29 Ohio App. 233, 6 Ohio Law. Abs. 251, 1928 Ohio App. LEXIS 531

• Court: Ohio Court of Appeals
• Decided: March 5, 1928
• Status: Published

Opinion

OPINION OF COURT.

The following is taken, verbatim, from the opinion.

LEVINE, J.

The case of American Insurance Union v. Read, 24 Oh. Ap. 150, bears upon the question, and we are of the opinion that proceedings in aid under Section 11772 GC., were not intended as a civil action but as merely supplemental to and incidental to the judgment by way of providing a summary method for the satisfaction of same.

It follows therefore that garnishees in an aid of execution are not parties to the proceedings, and are not bound by the findings of the referee. They may refuse to comply with the order issued upon the finding of the referee, and the only remedy against them for failure to comply is a civil action, in which civil action they are entitled to their day in court and may set up such matter as will constitute a defense to the action.

In our opinion, therefore, there was no error committed by the trial court in permitting the Guardian Trust Co., to interpose the defense that the certificates were not owned by the judgment debtor, for the reason that the proceedings in aid of execution which were tried before a referee and approved by the court did not amount to an adjudication of that question.

We shall now consider the only other assignment . of error which, in our opinion, is material. Namely, that the court erred in failing to comply with the requirements of the Code which makes it mandatory upon the court to state in writing the conclusions of fact separately from the conclusions of law when the same is requested by either of the parties. This request was made on Sept. 2, 1927. On Oct. 15, 1927, the Municipal Court made the following entry: “Finding for the defendant, plaintiff excepts.” On Oct. 17, 1927, plaintiff filed his motion for a new trial in -which motion one of the grounds was as follows: “That the trial court failed to state in writing the conclusions of fact found separately from the conclusions of law as required by the counsel for plaintiff.” On Oct. 15, 1927, plaintiff’s motion for a new trial was overruled to which exception was duly noted. On Oct. 26, 1927, plaintiff filed his bill of exceptions, notice ■thereof was duly served on counsel for defend-, ant; no objection was filed thereto. On Nov. 7, 1927, said bill of exceptions was duly transmitted to the judge of said court. On Nov. 12, 1927, the said bill of exceptions was duly signed and returned to the clerk of said court. On Nov. 23, 1927, the Municipal Court of Cleveland permitted the attorney for defendant to prepare and submit to the court, a journal entry purporting to be a compliance with the requests made by counsel for plaintiff on Sept. 2,. 1927, towit, that the “Court state in writing the conclusions of fact, found separately from the conclusions of law” which request was made at the conclusion- of the trial on said date.

In the case of Cleveland Produce Co. v. Dennert, 104 O. S. R. 149, this section is construed and the study of that case is helpful in the determination of the question before us. The syllabus of said case reads as follows:

“The provisions of Section 11470 GC., confer & substantial right and are mandatory and where questions of fact are tried by the court without intervention of a jury, and one of the parties, with a view of excepting to the court’s decision upon questions of law involved in the trial, requests a separate written statement of the conclusions of fact, and, as an aid to the court, submits special written interrogatories for such purpose, it is the duty of the court, as a part of its judgment, to make answer to all interrogatories involving the ultimate facts of the controversy, and to all involving probative facts from which the ultimate facts can be inferred as a matter of law, and its failure to do so is reversible error.”

In the case at bar, we are called upon to determine whether journal entry, permitted to be filed on Nov. 23, 1927, wherein the court stated, in writing, the conclusions of fact found separately from the conclusions of law, is a compliance with the provisions of the General Code relating to that subject.

In the opinion in Produce Co. v. Dennert, supra, on page 154, the court said:

“We are mindful that in the case of Oxford Tp. v. Columbia, 38 OS. 87, the court made the following declarations, as found in the syllabus. ‘Where a party requests that the court state separately the conclusions of law and fact under the civil code, 280 (Rev. Stat. 5205) and the request is not complied with, a judgment against such party should be .reversed, unless it appear from the record that he was not. prejudiced by the refusal.’

“Counsel for the defendant in error stress the last few words above quoted, and insist that in the instant case plaintiff in error had not been prejudiced. It is apparent that by the use of that language the court only had in mind the language of the statute providing for new trial. (Sec. 11576, GC.), in which it is particularly stated, in the first sentence of the section, that new trials shall only be granted for ‘Causes effecting materially his substantial rights.’ The trial court should never grant a new trial, neither should a reviewing court ever reverse, unless there has been some deprivation of a substantial right. We are of the opinion, however, that Section 11470 GC., does confer a substantial right and that a denial of that right constitutes such error as should cause this court to reverse the judgment, unless it can be determined by this court, without weighing the evidence, that plaintiff in error has not been prejudiced. Any other view of this section would render its provisions a dead letter.” '

Holding as we do, the judgment of the Municipal Court will therefore be reversed, and the case remanded for further proceedings, according to law, with instructions that the trial court make its entry of judgment in compliance with the General Code, towit:

“The trial court shall ’ state in writing, the conclusions of fact found separately from the conclusions of • law, as requested by counsel for plaintiff.”

(Sullivan, PJ. and Vickery, J., concur.)