Hollywood Television Service, Inc. v. Picture Waves, Inc.

136 N.E.2d 621, 72 Ohio Law. Abs. 581, 1954 Ohio App. LEXIS 1267

• Court: Ohio Court of Appeals
• Decided: March 2, 1954
• Docket: No. 5052
• Status: Published

Opinion

OPINION

By THE COURT.

This is a motion to dismiss the appeal for the reason that the same is not directed to a final order. The pertinent facts disclose that on November 30, 1953, Peter Vacca was appointed Receiver for the defendant, Picture Waves, Inc.; that on the same day the Receiver filed an application with the Court and in response to the same the following order was made:

“Upon the application of the receiver Peter Vacca, and for good cause shown, the court hereby orders that Edward Lamb, of Toledo, Ohio, be and he is hereby made a party defendant to these proceedings; and said Edward Lamb is hereby ordered to deliver over to the receiver the books and records of the defendant, a dissolved corporation; and said Edward Lamb is hereby ordered to deliver over to the receiver the $51,123.00 cash in banks and the accounts receivable of face value of $21,800.00 and of claim value of $10,900.00, together with an appropriate assignment of said accounts receivable, all of which assets are in his possession or under his control, held for the benefit of creditors of the defendant; and said Edward Lamb is hereby restrained from in any manner disposing of said assets other than to the receiver, or doing anything in any manner interfering with said assets or the receiver’s right to take immediate possession of said assets or the receiver’s right to collect the accounts receivable which compromise part of said assets; and the Clerk of this court is instructed to issue a certified copy of the foregoing orders of the court to the Sheriff of Lucas County, Ohio, for service upon the said Edward Lamb.”

On the 7th day of December, 1953, Lamb filed the following motion, all of which was overruled:

“Now comes Edward Lamb of Toledo, Ohio and appearing solely for the purpose of this motion and for no other purpose and expressly disclaiming any intention to enter his general appearance herein, moves the court for an order vacating and setting aside the order made by this court on the 30th day of November, 1953, (1) making him a party defendant herein, (2) ordering him to deliver to the receiver named herein certain alleged assets, and (3) restraining him from disposing of said alleged assets, for the reason, among others, that no notice of the filing of the application for said order or of the time and place of the hearing thereof, was given to him before said order was made.”

The notice of appeal is directed to the order overruling the aforesaid motion. The action is one concerning the winding up of the affairs of a dissolved corporation and is a special proceeding. Sec. 8623-95 GC. It will be noted that a part of the relief sought was the dissolution of a temporary restraining order. Such an order was held by this Court to be one affecting a substantial right in a special proceeding and is an appealable order. See Black v. Poling, 45 Abs 298.

The motion will be overruled.

WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.