Hopper v. Gallier

23 Ohio C.C. Dec. 154, 14 Ohio C.C. (n.s.) 519

• Court: Lucas Circuit Court
• Decided: December 23, 1911
• Status: Published

Opinion

RICHARDS, J.

The original action out of which this proceeding in error grows, was brought in justice’s court and was a proceeding in aid of execution. Upon motion filed by the defendant, the justice dismissed the proceedings in aid of execution. From this ruling, proceedings in error were prosecuted in court of common pleas where the judgment of the justice of the peace was affirmed. A bill of exceptions was taken before the justice but the bill does not purport to contain all of the evidence which was introduced.

The affidavit which was filed before the justice of the peace avers that upon July 26, 1910, the plaintiff in an action then pending before said-justice of the peace duly obtained a judgment against the aforesaid defendant in the sum of $30.27 and for costs therein taxed at $4, and that The Northwestern Ohio Bottle Company is liable to the judgment debtor in a sum of money which is now due to said judgment debtor and that said money is not exempt from execution or attachment.

The motion which was filed in the justice’s court by the defendant to release the money which is said to have been reached in the proceedings contains four grounds:

First, that the facts in the affidavit are false and that the affidavit is insufficient;' '

Second, that the defendant is a married man and the support of a family, resident in Ohio;

Third, that no demand was made upon the defendant for 10 per cent of his personal earnings; and

Fourth, that no summons or copy of the order issued by the justice has been served upon the defendant although a resident of Lucas county, Ohio.

By reason of the fact that the bill of exceptions does not purport to contain all of the evidence which was introduced before the justice of the peace, we are not advised as to the -basis of his decision except as recited in the docket entries made by him .which are before us.

It appears from the docket entries that the motion filed by the defendant was sustained upon the grounds that the affidavit was insufficient in law and that no demand had been made upon the defendant for 10 per cent of his wages. It does not appear at any place in -the record that the justice of the peace found that the' property sought to be reached by this proceeding was the personal earnings of the defendant nor that it was exempt from execution.

The contention made before .us relates to the question whether in the proceedings in aid of execution brought under Gen. Code 10436, a preliminary demand must be made and the fact of such demand inserted in the affidavit. It will be noted that the section to which reference has just been made is found in Chap. 11 of the General Code entitled 11 Proceedings in Aid of Execution.” The statute providing for the preliminary demand is Gen. Code 10272, and that section is found in Chap. 2 of the General.Code and under the subdivision headed “attachment.”

It is perfectly clear that the requirement that a. demand must be made in writing for an excess over and above 90 per cent of the personal earnings of a debtor has no application to a proceeding brought in aid of execution under Gen. Code 10436. The method of procedure contemplated in Chap. 11 is complete in and of itself, and no reason is apparent why the requirement for the preliminary demand which exists in certain cases where proceedings in attachment are brought, should have any application to the case at 'bar. The point has been so ruled by the court of common pleas of Columbiana county in Ammon v. Delaney, 21 Dec. 251 (11 N. S. 574).

It is clear from the facts contained in the case of Duffey v. Reardon, 70 Ohio St. 328 [71 N. E. Rep. 712], in which the Supreme Court affirmed the judgment of this court that an affidavit in all respects similar to the one in the case at bar was held to be sufficient. The affidavit contains every requirement set forth in Gen. Code 10436 and in our opinion is entirely sufficient. We do not, of .course, pass upon the question of whether the property reached is exempt from execution or attachment.

The judgments rendered by the common pleas court and the justice’s court will be reversed and the case remanded for further proceedings in accordance with this opinion.

Wildman and Kinkade, JJ., concur.