King v. Snow

2 Disney (Ohio) 73

• Court: Ohio Superior Court, Cincinnati
• Decided: March 15, 1858
• Docket: No. 8,197
• Status: Published

Opinion

Gholson, J.

This action was brought upon an undertaking given in a case in the court of common pleas under a proeeedi ng in attachment. The undertaking was one authorized by section 199 of the code. The plaintiff in the common pleas has proceeded to judgment, has issued execution, has demanded the property mentioned in the undertaking, for the purpose of satisfying the execution. It has not been delivered nor its value paid on the execution, and he now brings an action on the undertaking in this court. Upon a demurrer the question arises whether it can be sustained.

It might be sufficient to dispose of this case to refer to a clause at the end of section 199, which shows that the undertaking is so subject to the control of the court in which it is taken, and that no other court can properly interfere. That clause clearly applies only to the court in which the action is brought. It falls, therefore, within the spirit of the decision made in general term as to suits on recognizauce, the amount of which the courts of common pleas may remit.

It may, however, be observed, that other sections of the code show that by the “judgment in the action” is not intended a payment directly to the plaintiff but under the order and direction of the court. This undertaking is unlike that under section 212, where the “judgment of the court” means a satisfaction of the plaintiff’s demand reduced to judgment. The undertaking under section 199 is to be construed by reference to sections 221 and 222. The property in the hands of a garnishee, like that in the hands of the sheriff is to be sold under an order of the court. An order, therefore, to the garnishee to deliver or pay, is the “judgment in the action,” to which the undertaking has reference.

The demurrer must be sustained.