Lemert v. Lemert

72 Ohio St. (N.S.) 364

• Court: Ohio Supreme Court
• Decided: May 2, 1905
• Docket: No. 8711
• Status: Published

Opinion

By the Court.

1. Was the decree for alimony discharged by the final discharge of the plaintiff in the bankruptcy proceedings, the claim not having been proven therein nor any' dividend paid thereon? The circuit court held that it was not discharged because the decree for alimony was not a provable claim in the bankruptcy proceeding. We think this conclusion was sound both upon reason and upon authority. Audubon v. Schufeldt, 181 U. S., 575; Dunbar v. Dunbar, 190 U. S., 340; Wetmore v. Markoe, 25 S. C. R., 172.

2. Did the decree for alimony become dormant because no execution had been sued out thereon within five years ? The circuit court answered this question in the negative. In this conclusion, also, we think the court was right. A decree for alimony is not a judgment within the meaning of section -5380, Revised Statutes, which provides that a judgment on which execution has not issued for five years shall become dormant and shall cease to operate as a lien on real estate, nor is it a judgment or finding, within the meaning of section 5367, which provides for the revivor of a dormant judgment, or a finding for money in any equitable proceeding.

Judgment affirmed.

Davis, C. J., Shauck, Price, Crew, Summers and Spear, JJ., concur.