Levinson v. Jaskulek

155 N.E. 405, 23 Ohio App. 134, 5 Ohio Law. Abs. 83, 1926 Ohio App. LEXIS 360

• Court: Ohio Court of Appeals
• Decided: November 8, 1926
• Docket: 3011
• Status: Published

Opinion

HAMILTON, J.

It seems that Samuel Levinson, d.b.a. the Wyandotte Cigar Co., was indebted to Jasku-lek & Co. in the sum of $2494.69 for merchandise sold and delivered; and that at this time Levinson desired to transfer the business to Gus Jacobs and Wm. Sanning, and a written contract was entered into between the parties and acquiesced in by Jaskulek & Co., whereby the business was transferred and Jacobs & Sanning were to pay H. C. Bolsinger as trustee for Levinson’s creditors, $76.85 per week; that in default of four weekly payments the creditors were entitled to demand full payment and Levinson was not to be relieved of any of the debts.

Attorneys — Simeon M. Johnson for Levin-son; Cohen, Mack & Hurtig for Jaskulek; all of Cincinnati.

Some payments were made to the trustee and then followed a default of more than four weeks. Jaskulek filed a petition in the Hamilton Common Pleas asking to have a receiver appointed for the reason that Jacobs & San-ning had abandoned the business and that unless a receiver took charge, the property would become dissipated and diminished.

A receiver was appointed, but Levinson objected to the appointment and prosecuted error claiming there was no authority for the appointment under the facts and the law. The Court of Appeals held:

1. Levinson claims that Jaskulek et. al. were simply contract creditors without lien or title to the property and had no right to interfere with the debtor’s possession, by the appointment of a receiver.

2. Conceding this to be the general rule, it has no application to the instant case, for the facts, as stated in the petition, show Jas-kulek to have some interest in the contract oi sale of the property.

3. Jaskulek et were to receive so much per week out of the operation of the business and the trustee was appointed on behalf of the creditors to receive these payments.

4. The contract further provided that the creditors could demand payment in full from Levinson upon a default of four weeks.

5. The facts that the parties had abandoned the contract and the business and that the property would be dissipated arej sufficient facts to justify the court in appointing a receiver under 11894 subsection 1 GC.

Motion to stay proceeding overruled and judgment affirmed.

(Buchwalter, PJ., and Cushing, J., concur.)