Lydrickson v. Brenner

33 Ohio C.C. Dec. 345, 21 Ohio C.C. (n.s.) 289, 1906 Ohio Misc. LEXIS 331

• Court: Cuyahoga Circuit Court
• Decided: January 12, 1906
• Status: Published

Opinion

EENRY, J.

This proceeding in error is prosecuted to reverse an order of the court of common pleas of Cuyahoga county granting a motion to dissolve a temporary restraining order allowed in an action to enjoin the collection of a judgment recovered by Brenner against Lydrickson before a justice of the peace. The motion to dissolve was heard on the petition alone, no affidavits or other evidence being offered. The action is still pending below.

We are in doubt whether the allowance, of this motion is reviewable on error before final judgment in the court below.

The superior court of Cincinnati in general term has held that the dissolution of a temporary restraining order is not thus reviewable. Cincinnati College v. Cincinnati, 1 C. S. C. 255.

The circuit court of Hamilton county has taken the opposite view. Chicago, St. L. & P. Ry. v. Hamilton, 2 Circ. Dec. 259 (3 R. 455).

The Supreme Court apparently, still regards the question as an open one. Taylor v. Standard Brick Co., 66 Ohio St. 360, 366 [64 N. E. 428].

Inasmuch as we have reached a conclusion on the whole case which makes it practically unnecessary to decide this question, we prefer to rest our decision upon the merits of the controversy, remarking, however, that the remedy by appeal, under Sec. 5226 R. S. (Sec. 12224 G. C. et seq.), is not fraught with doubt, and may perhaps afford an exclusive method of reviewing orders of this character.

The summons in the primary case was not endorsed with the amount sued for, as required by See. 6475 R. S. (Sec. 10235 G. C. et seq.) but was in that respect- blank. It is claimed that it is therefore void under Sec. 602 R. S. (Sec. 1734 G. C.). “Void” and “voidable” are terms not always used with precision, even in statutes. It was said by Martin, J., in the case of Robbins v. Clemmens, 41 Ohio St. 285, 286-7, that in case of actual service “by copy, accompanied by defects, in the summons, or its copy, the judgment might be voidable only,” since the defendant “has an opportunity to appear and take advantage of the irregularity before, or after, judgment.” And it is claimed here that, inasmuch as there is a plain remedy at law, injunction will not lie. This is not true of void judgments. And in any event, whether the judgment here assailed be void, or as we think, merely voidable, there is this prerequisite to the maintenance of an action to enjoin its collection, viz: that a valid defense to the action be shown to exist. Greene v. Woodland Ave. & West Side St. Ry., 62 Ohio St. 67, 76 [56 N. E. 642].

Here the petition alleges that the plaintiff has such a defense, but it is not shown what that defense is. In the absence of other evidence on the hearing of the motion to dissolve the temporary restraining order, it was not error to grant such motion, and the order of the court of common pleas is therefore affirmed.

Marvin and Winch, JJ., concur.