Mentel v. L. H. McCammon Bros.

Ohio Circuit Courts

Mentel v. L. H. McCammon Bros.

13 Ohio C.C. 280

DecidedJanuary 15, 1897

StatusPublished

This text of 13 Ohio C.C. 280 (Mentel v. L. H. McCammon Bros.) is published on Counsel Stack Legal Research, covering Ohio Circuit Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Mentel v. L. H. McCammon Bros., 13 Ohio C.C. 280 (Ohio Super. Ct. 1897).

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Opinion

Swing, J.

We are of the opinion that the record in this case fairly shows that the co-defendant, Amiss, brought himself within the provisions of section 5441, Revised Statutes. It is true that the affidavit of Amiss is carelessly drawn, and that it does not show definitelyjwhat amount of property he is the owner of. But we think it should be taken for granted that he is not the owner of $500 of personal property by an amount equal to the amount claimed herein, to-wit, $29.

Neither does the record show that Amiss in terms selected this particular property for his exemption under this section; and yet this is what he was undertaking to do, and while not accurately done, we think it should be held that he did so select this property.

Wm. Hartley Pugh, for McOammon Bros. M. O. Lylcins, for Mentel.

The fact that the garnishee had paid the money into the justice’s court, who had paid the money over to Amiss pending the appeal (as being exempt from execution), does not affect the rights of the parties. It seems to us that the plaintiff below cannot be heard to say that because Amiss had received his money from the garnishee, he could no longer claim it as exempt. McCammon’s only right to have this money paid on the judgment was on the basis of its being the money of Amiss (who is indebted to McOammon). McOammon has no claim upon it; and if it is Amiss’ money, then he (Amiss) has the right to claim the exemption.

The court of common pleas having held a contrary view of the law, we think it was in error, and that its judgment should be reversed, and the cause remanded for further proceedings according to law.

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Swing, J.

We are of the opinion that the record in this case fairly shows that the co-defendant, Amiss, brought himself within the provisions of section 5441, Revised Statutes. It is true that the affidavit of Amiss is carelessly drawn, and that it does not show definitelyjwhat amount of property he is the owner of. But we think it should be taken for granted that he is not the owner of $500 of personal property by an amount equal to the amount claimed herein, to-wit, $29.

Neither does the record show that Amiss in terms selected this particular property for his exemption under this section; and yet this is what he was undertaking to do, and while not accurately done, we think it should be held that he did so select this property.

Wm. Hartley Pugh, for McOammon Bros. M. O. Lylcins, for Mentel.

The fact that the garnishee had paid the money into the justice’s court, who had paid the money over to Amiss pending the appeal (as being exempt from execution), does not affect the rights of the parties. It seems to us that the plaintiff below cannot be heard to say that because Amiss had received his money from the garnishee, he could no longer claim it as exempt. McCammon’s only right to have this money paid on the judgment was on the basis of its being the money of Amiss (who is indebted to McOammon). McOammon has no claim upon it; and if it is Amiss’ money, then he (Amiss) has the right to claim the exemption.

The court of common pleas having held a contrary view of the law, we think it was in error, and that its judgment should be reversed, and the cause remanded for further proceedings according to law.

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Bluebook (online)

13 Ohio C.C. 280, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mentel-v-l-h-mccammon-bros-ohiocirct-1897.