O'Donnell v. Armstrong

33 Ohio C.C. Dec. 569, 22 Ohio C.C. (n.s.) 280, 1909 Ohio Misc. LEXIS 459

• Court: Cuyahoga Circuit Court
• Decided: May 24, 1909
• Status: Published

Opinion

HENRY, J.

Plaintiff in error sued George K. Closs before a justice of the peace- and obtained judgment; whereupon Closs appealed. The defendant in error meanwhile sued the plaintiff in error in the court of common pleas and garnisheed Closs, who subsequently was adjudged a bankrupt. Thereupon the defendant in error intervened in the former case and filed an answer and cross-petition in which he set up his garnishment lien on the fund recoverable in that action.

The plaintiff in error recovered judgment against the bankrupt garnishee, and the cross-petitioner, defendant in error here, was awarded the relief he sought by order providing “that if the defendant Closs, or any one in his behalf pays the judgment rendered in the case, the same shall be paid by him to the clerk of this court.”

Error is assigned upon the phrase “or any one in his behalf.” The manifest object of this phrase is to hold the appeal bond, in view of the garnishee’s bankruptcy. The plaintiff in error insists that the cross-petitioner should have garnisheed the surety on the appeal bond instead of undertaking to intervene in the action below and subject the bond to the payment of his claim.

We fail to see any objection to the course pursued. The defendant by virtue of his garnishment process had acquired an interest in the very chose in action which was the subject matter of the litigation between the original parties to the action below, and he therefore had a right to become a party defendant and set up his claim.

Upon the bankruptcy claim of the garnishee, he was,, upon familiar principles, properly subrogated to the right of the bankrupt garnishee’s creditor in the security of the appeal bond.

Judgment affirmed.

Marvin, J., concurs. Winch, J., not sitting.