Rempe & Son v. Ravens

1 Ohio Law Rep. 155, 68 Ohio St. (N.S.) 113

• Court: Ohio Supreme Court
• Decided: March 31, 1903
• Status: Published

Opinion

On February 3, 1897, the plaintiff in error commenced an action in attachment against the defendants in error, Henrietta Ravens' and Henry Ravens, her husband, before William MeFee, a justice of the peace in and for Columbia township, Hamilton county, Ohio, to recover the sum of $260 alleged to be due it on a certain promissory note executed by said Henrietta Ravens and Henry Ravens. In said suit the affidavit for attachment set forth and ■alleged as grounds of attachment and garnishment that:

“The said defendants are about' to convert their property, or a part thereof, into money with the intent to place it beyond the reach of their creditors; have property-Or rights of action which they have assigned, removed or disposed of, or is about to assign, remove or dispose of property, or 'a part' thereof, with intent to. defraud his creditors. Said affiant further makes oath and says he has good reason to and does believe that the Hartford Eire’ Insurance Co., etc., L. E. Guentral, agent, and A. W. Schell &' Co., agents and managers, have in their possession certain property, funds and credits, the property of said defendant's.”

And said affidavit contained the further 'averment, required by Section 6489, Revised Statutes, that “the property sought to be attached is not exempt from execution.” In said action garnishee process with summons was duly issued and served upon the Hartford Eire Insurance Co. Said company as such garnishee answered, disclosing that Henrietta Ravens held a policy of insurance in its company under which there might become due to her, because of a loss sustained by -her as the result of a fire on and in the property covered by said policy of insurance, the sum of $900, but' asserting that at the time of making said answer the amount of said loss had not then been ascertained, and there had not then been 'any adjustment of the same. On the hearing of this attachment suit the following finding and judgment was made and entered by the justice:

“February- 8, 1897, 7 o’clock a. m., the time set for appearance, this cause coining on to be heard, the defendants in court, trial had; whereupon it is considered by me that the plaintiff recover of the defendants, Henrietta Ravens and Henry Ravens, the sum of two hundred and forty-six and sixty one-hundredths ($246.60) dollars; and it further appearing the defendants have been guiltjr as charged in the affidavit' herein, the attachment is therefore sustained; and it appearing that the Hartford Insurance Co. has in its possession certain monies belonging to the defendants, amounting to $900, it is therefore ordered that the garnishee, the Hartford! Fire Insurance Co., pay into this court the sum of $360.-60; the amount of the judgment and costs herein, taxed at $-

The Hartford Insurance Go. never complied -with this order and no other or further proceedings were ever had in the attachment case before said justice. It having thereafter, in a suit against said insurance company, been ascertained and adjudged that the amount due Mrs. Ravens from said company on said policy of insurance was $350, and said F. Rempe & Son and Henrietta Ravens, each claiming to be entitled to said fund, said Hartford Insurance Co. commenced an action in t'he Superior Court of Cincinnati, brought said fund into court, and asked that said parties be required to interplead therefor and that said court adjudge and direct to whom said fund should be paid. In said action so brought by said insurance company, F. Rempe & Son,' plaintiff in error, filed an answer and cross-petition claiming said fund, or so much thereof as might be necessary to satisfy its judgment, by virtue of a lien -which it alleged it acquired by its judgment obtained in the attachment proceeding. Henrietta Ravens, by answer and cross-petition in said suit, claimed the right to hold as exempt said sum of $350, under the exemption laws of Ohio, -and demanded that the same be set off and allowed to her and her husband in lieu of a homestead. The facts of this case are not in dispute and it is conceded that said Henrietta Ravens is entitled, in this action, to have said allowance and to hold said fund as exempt', unless her right thereto is cut off or she is concluded and estopped from making such claim, because of the judgment in said attachment suit. It is contended on behalf of plaintiff in error that whether the property taken in attachment by garnishee process was property subject to exemption, by selection or otherwise, was, because of the averment in the affidavit in attachment that said property was exempt from execution, a question necessarily involved in that' suit, and being so involved it is said was determined and adjudicated by the judgment therein rendered; and it is the claim of plaintiff in error that by force of the judgment in that suit such question Became and is, as between the parties, res judicata and that the defendant in error, Henrietta Ravens, is therefore concluded and estopped in this -action, because of said judgment, from' now claiming or holding said property as exempt.

'Whether the matter of " her right to exemption was so involved in the attachment suit as that it was necessarily determined therein, and! whether in this action the effect claimed for it, shall be given to the judgment rendered in said attachment suit, are the only questions involved in the present inquiry. That the judgment of a court of competent jurisdiction upon a matter necessarily or directly in issue is, until vacated or reversed, conclusive as between the parties, is a rule too well established to admit of question. As said by Peck, J., in the case of Lore v. Truman, 10 Ohio St., 53:

“There can be no doubt, at the present day, but that the rule established in the Duchess of Kingston’s Case, in 11 State Trials, 291, cited with approbation by Chief Justice Gibson, in Hibshman v. Dulleban, 4 Watts, 191, and by Lewis, J., in Lentz v. Wallace, 17 Pa. St., 412, is the true one and well expressed: ‘The judgment of a court of concurrent jurisdiction, directly upon the point is, as a ¡Dlea in bar or as evidence, conclusive between the same parties, on "the same matter, directly in question in another court. But neither the judgment' of a court of concurrent or exclusive jurisdiction, is evidence of any matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.’

“So it is also said in 3 Phillips’ Evidence, 845, ‘that where a judgment (or decree) is relied on -by way of evidence as something conclusive, per se, between the parties, it must appear by the record of the prior suit, that the particular controversy so sought to be precluded:, was there necessarily tried and determined. In other words, if in such, cases, the former record clearly shows that the judgment to which this effect is ascribed could not have passed without deciding a particular matter, it will be considered as having settled that matter for all future actions; but otherwise not.’ ”

Applying this rule to the case at bar, unless it appears of record that in the attachment suit brought by F. Rempe & Son against Henrietta Ravens, that the question of the right of Henrietta Ravens to select and hold the fund in controversy exempt from execution was in that suit directly presented 'and determined, or that such matter was so necessarily involved as an issue in that proceeding that judgment therein “could not have passed without deciding the' particular matter,” then, and in that event, if such facts should not so' appear, such judgment as to such matter -would not bo final and conclusive, as against said Henrietta Ravens, and she would not, because of such judgment, -be barred from asserting and claiming such right of exemption in this action. Where as in this case the property sought to be subjected to the payment of the plaintiffs claim was not property, which was by statute specifically exempt, but was such as was exempt only upon demand and selection by the judgment debtor, the right to claim and have such exemption, being essentially a personal right or privilege, might, at will, be waived or asserted by the person in whose favor such right exists, hence in the very nature of things, until there is an assertion of such right by the person entitled to make the claim, a court is not called upon to make inquiry, nor can it rightfully determine the validity or invalidity of such claim or right, and by force of Section 5441, Revised Statutes, such claim is seasonably made if made at any time before sale or before the actual application of the property. Had Henrietta Ravens in said attachment proceeding filed, as she might have done, a motion to discharge 'said attachment on the ground that she was entitled to select and hold exempt from execution the property seized in said suit by garnishee process, and had such motion been heard and decided by the justice, then such question might be regarded as res judicata, and such judgment could be effectively pleaded as a bar to the claim for such exemption made by her in this action. Strauss v. Gooch, 47 Ohio St., 115. But no such motion to discharge t'he attachment having been made by her upon this or 'any other ground, and she having in ho manner invoked the action or judgment of the justice upon the question of her right to select and hold said property as exempt', her right to make such selection and hold said exemption were in no way involved or put in issue in said attachment suit, and in consequence were not determined or adjudicated by the judgment of said justice in that suit. A claim similar to the one relied upon and presented in argument by counsel for plaintiff in error in this case, was, it would seem, urged upon the consideration of this court in the case of Close v. Sinclair, 38 Ohio St., 530. This was a case involving, as does the case at bar, the question of the right of a judgment debtor after final judgment in an attachment suit, to select' 'and hold exempt the property seized to tbe amount and value of $500, in lieu of a homestead. Counsel for plaintiff in error claimed in argument that: “When the court sustained these attachment's and ordered the property sold, it adjudicated that this property was not exempt. The proceeding in attachment is essentially m rem, and the order to sell the attached property is an adjudication that it is liable to be applied to pay the claim-; and -when the debtor has knowledge of the attachment', his claim for exemption comes too late if not made- before this final -adjudication.” White, J., in the opinion in that case, referring to this claim and argument of counsel, said:

“It is claimed on beh'alf of the plaintiffs in error, that the orders of sale in the attachment suit's had! the effect to cut off the right; that such orders, in effect, adjudged that the 'defendant had no right to hold -the attached property exempt from sale. We do not think so. The effect of «the 'attachments and the subsequent orders of sale, was no greater in regard to tire right of exemption, than would have been had by a judgment and execution thereon, levied on the same property.”

The court further said:

“A waiver is also claimed to arise from the fact -that the debtor made no selection at the time of the levy of the attachments * * *

“The property now in question was selected by the debtor on August 4-, 1874 — six daj-s before -the time fixed for the sale — and was set off and appraised by the officer, on the eighth of the same month. The question is, whether there- was such delay in making the selection, as to operate as a waiver of the right. We think the statute, which declares that the selection may be made at any time before sale,’ requires the question to be answered in the negative. 70 0. L., 51. We doubt not the right' to make the selection may be waived by the debt-ox*, as was held in Butt v. Green, 29 Ohio St., G67, but we find no circumstances in the present case to justify us in holding that he had waived the right'.”

The writ of attachment or garnishment is in the nature of “an execution in advance” and the office and purpose of such writ is to hold and bind the property seized until final judgment in the attachment proceeding, and if upon final hearing in the attachment suit, judgment is entered in favor of plaintiff, the effect of such judgment is to give the plaintiff the right to enforce any lien he shall have acquired by his attachment or garnishment against whatever interest the defendant may have in the property attached or garnisheed, "subject to be applied to the payment of (his) plaintiff’s claim,” and such only is the legitimate scope and effect of the judgment in so far as it affects or binds the property levied upon, and the fact that the affidavit in attachment contains the averment that the property is "exempt from execution” can not operate to give to the judgment in attachment the effect of an adjudication of such claim or right in the absence of, and in advance of, an assertion thereof by the person entitled to make it. To hold that the judgment sustaining an attachment is in legal effect a finding and adjudication that the property seized is not, and thereafter can not be, exempt by selection or otherwise, would be to render inoperative the plain provision of the statute, Section 5441, which is, that such selection may be made at any time before sale, a provision which this court has said “should be liberally construed with a view of placing all debtors of the class upon a footing of equality.” 36 Ohio St., 548. A judgment sustaining an attachment and ordering the garnishee to pay into court the money in his hands belonging to the defendant, finds its support, and follows an inquiry quite apart from defendant’s claim to exemption, and is conclusive only as to such facts as are necessary to be considered in determining said judgment. The judgment we are now considering is doubtless conclusive of defendant’s indebtedness to plaintiff, and as to the amount thereof, and it is conclusive of the fact that the justice found that the garnishee had property in its hands belonging to the defendant, Henrietta Eavens, for these were all essential matters of inquiry in determining said judgment' and therefore necessarily embraced in it, but such judgment is not conclusive that the property so held by the garnishee may not be selected by, and allowed to, said Henrietta Eavens as an exemption in lieu of homestead, for that question was in no way involved by any issue before the court.

In Porter v. Wagner, 36 Ohio St., 471, the third clause of the syllabus is as follows: “A judgment is conclusive by way of estop-pel only as to facts without the proof or the admission of which it could not have been rendered.” The majority of the cases relied upon and cited in the brief of counsel for plaintiff in error, arc cases which only assert the well settled rule, that a valid judgment can not be collaterally attacked. But no case has been cited by them supporting the proposition for which they here contend."

From the facts disclosed of record in this case we find that the claim and right of the defendant in error, Henrietta Ravens, to the fund in contraven, is superior to that of the plaintiff in error, F. Rempe. & Son, and that said Henrietta Ravens was, and is, entitled to demand and hold said fund exempt from execution in lieu of a homestead. Such having been the judgment of the superior court its judgment is

Affirmed.