Ries v. Bank

5 Ohio Cir. Dec. 20

• Court: Darke Circuit Court
• Decided: November 15, 1895
• Status: Published

Opinion

AurrBAd, J.

It has been settled by the supreme court, that error may be prosecuted to an order refusing to dissolve a temporary injunction. Burke v. Railway Co., 45 O. S., 631.

The question is, therefore, one of conflict of injunction. There is no doubt that by the commencement of the action in the probate court, by the assignee against all parties in interest, if not indeed from the qualification of the assignee, the probate court was invested with full and ample jurisdiction of the sale of the real estate unless prior to the filing of such deed and qualification of such assignee, the common pleas court had obtained such jurisdiction.

This brings us to the important question: What jurisdiction did the common pleas acquire by the attachment proceedings ?

The action below was for money. The attachment proceedings were auxiliary merely.

Devor & Devor, for Plaintiff in Error. Knox, Marte & Rupe, contra.

The main case, namely, the money demand, must be tried free from complicated issues made by third parties as to their rights to the property seized in the auxiliary proceedings. Gates v. Penn. Land & Lumber Co., 6 Circ. Dec., 163.

Upon the termination of the action by a judgment, the creditor may enforce his attachment levy by a sale of the attached property. If, however, the property was incumbered at the time of the levy by mortgages or liens, other than attachments provided for in section 5559, Revised Statutes, the property cannot be sold upon the attachment levy without an action. Section 5464, Revised Statutes; Baird v. Kirtland, 8 Ohio, 23; Seymore v. King, 11 Ohio, 342; Stone v. Strong, 42 O. S., 53-55.

The mortgages cannot properly intervene in the attachment case. This was distinctly held in the case of Endel v. Seibrock, 33 O. S., 234. There the mortgagee became a party in the attachment case and filed a cross-petition to foreclose his mortgage. It was said that such practice was not proper, and that no jurisdiction to foreclose the mortgage could be obtained unless the proper steps were taken as in an independent action to secure such jurisdiction.

It must, therefore, be apparent that the common pleas in the case below did not have full jurisdiction of the sale of the real estate of Samuel Gray at the time of the qualification of the assignee.

Such attachment creditor could only acquire such jurisdiction after judgment, by an independent action, or by a supplemental proceeding having the same effect.

The probate court having first acquired jurisdiction to administer full and complete relief, was entitled to proceed.

This principle is established by the authority of Dwyer v. Garlough, 31 O. S., 159. The mortgagee was entitled to foreclose his mortgage in the common pleas because the probate court did not then have jurisdiction to bar the contingent right of dower of the assignor’s wife. The court of common pleas alone could administer full relief.

There is another ground upon which the injunction ought to have been dissolved. The plaintiff below had an adequate remedy at law. It was its duty to defend in the action in the probate court.

At the time the supplemental petition for injunction was filed in the court below, it could have moved during the judgment term to set-aside the judgment of the probate court, if taken without actual notice, or if any ground existed which prevented it from defending before judgment.

We do not think that a party properly notified by publication, or otherwise, in an action in a court having jurisdiction of the subject mat-, ter, can ignore the judgment rendered therein, and have a court of equity enjoin its enforcement.

The court of common pleas erred in overruling the motion to dissolve the temporary injunction.

Judgment reversed, motion sustained and temporary injunction dissolved.