Womack v. Eversman

Ohio Court of Appeals

Womack v. Eversman

37 N.E.2d 678, 67 Ohio App. 287, 33 Ohio Law. Abs. 630, 21 Ohio Op. 260, 1941 Ohio App. LEXIS 800

CourtOhio Court of Appeals

DecidedMarch 17, 1941

DocketNo 5913

StatusPublished

This text of 37 N.E.2d 678 (Womack v. Eversman) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Womack v. Eversman, 37 N.E.2d 678, 67 Ohio App. 287, 33 Ohio Law. Abs. 630, 21 Ohio Op. 260, 1941 Ohio App. LEXIS 800 (Ohio Ct. App. 1941).

Pincite

Opinion

OPINION

BY THE COURT:

The Common Pleas Court sustained a general demurrer to the third amended petition, and the plaintiff not desiring to plead further, judgment was rendered against her. It is from that judgment that this appeal was taken.

The third amended petition is styled “Creditor’s Bill”, which, of course, is an-erroneous description as under the Ohio Code of Civil Procedure, an action is, begun by the filing of a petition. However, no objection is made to this pleading on that ground.

The only question is whether when construed most favorably to the pleader, it stated a cause of action. We examine it to determine that.

It is alleged that the plaintiff has a judgment against one of the- defendants and that that defendant has no personal or real property subject to execution. It is then alleged that this defendant under an agreement with the other defendant erected certain houses on lots to which this defendant has the legal title, and that the agreement provided the legal owner should have pay for its services and property and the judgment debtor the balance. It is expressly alleged that the judgment debtor has a contingent equitable interest in the real estate described by reference to subdivision lot numbers. The prayer is that this equitable interest be sold and the proceeds applied to the payment of the judgment.

We are of the opinion that this' pleading states all the essential ele-, ments of a cause of action to subject' equitable assets, not subject to execution, to the payment of this judgment, and that the court erred in sustaining the demurrer.

For this reason, the judgment is reversed, and the cause remanded for further proceedings according to law.

MATTHEWS, PJ„ ROSS and HAMILTON, JJ., concur.

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OPINION

BY THE COURT:

The Common Pleas Court sustained a general demurrer to the third amended petition, and the plaintiff not desiring to plead further, judgment was rendered against her. It is from that judgment that this appeal was taken.

The third amended petition is styled “Creditor’s Bill”, which, of course, is an-erroneous description as under the Ohio Code of Civil Procedure, an action is, begun by the filing of a petition. However, no objection is made to this pleading on that ground.

The only question is whether when construed most favorably to the pleader, it stated a cause of action. We examine it to determine that.

It is alleged that the plaintiff has a judgment against one of the- defendants and that that defendant has no personal or real property subject to execution. It is then alleged that this defendant under an agreement with the other defendant erected certain houses on lots to which this defendant has the legal title, and that the agreement provided the legal owner should have pay for its services and property and the judgment debtor the balance. It is expressly alleged that the judgment debtor has a contingent equitable interest in the real estate described by reference to subdivision lot numbers. The prayer is that this equitable interest be sold and the proceeds applied to the payment of the judgment.

We are of the opinion that this' pleading states all the essential ele-, ments of a cause of action to subject' equitable assets, not subject to execution, to the payment of this judgment, and that the court erred in sustaining the demurrer.

For this reason, the judgment is reversed, and the cause remanded for further proceedings according to law.

MATTHEWS, PJ„ ROSS and HAMILTON, JJ., concur.

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Bluebook (online)

37 N.E.2d 678, 67 Ohio App. 287, 33 Ohio Law. Abs. 630, 21 Ohio Op. 260, 1941 Ohio App. LEXIS 800, Counsel Stack Legal Research, https://law.counselstack.com/opinion/womack-v-eversman-ohioctapp-1941.