Phillips-Jones Corp. v. Becker ( 1926 )

RICHARDS, J.

The Phillips-Jones Corp. obtained a judgment in the Toledo Municipal Court against one Frank Faioz and caused an execution to be issued to Louis Becker, who was marshal of said court. The execution was returned unsatisfied, no property being found on which to levy.

This action was brought by the Phillips-Jones Co. against Becker as marshal, to recover damages for failing to levy the execution. The trial resulted in a judgment in favor of Becker which was affirmed by the Lucas Common Pleas. Error was prosecuted and the Court of Appeals held:

Attorneys — Lewis B. Hall & Orion W. Nelson for Company; Edward McCamie for Becker; all of Toledo.

1. Shortly after the execution was issued the marshal went to Faioz’s place of business to make a levy and was assured by him that an agreement of settlement had been effected and that he was making payments. For this reason no levy was made.

2. If the marshal holding the execution did not wilfully refuse or fail to make the levy or was not guilty of any want of due diligence in failing to make the levy, he would not be liable in this action.

3. A finding in his favor by the trial court is not manifestly against the weight of evidence.

4. It further appears that Faioz was the head and support of a family and that the part of the goods belonging to him did not exceed $350 in value, and he was entitled to hold same exempt from execution.

Judgment affirmed.

(Williams & Young, JJ., concur.)