Englander Motor Co. v. Zimmerman

VICKERY, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

This is an action brought by the Englander Motor Co. to enjoin the collection of a judgment against it for $900, in favor of one Zimmerman. Zimmerman bought a truck of the' Motor Company and gave a note and mortgage for- part payment of the same. The Company turned the note and mortgage over to the Morris Plan Bank. When the note became due a judgment was, obtained against Zimmerman for $2,900. Zimmerman set up by way of defense a plea of infancy, but the court found that he was not an infant. • As he was uncollectible, the Motor Company, being surety, had to pay the judgment.

Zimmerman then recovered a judgment in municipal court against the Company for $900, setting up that he was a minor and asking to recover certain money which he had paid them as part payment on the truck. The municipal court found that he was a minor and rendered judgment in his favor. The Motor Company then filed this suit to enjoin the collection of this $900, claiming that as Zimmerman was uncollectible, it would be compelled to pay his judgment unless he was restrained from collecting the same. In rendering a permanent injunction the Court of Appeals held:

Attorneys — George Q. Keeley, for Motor Co.; George D. Hile, for Zimmerman; both of Cleveland.

1. As there was an unreversed judgment existing in favor of the Motor Company in the sum of $2,900 and one in favor of Zimmerman to the extent of $900; it would be manifestly unfair to compel the Motor Co. to pay this judgment when Zimmerman is insolvent and cannot be made to pay. Therefore, a restraining order is permissible, as the Company should be permitted to offset as much of its judgment as is necessary to protect it against the judgment of Zimmerman.