Ford v. Anderson

HAMILTON, PJ.

“This defense cannot be maintáined in this action. Section 11104 GC. provides, among other things, that a sale for the purpose of defrauding creditors may be set aside at a suit of a creditor. If the defendant desired to set aside this sale as fraudulent, it was incumbent upon it to bring this suit, as a creditor, to set aside the sale.

This leaves but the one question, as to whether or not the plaintiff has an adequate remedy at law, and is not entitled to equitable relief.

The Bergewisch Company, defendant, argues that the plaintiff has adequate remedy under favor of Sect. 11741 GC., which, in substance, provides that where property is taken on a writ of execution, and the property is claimed by a person other than the defendant, the ownership of the property could be tried by a justice of the peace, and he, therefore, has an adequate remedy at law. While this is a method of recovery of property taken on execution by a third party claiming the ownership, and might be an adequate remedy in some instances, the statutory remedy would be inadequate and insufficient in a case like this.

It is in the record that the tangible assets of the meat market consisted mainly of but a few furnishings and fixtures of small value. The business, as a going concern, is a valuable one, and if execution was levied on the tangible assets, it would close the business, would ruin the good- will, and would be a total loss, to the plaintiff, of his business, for which he has paid full value in money.

The following are cases supporting this proposition of law: Patty v. Mansfield, 8 Ohio 371; Jones v. Carr & Co., 16 OS. 420; Betz v. Betz, 4 Oh. Ap. 264; Miller v. Longacre, 26 Oh. St. 291; State ex Voight v. Lueders, Probate Judge, 101 OS. 211.

It seems clear that a levy of execution upon

the plaintiff’s property, situated as it is, would result in a wasting of and a ruining of the business, and unless and until the defendant, by proper action, establishes its claim of fraud, the prayer of the plaintiff for an injunction will be granted.

An entry may be presented granting a permanent injunction.”

(Mills and Cushing, JJ., concur.)