Davis v. Davis

MAUCK, J.

We assume that the conservator has complied with the statutes enabling him to bring an action in the courts of this state, but we are unaware of any authority for us to determine the important question raised by this motion in the summary method proposed. The plaintiff cites in support of our jurisdiction to act upon the motion Section 11705 GC., but a reading of that section develops that neither its letter nor spirit applies to the facts before' us. Something is said in the case of Wilson vs. Stilwell, 14 OS. 464, that indicates that a court has power to protect itself against an unauthorized release of its judgment, but an examination of that case shows that the party making the release was only a nominal party, that the real parties in interest were before the court, and that the court had full knowledge of the rights of all the parties including the lack of power in the plaintiff in that case to. release the judgment. In the case at bar the plaintiff could, if competent, release the decree rendered in her favor. In the case cited there was no legal right .to release the judgment and in the instant case the sole question is whether or not the judgment creditor had the capacity to make such release. If this release is absolutely void the conservator may proceed to realize upon the decree. If it is voidable only he will have to resort to a direct action to set it aside.

The motion of the defendant is sustained.

Middleton, PJ., and Blosser, J., concur.