American Ins. Union v. Read

On the 17th day of April, 1926, the plaintiff, in an action at law, obtained a judgment in the court of common pleas of Summit county against the defendant, Loyd R. Read. The plaintiff had an execution issued upon said judgment to the sheriff of said county, which was returned unsatisfied. On the day the execution was returned the plaintiff filed a motion, in the case in which the judgment had been obtained, asking for an order requiring the defendant debtor to appear and answer concerning his property. The order was made, and the defendant and sundry witnesses appeared and were examined, and the court found the defendant was not the owner of any real or personal property subject to execution, and that the plaintiff could not recover anything by the proceeding thus instituted. The plaintiff, not being satisfied with such order, asked that the amount of an appeal bond be fixed, which was done, and an appeal was perfected. The defendant has filed a motion in this court, asking to have the appeal dismissed, for the reason that the proceeding instituted in the court of common pleas is not appealable.

Since the adoption of the amendments to the Constitution of this state in the year 1912, the jurisdiction of the Courts of Appeals has been fixed by the provisions of Section 6 of Article IV, and it has been repeatedly held by the Supreme Court and the Courts of Appeals of this state, since the adoption of said amendments, that only those proceedings which were known in chancery before the adoption of the Civil Code, are appealable.

Before the adoption of the Code there were, among others, two chancery proceedings, one known as a creditor's bill and the other as a bill of discovery; and, while the two could be, and often were, combined in one suit, the relief sought in either case could be obtained only in an equitable proceeding, which, after the adoption of the Code, was known as a civil action.

But the plaintiff claims that the proceeding started by it in the court of common pleas is the same as a bill of discovery, while the defendant claims that the proceeding was one in aid of execution, especially provided by statute, and that it has no relation to and is not similar to the original chancery proceeding known as a bill of discovery.

By Section 11760, General Code, the Legislature provided a statutory proceeding by which the relief theretofore given by a creditor's bill could be obtained, and specifically provided that such relief should be obtained by the bringing of a civil action, and a proceeding under this section has been held by the Supreme Court of this state to be in the nature of a creditor's bill.Dunbar v. Harrison, 18 Ohio St. 24, 37.

When the original law was passed by the General Assembly (51 Ohio Laws 57, Section 458), which is now known as Section 11760, General Code, it was made a part of the Civil Code, and there was added to the end of the section the words "or as in this chapter prescribed," and this chapter (Chapter 2, Title 14, of the Civil Code; 51 Ohio Laws, p. 135) made provision for proceedings in aid of execution, which provisions are substantially the same as are now included in Section 11768 et seq., of the General Code.

So, when the General Assembly originally enacted the Civil Code in the year 1853, it intended to retain for the creditor his original creditor's bill, known in chancery, which should be a civil action, and to give him also a special statutory proceeding, with its own peculiar procedure different from the procedure of a civil action, summary in its nature, which was not to be a civil action; and when it gave a judgment creditor, by Section 11760, General Code, the right to subject the debtor's "money, goods, or effects which he has in the possession of any person, or body politic or corporate, * * * to the payment of the judgment, by action," it meant a civil action under the Code in the nature of a creditor's bill; and when it said, in said original section, "or as in this chapter prescribed," it intended to give to said creditor an additional remedy, more specific and more effective, and to do away with the necessity of starting a civil action under the Code in the nature of a creditor's bill or a bill of discovery.

While the proceeding in aid of execution thus provided by statute accomplished to a large extent that which had theretofore been accomplished by a bill of discovery, it was not the same thing as a bill of discovery; it was a summary proceeding after judgment, and was intended to be a special statutory one, unknown to the law prior thereto, and was not intended to take the place of a civil action under the Code in the nature of a bill of discovery.

We therefore hold that the proceeding started in the common pleas court was a proceeding in aid of execution, not a chancery bill of discovery under the Code of Civil Procedure, and is not appealable.

The motion of the defendant to dismiss the appeal is therefore sustained.

Motion to dismiss sustained.

WASHBURN, P.J., and FUNK, J., concur.