
    The Union Bank of Rochester v. The Union Bank of Sandusky.
    In proceedings in aid of execution, under the 464th section of the code, a debtor of the execution debtor, against whom an order of the judge is issued, can not, after the service of the order, discharge himself from the proceeding.by payment to the execution debtor of his indebtedness — the service of the order having the effect of lis pendens.
    
    An order requiring A, president of the Union Bank, and B, cashier, to testify as to any indebtedness of the bank to C, without otherwise naming the bank, or indicating otherwise the object of the order, does not make the bank a party to the proceeding.
    A judge can not, under the 461th section of the code, enforce the pajrment of a debt, in the absence of all fraud, by imprisonment as for a contempt, but may direct the application ©f the proceeds of the debt, when collected by the receiver, or otherwise.
    ^Petition in error to reverse the judgment of the court of [255 •commom pleas of Erie county.
    The plaintiff in error recovered a judgment in the Cuyahoga common pleas, against the Sandusky, Mansfield and Newark Railroad Company and others. The principal office of this company being at Sandusky city, and the railroad company being the principal •debtor, an execution was issued on the 8th day of March, 1855, .and sent to the sheriff of Erie, county. Finding no property, whereon to levy, the plaintiff, on the 7th of April following, instituted proceedings in aid of execution before the probate judge of that county, for the purpose of reaching money in the hands of the defendant, the Union Bank of Sandusky, belonging to the railroad company. For this purpose the following affidavit was made and filed with the probate judge :
    
      “ Homer Goodwin, of lawful age, being sworn by mo, says that he is the lawful attorney of the Union Bank of Rochester, which bank is a lawful corporation, existing as such by the laws of the State of New York, and as such corporation the said bank recovered a judgment in the court of common pleas of Cuyahoga county, and State of Ohio, at a term of said court commencing on the 15th day of February, a. d. 1855, for the sum of nineteen hundred and seventy-six one-hundredths dollars, against the Sandusky City Bank, The Sandusky, Mansfield and Newark Railroad Company, John R. Robinson, superintendent, and others. And on the 8th, day of March, a. d. 1855, an execution was duly issued out of said court on said judgment, to the sheriff of Erie county, Ohio, which was the sheriff of the county where said Sandusky City-Rank is located, and where the principal office of business of said, railroad company is also located, and where the said Robinson, superintendent, for the most part, resides; said execution corn-256] manding said ^sheriff, that of the goods and chattels of the-said defendants found in his bailiwick, he cause to be made the said judgment, together with damages and costs; and for want of goods and chattels, then that he cause said amount to be made of the lands and tenements of the said Sandusky City Bank, The San-dusky, Mansfield and Newark Railroad Company, J. R. Robinson, superintendent, and Ansel Roberts, impleaded, etc. And affiant further says, that the said judgment debtors, the Sandusky City Bank, said railroad company, J. R. Robinson, superintendent, have not personal or real property subject to levy on execution, sufficient to-satisfy the aforesaid judgment; but that the said Sandusky, Mansfield and Newark Railroad Company (which is the principal debtor in said jadgment, and which ought to pay it in preference to the-others of said defendants) has money in the Union Bank of San-dusky, a body corporate, situate in said Sandusky, which money ought justly to be applied in the payment of said judgment; and that said Union Bank, a corporation aforesaid, is indebted to said “railroad company, in about the-sum of three thousand dollars, as affiant is informed and believes, by way of a deposit of money with said bank last mentioned, which stands to the credit of said, railroad company on the books of said bank ; and further deponent saith not. Homer Goodwin. Sworn to, etc., on the 7th of April, 1855.”
    The probate judge entered upon his journal the following order:
    “On motion to the court by H. Goodwin, Esq., attorney for-plaintiff, and it appearing to the satisfaction of the court by affidavit of'H. Goodwin, that the Union Bank of Rochester has recovered a judgment in the court of common pleas of Cuyahoga county, Ohio, at the February term thereof, against the Sandusky, 257] Mansfield and Newark ^Railroad Company and others, for the sum of nineteen hundred and eighteen dollars and fifty cents, and eight dollars and twenty-six cents costs; and that said railroad company has no personal or real property subject to levy on. •execution, and that the Union Bank of Sandusky, a corporation, is indebted to the said railroad eonpany in about the sum of three thousand dollars, it is ordered that an order issue, requiring E. T. Barney, the president, and G. W. Weston, the cashier of said Union Bank of Sandusky, to appear and answer on oath concerning the •same, on Monday, the 9th day of April, A. D. 1855, at nine o’clock in the morning on said day; and it is further ordered, that the plaintiff notify the said railroad company of the matters herein, .so as to give them or one of their officers sufficient time to be present at such examination.
    “Abraham H. Stryker, Probate Judge.”
    
    The probate judge issued to the sheriff a notice, under the four '■hundred and sixty-fourth section of the code, as follows :
    “ The State oe Ohio, Erie County, ss.
    -“ To the"Sheriff of the County of Erie, greeting:
    
    “ You are hereby commanded to notify E. T. Barney, the president, and G. M. Weston, the cashier of the Union Bank of San-dusky, to be and appear before the judge of the probate court, at the court-house in said county, on the 9th day of April, A. d. 1855, at nine’o’clock, forenoon, then and there to answer on oath concerning the indebtedness of said hank to the Sandusky, Mansfield and Newark Railroad Company ; and this they shall in no wise omit; and have you then and there this writ. •
    “ Given under my hand, and the seal of said court, at the courthouse in the city of Sandusky, said county this 7th day of April, A. D. 1855.
    [seal.] “Abraham H. Stryker,
    
      “Judge of the Probate Court.”
    
    Upon this notice the sheriff made the following return: “I served this writ by delivering copies thereof to the *within- [258 named Barney and Weston, on the 9th day of April, 1855.
    Barney, the president, and Weston, the cashier of the bank, appeared on the 9th, in pursuance of the notice, and answered (and their answers were reduced to writing), in substance, that at the time the notice was served upon them, the assistant treasurer of the company had on deposit in the bank the sum of $3,825 ; that after the -service of the notice they had paid on the check of this assistant treasurer the sum of $3,800.; leaving but $25 to his credit; and the assistant treasurer stated that he drew the money after notice was served upon Stoekwell, the president of the company, who directed him to draw the money. Upon this state of facts, the probate judge ordered the bank to pay to the judgment creditor enough of the money on deposit when the notice was served, to satisfy the judgment. This order was reversed in the common pleas, and the present petition is filed to reverse the judgment of that court.
    
      Homer Goodwin, John Crowell, and R. P. Banney, for plaintiff in error.
    
      E. B. Sadler, W. F. Stone, and H. H. Hunter, for defendant in error.
   J. R. Swan, J.

1. The original proceeding was under sec. 464 etc., of the code, “in aid of execution.” The object of the Union Bank of Rochester was to obtain payment of its judgment against, the Sandusky, Mansfield and Newark Railroad Company,'by subjecting thereto a debt which the Union Bank of Sandusky owed to-the railroad company.

We entertain no doubt but that if the Union Bank of Sandusky 259] had been duly served with an order, all *the incidents of Us pendens must necessarily be enforced against it from the time of such service, and the bank would have been amenable to the plaintiff in the execution for any-indebtedness it may have been under to the defendant in the execution. Any other construction of the code would make the service of the order a mere invitation to place the fund beyond the reach of the creditor, and render the proceeding, in practice, altogether nugatory. Porter v. Williams et al., 5 How. Pr. 441; 2 Whitt. Pr. 142 (2 ed.). Section 468 of the code-gives the judge power to “ forbid a transfer or other disposition of the property of the judgment debtor not exempt by law, and any interference therewith.” This provision was proper, because applicable to some cases in which the rules of Us pendens would not protect the rights of the judgment creditor. It does not therefore indicate that the rules of Us pendens are inapplicable to a judge’s order,, under section 464 of the code, after service of the order.

2. But did the notice issued against and served on “F. T. Barney,, the president, and G-. M. Weston, the cashier of the Union Bank of Sandusky,” requiring those two officers to testify as to the indebtedness of the bank to the Sandusky and Mansfield Railroad Company, make the bank a party to the proceedings of the Union Bank of Rochester ? If a copy of the journal-entry of the had been recited in the notice, or if the notice had shown that the Union Bank of Rochester was proceeding to subject the indebtedness named to the payment of a judgment against the railroad company, the notice might have been sufficient. But the notice indicates simply that Barney and Weston were required as witnesses touching the indebtedness of the bank to the railroad company. The Bank .of Rochester is not alluded to. At whose instance, or for what purpose, or in what action or proceeding *the testi- [260 mony was required, is wholly omitted from the notice. The Bank of Sandusky is nowhere named, except in the description of the offices held by Barney and Weston. It does not indicate that it was an order, or based upon any order, in aid of execution. If there had been pending before the probate judge the settlement of the estate of a stockholder of the bank, in which was drawn in question a deposit made by him to the credit of the railroad company, this notice would have heen quite as proper, as in the present caso. We are of the opinion that the Sandusky bank,' as a corporation, was not made a party to these proceedings by the issuing of this notice against Barney and Weston, or by its service on them. Instead of this notice, the probate judge should have issued to the sheriff a copy of his journal entry, and had the same served. Code, sec. 474.

3. After the money had been paid over by the Union Bank of Sandusky to the railroad company, and after the testimony had been taken, and upon the final hearing before the probate judge, it appears by the record that the Union Bank of Sandusky appeared by its attorney to contest the final order. This appearance is claimed as a waiver of service of the order. If it be so, it can not by relation be treated as service of the order before the money was paid over to the railroad company; so that it works no benefit in that respect to the Union Bank of Rochester.

4. The probate judge ordered the Union Bank of Sandusky to pay a certain amount to the Rochester bank. This order brings before us the construction of sections 467, 468, and 473 of the code. These sections are as follows:

“ Sec. 467. The judge may order any property of the judgment debtor not exempt by law, in the hands either of himself or any other person or corporation, or due to the ^judgment debtor, [261 to be applied toward the satisfaction of the judgment; but the earnings of the debtor for his personal services, at any time within three months next preceding the order, can not be so applied, when it is made to appear by the debtor’s affidavit, or otherwise, that such earnings are necessary for the use of a family supported wholly or partly bjr his labor.
“ Sec. 468. The judge may also, by order, appoint the sheriff of the proper county, or other suitable person, a receiver of the property of the judgment debtor, in the same manner, and with the like authority, as if the appointment was made by the court. The judge may also, by order, forbid a transfer or other disposition of the property of the judgment debtor, not exempt by law, and any interference therewith.”
Seo. 473. If any person, party, or witness, disobey an order of the judge or referee, duly served, such person, party, or witness, may be punished by the judge as for a contempt.”

If section 467 authorizes the judge to order payment of a debt or the delivery of property, then section 473 authorizes him to enforce such order by imprisonment. Such summary mode of enforcing the payment of a debt by imprisonment would probably be a violation of the constitution. Art. 1, sec. 15. Such, however, is not the proper construction of section 467. There is a manifest difference between an order to pay a debt and an order settling the right of the judgment creditor to the application of the proceeds of a debt. The latter is all that was intended by section- 467 of the code. It authorizes ithe judge to order that either property or a debt due the judgment debtor, be applied to the satisfaction of the judgment; thus fixing the right of the judgment debtor, so that when possession of the property is obtained, or the debt collected, by the 262] * sheriff or receiver, under section 468, the proceeds may be duly applied to the discharge, of the judgment.

It is unnecessary for us to determine whether the order under section 467, such as we hold to be proper, could be enforced by imprisonment; perhaps it could be; and conceding that it could be, it is quite clear to us that the section does not authorize a peremptory order to pay a debt.

If, however, a peremptory order to pay a debt is made, it must be construed as a mere order for the application of the debt, when collected, to the discharge of the judgment; and its payment could not’be enforced by imprisonment.

The counsel on both sides have consumed much ink and paper in endeavoring to show the corrupt practices and dishonest motives of their adversaries’ clients. We could not avoid reading all this. 'Conceding, as a matter of courtesy, the force and truth of all that is said on both sides, we have been unable to perceive its application, to the construction of the code.

Judgment of the court of common pleas affirmed

Bartley, C. J., and Brinkerhoee, Bowen, and Soott, JJ., concurred.  