
    No. 39
    BORST v. DONNELLY
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1281.
    November 28, 1924
    72. AMERCEMENT—1. Amercement under 12103 GC. being penal in nature, requires strict construction in favor of execution officer.
    2.Absence of injury to complainant is not defense.
    3. Execution stating amount slightly in excess of judgment and costs constitutes defense of irregularity in writ issued.
    4. Answer admitting allegation of regularity of execution held not conclusive admission of fact.
    Published only in Ohio Law Abstract
    ■ Attorneys—J. C. Nicholson, for Borst; C. B. Snook, for Donnelly.
   PER CURIAM.

Epitomized Opinion

Amercement of court bailiff was sought in the Columbus municipal court for failure to return an execution and for making a false return. The case was submitted upon certain agreements of counsel and upon the original files and papers. No admissions and no evidence to sustain the charge of false return was offered, hence, this charge was dismissed. Proof offered showed that the amount of execution was 50 cents in excess of the judgment, and the amount of costs included the costs of both plaintiff and defendant. The petition alleged regularity of the execution and it was contended that the answer admitted this fact. Judgment in favor of the bailiff was affirmed by the common pleas and court of appeals. The latter holding:

1. Amercement is penal in its nature and must be strictly construed in favor of the execution officer. Webb v. Anspach, 3 OS. 522.

2. Failure of complainant to prove injury resulting from an execution issued is not per se a defense to amercement.

3. An execution, irregular in amount of judgment stated and improperly assessing costs is a proper defense to amercement.

4.Answer to in amercement admitting charge of regularity of execution upon which action is founded, not being a necessary pleading, is not a conclusive proof of irregularity in fact.  