
    Uricich v. Kolesar.
    (Decided June 8, 1936.)
    
      Messrs. Woodle S Wachtel, for plaintiff in error.
    
      Mr. Frank T. Cullitan, prosecuting attorney, and Miss Margaret Lawrence, for defendant in error.
   Levine, J.

The plaintiff obtained a judgment against the defendant and thereafter instituted proceedings in aid of execution wherein the county of Cuyahoga and John J. Boyle, county treasurer, were named as garnishees. A motion to quash service was filed by the garnishees. The court sustained the motion on the ground that the judgment debtor was a county employee. In effect the court held that the county, or county officers acting in its behalf, cannot bo made garnishees. Error proceedings were instituted in this court seeking a reversal of the ruling of the Common Pleas Court.

We are asked to interpret Section 11760, General Code, which in part reads:

“When a judgment debtor has not personal or real property subject to levy on execution sufficient to satisfy the judgment, any equitable interest which he has * * * in a money contract, claim, or chose in action, due or to become due to him, or in a judgment or order, or money, goods, or effects which he has in the possession of any person, or body politic or corporate, shall be subject to the payment of the judgment, by action. ’

We are specifically required to interpret the meaning of the term “body politic.’’ Counsel for defendant refer the court to two cases as follows: Southern Ohio Finance Corp. v. Wahl, Jr., 34 Ohio App., 518, 171 N. E., 369, and Bazzoli v. Larson, 40 Ohio App., 321, 178 N. E., 331.

Southern Ohio Finance Corp. v. Wahl, Jr., supra, holds in paragraph two of the syllabus:

“A county is not subject to attachment, in proceedings in aid of execution, for a debt due to judgment debtor under Section 11760, General Code.”

Bazzoli v. Larson, supra, is to the same effect.

An examination of Southern Ohio Finance Corp. v. Wahl, Jr., supra, indicates that the real decision turns upon the proposition that the county auditor was not the proper party garnishee in proceedings in aid of execution to attach a salary due from the county to the judgment debtor, and the further proposition that under the facts of the particular case there has been a failure to comply with procedural requirements of the statute relating to proceedings in aid of execution. The language with reference to the attachability of the county must'be regarded as pure dictum.

-The case of Bazzoli v. Larson, supra, dealt with the provisions of the code governing proceedings in aid of execution in justice courts. The language of the statute contained in the Justice Court Code, providing for proceedings in aid of execution in that court, is entirely different from the language of the civil code procedure in the Common Pleas Court. Section 10265, General Code, which is the Justice Court Code, reads as follows:

“When the plaintiff, his agent or attorney, makes oath in writing that he has good reason to believe, and does believe, that any person, partnership or corporation in the affidavit named, has property of the defendant in his possession * * *.”

Compare the language of this section with that of Section 11760, General Code, which is the section under discussion and pertains to the present case. In the Justice Court Code we have the language “Any person, partnership or corporation.” In Section 11760, General Code, we have the language “Any person, or body politic or corporate.”

It is well settled that in the absence of an enabling statute a county cannot be sued. We must, of course, look to the language of the code and thereby determine whether under its provisions the county may be made a party. On May 16,1927, the Cnyahoga county Court of Appeals decided the case of Cooper v. Schooley, 26 Ohio App., 313, 159 N. E., 727. This court there held:

“Where money of member of city council was earned, attachment or garnishment of such public offcer’s salary in aid of execution on judgment against officer was proper and was not contrary to public policy.”

This court relied on the case of City of Newark v. Funk & Bro., 15 Ohio St., 462. In this last-named case the Supreme Court held:

“Salaries of officers of incorporated cities, due and unpaid, may be subjected by judgment creditors of such officers to the payment of their judgments, under the provisions of Section 458 of the code of civil procedure (which is the same as Section 11760, General Code).”

In the opinion, at page 463, we find the following significant language:

“The ground insisted upon by counsel for the plaintiff in error is, that it is against public policy, to permit the garnishment of the salaries or pay of public officers under this provision. They say, that while private corporations, as well as natural persons, are subject to the provision of the act, public or municipal corporations are not; or at least, if they are, that it is only in cases of ordinary debts due from them, and that it is against public policy to permit the salaries and pay of their officers, and public agents, to be so garnisheed.

“Under statutes similar to ours, in other states, authorities are quite conflicting; so much so, that we do not feel bound by any of them, and see nothing to prevent us from deciding the question as an original one, according to our own views of public policy, and of the meaning and intent of the statute.

“The words of the statute seem plain. They are, that ‘any claim or chose in action,’ and that ‘all money’ in the hands of ‘omy person, body politic or corporate,’ may be subjected * * *.

“We see nothing in the requirements of public good, and surely there is nothing in the justice of the case, requiring us to depart from the plain reading of the statute. And if the legislature had intended otherwise, they surely would have made the exception claimed, by express provision, or by the use of language less broad and comprehensive. ’ ’

The holding in the case of City of Newark v. Funk, supra, was followed in other states.

In Waterbury v. Board of Commissioners of Deer Lodge County, 10 Mont., 515, 26 P., 1002, the court held that under the code of civil procedure of Montana,. Section 189, providing that all persons having posses,-. sion or control of credits or property of the defendant, or owing him, shall be liable as garnishees, and, under' the general laws of Montana, Section 202, providing that the word “person” may extend to bodies politic and corporate, a county may be garnisheed for debts owed by it to one of its officers; and that such construction of the statutes was not contrary to public policy as tending to impede the exercise of its functions and to impair the usefulness of its service. The court stated in its opinion:

“The garnishment of towns, cities and counties has been the subject of such conflicting views in different states, and being a first impression in this court, we incline to adopt the language of Judge Welch in City of Newark v. Funk, 15 Ohio St., 463.”

A distinction is sought to be drawn between the county and municipal corporations named as garnishees. The decision in Waterbury v. County Commissioners of Deer Lodge County, supra, relates to the liability of the county as garnishee, and in sustaining the right to make the county garnishee the court relied on the Ohio decision, City of Newark v. Funk, supra, which dealt with the question of the liability of a municipal corporation as- garnishee.

In the last-named analysis we are called upon to look for the definition of the phrase “body politic.”

In United States v. Maurice, 26 Fed. Cas., 1216, Chief Justice Marshall said: “The United States is a government, and, consequently, a body politic and corporate.”

“A ‘body politic’ is a social compact by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.” City of Durham v. Eno Cotton Mills, 141 N. C., 615, 54 S. E., 453, 7 L. R. A. (N. S.), 321.

Giving the language of Section 11760, General Code, its plain and unambiguous meaning, under the accepted definitions, it seems clear to us that by its language the code expressly made the county liable as garnishee the same as any other person.

We are aided by another specific provision of the code. Section 11829, General Code, reads as follows :

“The service of process of garnishment upon the sheriff, coroner, clerk, constable, master commissioner, marshal of a municipal corporation, or other officer having in his possession any money, claim, or other property of the defendant, or in which the defendant has an interest, shall bind it from the time of service, and be a legal excuse to such officers, to the extent of the demand of the plaintiff, for not paying such money or delivering such claim or property to the defendant, as by law, or the terms of the process in his hands, he would otherwise be bound to do.”

Note the language: “Service of process of garnishment upon the sheriff, coroner, clerk, constable, master commissioner, marshal of a municipal corporation, or other officer having in his possession any money * * *.”

What is meant by the phrase ‘ ‘ or other officer ” ? In order to determine its meaning we must look to the officers specifically named. There are county officers and municipal officers named. They are classed together, and by express language made liable as garnishees. If it be contended that this last named section refers only to garnishment, and not to. aid proceedings, we would answer by stating that even if it were so it indicates, at least, the policy of the state not to except county officers from garnishment process. It greatly aids us in interpreting Section 11760, General Code', in determining what is meant by “body politic.”

Adhering to our decision in Cooper v. Schooley, supra, and other authorities mentioned in this opinion, we conclude that Section 11760, General Code, clearly intended that counties and county officers shall be held liable as garnishees.

We are of the opinion that the Common Pleas Court committed error in sustaining the motion to quash.

The judgment of the Common Pleas Court is ordered reversed and the cause is remanded to the Common Pleas Court with instructions to overrule the motion to quash.

Judgment reversed and cause remanded.

Terrell, J., concurs in judgment.

Lieghley, P. J.,

dissents for the reason that there is no enabling statute making the county answerable to garnishment process.  