
    Midland Acceptance Corp. v. General Motors Acceptance Corp.
    (Decided February 19, 1934.)
    
      
      Mr. Donald E. Calhoun, for plaintiff in error.
    
      Messrs. Hightower é O’Brien, for defendant in error.
   Ross, J.

This is a proceeding in error from a final judgment of the Court of Common Pleas of Hamilton county in favor of the plaintiff therein.

On February 1, 1933, the General Motors Acceptance Corporation filed suit against the Midland Acceptance Corporation and the bailiff of the Municipal Court of Cincinnati, alleging a wrongful execution upon its property. The allegations of the petition are that the plaintiff in error here, the Midland Acceptance Corporation, procured a judgment for $946 in the Municipal Court of Cincinnati against Edward L. Runk, and, on January 23, 1933, issued an execution thereon, upon a Buick automobile, and that the bailiff of such Municipal Court took the automobile into his possession and was proceeding under the execution to sell the same, the sale being advertised for February 6, 1933.

The plaintiff, General Motors Acceptance Corporation, further alleged “that said Buick sedan is not now, was not at the time of the rendering of the said judgment in the Municipal Court, or of the levying of said execution by said bailiff, the property of the said Ed Runk; that title in and to said Buick car is now and had been for more than a year immediately preceding the filing of this action in and to this plaintiff, and that the defendants herein have no right, legal or equitable, in and to said property. Plaintiff says that although it owns said automobile and has title to the same, it is unable to stop the proceedings for the sale which are now being carried forward by these defendants and it has no adequate remedy at law.”

A temporary restraining order was asked and permanent injunction prayed for. A temporary restraining order was granted. It is contended by tbe defendant in error, General Motors Acceptance Corporation, that this was with the consent of the plaintiff in error. The only evidence of this is the “O. K.” and signature of counsel upon the entry granting the restraining order, and the fact that no exception was noted. Later on, a motion was made to dissolve the temporary restraining order. This was never granted, and the restraining order is still in force.

The answer of the Midland Acceptance Corporation, plaintiff in error here, denied that the defendant in error had title to the automobile, and asserted that defendant in error had an adequate remedy at law.

On May 10, 1933, the defendant in error filed a suit in which the levy of execution and taking by the bailiff were alleged. It was further alleged:

“Plaintiff says that the Buick automobile upon which the defendant has levied execution and which the defendant is proceeding to sell by virtue of said execution, is now and has at all times since January 13, 1932, been the property of this plaintiff, that there is due and unpaid on said chattel mortgage on said car the sum of Seven Hundred Twenty ($720.00) Dollars, and that if said Defendant proceeds to sell said automobile under and by virtue of its execution and levy thereunder, then said defendant is indebted to this plaintiff in the sum of Seven Hundred Twenty ($720.00) Dollars, which is now due it as an unpaid balance under and by virtue , of said note and chattel mortgage.”

It is very difficult to say just what was the nature of this action. No conversion was alleged.

The answer of the plaintiff in error set up the temporary restraining order issued by the Common Pleas Court, and asked to be dismissed.

On June 5, 1933, the conrt consolidated the two cases, over the exception of the plaintiff in error, written in, and the two cases were tried together by the court, a jury being waived in the law case by plaintiff in error.

In the entry of consolidation it was ordered that the cases proceed under Number A36667, the law case number, and the court in this case rendered a judgment in which it states:

“The Court further finds and it is ordered, decreed and adjudged that the plaintiff, General Motors Acceptance Corporation, recover a judgment against the defendant, Midland Acceptance Corporation, in the sum of Seven Hundred and Twenty ($720.00) Dollars, with interest from the 13th day of January, 1932, at 6% per annum, and all costs in both cases, No. A-36122 and A-36667.

“It is further ordered, decreed and adjudged, that upon payment of the judgment herein rendered in favor of the plaintiff, General Motors Acceptance Corporation, the temporary restraining order heretofore issued in A-36122, be dissolved and title to said Buick automobile shall then rest in the defendant, Midland Acceptance Corporation.

“It is further ordered that the defendant, Midland Acceptance Corporation, be and it is hereby required, ordered and directed to credit upon the judgment which it has heretofore obtained against Ed Runk in the Municipal Court of Cincinnati in case ^ 188537 an amount equal to the difference between the judgment herein rendered in favor of General Motors Acceptance Corporation and the value of said car on the date of said wrongful levy in the sum of Seven Hundred Ninety-five ($795.00) Dollars.

“To all of which the defendant, Midland Acceptance Corporation, excepts.”

A motion for a new trial was filed in time, and under the holding in Boedker v. Warren E. Richards Co., 124 Ohio St., 12, 176 N. E., 660, this entry became merely a finding. The final judgment of the court appears therefore in the conclusion of the entry overruling the motion for a new trial, as follows:

“Wherefore it is ordered, adjudged and decreed that plaintiff recover judgment against the defendant for the sum of Seven Hundred and Twenty and no/100 ($720.00) Hollars, with interest at 6% from January 13, 1932, and for costs.

“To all of which defendant excepts.”

An examination- of the record shows that the automobile was in the possession of Runk simply for storage purposes, and that title thereto was in the defendant in error, General Motors Acceptance Corporation.

Several transactions had occurred after the car was sold by Runk, which it is unnecessary to note. There can be no question that Runk has a mere possession of the automobile, and this is, of course, in the absence of fraud or estoppel, insufficient to justify an execution by a creditor of Runk. The levy of execution was, therefore, unquestionably wrongful.

Has the procedure adopted by the court been erroneous and prejudicial to the plaintiff in error?

No motion was made by plaintiff in error to elect which of the inconsistent suits would be tried. It is stated by the .court in the opinion that there was an informal consent to proceed. The papers and record bear out this statement by what they do not contain.

The restraining order should have been dissolved and the injunction proceeding dismissed for the reason that the defendant in error had an adequate remedy at law, and we conclude that this court has power under the circumstances to so order, and such judgment may be presented, at the costs of the defendant in error.

It appears that the final conclusion of the trial court was.to treat the levy as a conversion instigated by the plaintiff in error. It also appearing further in the record that the employees of the plaintiff in error directly participated in the levy, we conclude that in spite of the indefinite and irregular pleading on the part of defendant in error, substantial justice requires us to acquiesce in such conclusion, though we in no way approve the procedure adopted. However, in view of the fact that the restraining order issued in the injunction case prevented the sale by the bailiff, and that it is a matter of common knowledge that depreciation thereupon ensued in the automobile, we further conclude that justice requires that the defendant in error accept a reduction in the judgment, based upon a 40% reduction in the value of the automobile, as found by the trial court. It is obviously unfair to permit the defendant in error to recover the full value of its claim, based upon a conversion of the automobile at a given time, when by the order of the court the plaintiff in error was prevented from realizing upon the proceeds of a sale at such time.

As so modified, the judgment of the Court of Common Pleas will be affirmed as to the amount of recovery of defendant in error, and in the injunction proceeding judgment will be reversed and judgment entered in this court for the plaintiff in error.

Judgments accordingly.

Hamilton, P. J., and Cushing, J., concur.  