
    DONENFELD’S, INC v GERDES, etc
    Ohio Common Pleas, Montgomery Co
    No 75521.
    Decided Jan 19, 1933
    A. W. Schulman, Dayton, contra.
    W. S. Rhotehamel, Dayton, for motion.
   SNEDIKER, J.

We take judicial notice of this condition from the proceedings which have been had in this court and we think we are justified in considering them in connection with this motion which is before us on appeal, or de novo. It will be apparent, therefore, that not only was this money in custodia legis at the time of issuing the. writ of garnishment, but the plaintiff is endeavoring to involve the state of Ohio in litigation, which cannot be done without its consent; and no such consent has ever been given.

It is our opinion, therefore, that this motion ought to be sustained, for the reason that the magistrate’s court has no jurisdiction to serve the superintendent of banks or to make an order against him for the payment of the money.

The motion is sustained.  