
    The Prudential Ins. Co. of America v. Goodman et al., Trustees, et al.
    (Decided May 27, 1935.)
    
      Mr. John D. Andrews, for plaintiff in error.
    
      Messrs. Shank & Shank, for defendants in error.
   Ross, P. J.

This is a proceeding in error to reverse a judgment of the Court of Common Pleas of Butler county, Ohio, wherein that court sustained a demurrer to the petition, and rendered judgment for the defendants, John Goodman and C. A. Kumler, trustees.

The final entry does not recite that the plaintiff did not care to plead further; however, as the plaintiff below is the plaintiff in error here it may be considered to have waived the right to so plead. As plaintiff in error also makes no point of this defect, the matter will he passed without further comment.

The plaintiff states in its petition, for a first cause of action, that the defendant Arthur B. Hunter owes it the sum of $12,000, with interest, upon a promissory note now due and payable, of which it is the holder and owner, and that Merrill Gr. Hunter assumed for a consideration to pay such note.

For a second cause of action, plaintiff states that Arthur B. Hunter at the time of the execution and delivery of such note executed and delivered a mortgage upon certain described real estate; that the condition of the mortgage has been broken; that the same was properly recorded, and that the taxes upon such real estate are unpaid.

Plaintiff further avers that Arthur B. Hunter, after the execution of such note and mortgage, conveyed such real estate to Merrill Gr. Hunter, subject to such mortgage, and that thereafter this grantee and his wife conveyed -such mortgaged premises to Ben. A. Binkley, assignee for the benefit of the creditors of Arthur B. Hunter, that the deed to Merrill Gr. Hunter was dated December 7, 1932, and the deed to Bickley, assignee, was made September 14, 1933. •

The plaintiff further alleges “that the rents and income of said real estate are not being collected, or, if collected, are not being applied to paying said taxes or to paying this plaintiff in accordance with the terms in said note and mortgage, or to paying other lien holders on said real estate, and that the sale of said real estate will probably be insufficient to discharge the mortgage debt of this plaintiff, the claims of other lien holders, and said taxes, and that a receiver should be appointed to take charge of said real estate and to collect the rents and income therefrom and hold the same subject to the order of this court.”

The prayer is for judgment for the amount of the note and interest, the amount of unpaid taxes and interest, sale of the mortgaged premises, appointment of a receiver, and the adjustment of priorities of liens.

The court sustained a demurrer to this petition, and the defendants were dismissed.

Obviously, there had been an assignment by Arthur B. Hunter to Ben. A. Bickley, for the benefit of the creditors of Arthur B. Hunter.

The plaintiff suggests that there is no allegation in the petition that the real estate was included in the deed of assignment, or that the deed of assignment was filed in the Probate Court and Recorder’s Office, or that the assignee had properly qualified, and that all of such facts must exist in order to oust the Common Pleas Court of jurisdiction in the premises.

The exact and only allegation of the petition suggesting an assignment by Arthur B. Hunter is as follows:

“Plaintiff says that said Arthur B. Hunter, after the execution of said note and mortgage and on or about December 7, 1932, conveyed said premises herein described to Merrill Gr. Hunter, but subject to -the mortgage lien of this plaintiff and thereafter said Merrill Gr. Hunter and his wife conveyed said premises to the defendant Ben A. Bickley, Assignee for the benefit of the créditors of Arthur B. Hunter, said conveyance being on or about September 14, 1933, and same being subject to the mortgage lien of this plaintiff.”

While generally speaking the Probate Court has full and complete jurisdiction of assignments made for the benefit of creditors, this court cannot assume that those preliminary matters necessary to regularly invest the Probate Court with jurisdiction have occurred. The demurrer should have been overruled. The position of the defendants could have been properly raised by answer alleging fully the facts establishing jurisdiction of the Probate Court. A demurrer to the answer would then effectively present the question now sought to be presented.

The assignment having occurred prior to the filing of this suit it is difficult to imagine any circumstances which will give the Court of Common Pleas jurisdiction if the preliminary steps necessary to invest the Probate Court with jurisdiction have taken place. 3 Ohio Jurisprudence, 403 et seq.; Peoples Bldg. & Sav. Co. v. Whorley, 15 Ohio Law Abs., 690; Madigan v. Dollar Bldg. & Loan Co., 49 Ohio App., 69, 195 N. E., 250; Southard v. Prudential Ins. Co., 15 Ohio Law Abs., 457.

Certainly nothing that has been suggested by the plaintiff, exclusive of the allegation noted, would be sufficient to give the Common Pleas Court jurisdiction in the premises.

The judgment of the Common Pleas Court must be reversed and the case remanded for further proceedings in accordance with law.

Judgment reversed and cause remanded.

Matthews and Hamilton, ,JJ., concur.  