
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Sep. Term, 1898.)
    Before King, Haynes and Parker, JJ.
    JUSTY J. DEVEAUX v. FRANK LESLIE.
    
      Proceedings in aid of execution before J. P. — Appeal-
    
      In a proceeding in aid of execution before Justices of the Peace, under the act of April 27, 1896, the judgment debtor is made a necessary party to such proceeding, and an appeal will lie to the court of common pleas from the order of the justice to pay over to the judgment creditor the money found due to the judgment debtor, under see. i of that act, as well as from the judgment in the suit which may subsequently be brought to compel the creditor of the judgment debtor to pay over.
    Error to the Court cf Common Pleas of Lucas county.
   Haynes, J.

This case is here upon a petition in error filed to reverse the judgment of the court of common pleas for dismissing a certain appeal.

The proceedings under which the questions arise here were had under an act passed on April 27, 1896,entitled “An act providing for proceedings in aid of execution before justice® of the peace.” Frank Leslie appeared before John M. Keisyon,- a justice of the peace of Port Lawrence township, and filed an affidavit setting forth that he had procured a judgment against .lusty J. Deveaux, no part of which had been paid, and that the Merchants’ National Bank, of Toledo* Ohio, was liable to said J. J. Deveaux in a certain sum of money, and prceedings under the statute were had, whereby a notice was issued to the bank to appear at a certain time to make answer, and service of notice was also made on the defendant of the time and place when this examination would occur. The bank appeared by Charles C. Doolittle* cashier, who was sworn and testified. The transcript them recites that “May 12, 1897, parties appeared and trial was resumed. Upon hearing the testimony, and arguments of counsel, it is considered by me that the plaintiff have an order of this court upon the Merchants’ National Bank ©I Toledo, Ohio, that said bank forthwith pay unto the plaintiff the sum of $11.87, being the amount of money due said defendant from said bank, as shown by the testimony of its oashier, to be applied, first, to the costs of this proceeding; and the balance, if any, to the discharge of said judgment John M. Kenyon, J. P.” “Notice of appeal given by defendant May 12,1897.” Thereupon an appeal bond was filed on behalf of the defendant and on behalf of the bank, as it appears from the transcript Transcript was filed in the court of common pleas,and thereupon afterwards it appears by the reoord that the bank came and moved that the appeal as'to it be dismissed, which motion was granted, and then the case came on to be heard on the motion of th© plaintiff Frank Leslie “to dismiss the appeal taken in the above entitled action from a certain order made in the court of John M. Kenyon, a justice of the peace in and for Port Lawrence township, Lucas county, Ohio, and the court being fully advised in the premises order that the said appeal be dismissed as to the said Justy J. Deveaux, and aft his costs.” Thereupon he filed this petition in error to reverse the action of the court.

Nc arguments have been filed by counsel in the case on either side. The question stands before us as to whether the court of common pleas erred in dismissing that appeal. It will be observed that the appeal was taken at the close cf thejexamiuation before the justice, and upon the order being made that the money be paid over to the plaintiff. This brings us tc a discussion of the provisions of this act.

The act in substance provides:

“That when a judgment creditor, his agent or attorney, makes oath in writing before the justice of the peace whq rendered the judgment, or before his successor, that the affiant has good reason to believe, and does believe, that any person, partnership or corporation, naming the same, is liable to the judgment .debtor in any sum of money, whether then due or not, and that said money is not exempt from execution or attachment under the laws of the state of Ohio, the justio6 shall order such person, partnership or Corporation, to appear before him at his office at a time and place specified in such order,and answer under oath respecting such liability. ”

The second section provides among other things:

“That the judgment debtor, if found within the county, ' shall be served with notice in writing at least three days before the hearing provided for in the foregoing section, which notice shall then be served like a summons.”

The third provides:

“If the person, partnership, or corporation against whom such order is issued, appear and answer, he shall be examined under oath touching the money for which he is liable as aforesaid, and the justice shall hear any proper evidenoe respecting the same.”

If he fail to appear, it shall be taken that he is indebted.

Section 4 provides:

“If it appear by the admissicn or examination cf the person, partnership or corporation against whom the proceedings are pending, or by other evidence, that such person, partnership or corporation is liable for any money to the judgment debtor, whether sufficient to satisfy the judgment or not,the justice shall order such person, partnership or corporation, tc pay the same to the judgment oreditor to be applied first to the costs of the proceedings, and the balance to'the discharge of the judgment; but if it be shown that such sum of money is net yet due and payable, the order shall be for the payment thereof, at the time when it shall be due and payable, whioh time shall be stated in the order; no order shall be for a sum in excess of suoh judgment and costs.”

Now we come to section 5:

“If the justice shall make an order, pursuant to the preceding section, directing the payment of money by the person, partnership or corporation,against whom the aforesaid proceedings are instituted, and if such person, partnership or corporation fail to comply with said order, the judgment creditor may proceed against suoh person, partnership cr corporation by civil action; and thereupon such proceedings may be hadas in other civil aotions,and judgment may be rendered in favor of the judgment creditor for what shall appear to be owing the judgment debtor by such person, partnership or corporation not exceeding the amount of such order and the costs of the proceedings against suoh person, partnership or corporation. An appeal shall lie from such proceedings to the common pleas court in like oases and manner as from other judgments of the justices of the peace.”

The question is whether the proper construction of that statute is that the appeal only lies from the subsequent suit brought against the person or ccrporation to oompel the payment of the money, or whether it lies from the original order to pay over mentioned in section 4. To me the question is of a good deal of doubt and uncertainty. However, we think there should be a liberal construction of the statute, and my brethern are more dear, I think, than I am, that the judgment of the court of oommon pleas should be reversed.

It will be observed, if this civil action is brought the judgment will be rendered in favor of the judgment creditor for what shall appear to be ewing to the judgment debtor— not for w.hat the court shall order to be paid, but what shall then appear to be owing to the judgment debtor. The real question is, it seems to me,whether this original proceeding is of such a character that it is brought within the terms of the provisions for the appeal. It will be noticed that the entire act is denominated “proceedings in aid of execution”. It is a proceeding from beginning tc end; it is a proceeding from the time that it commences down to the time when the order is made that the sum found to be owing from the person or corporation is to be paid over on the judgment originally taken, as well as the proceeding had afterwards in the nature of a civil action tc compel the payment

One very material question, it seems to me,is whether this order is a final order; whether it is an order that can be contested afterwards in a civil action. It is true that upon the order being made, the judgment debtor or the person who is called in, corporation or party, can pay this money over to the original plaintiff in the judgment. I suppose that that payment would conclude the judgment debtor.

It will be noticed in this case that the judgment debtor is made a party to the original summons. It would seem that he would be bound by that examination, so long as he is made a party and brought before the justice, and that if payment is made by the party who is brought in,that would out him-off from ever contesting that question afterwards. We think, giving a liberal construction to the statute, that we ought to hold that the right of appeal will lie from the original order as well as from the final judgment which was made. If a suit should be brought as another civil action, and a judgment rendered in that case,.then an appeal would lie. It would lie under the original appeal act, being a final order before a justice of the peace, and it would seem to be unnecessary to inlroduce this clause in regard to appeals unless it was intended tc have a further application than a mere application to an appeal from that final order.

We sought to find some light in regard to the question, if possible, from decisions of the supreme court. We find only one case — Welch v. Pittsburgh, Ft. Wayne & Chicago R. R. Co., 11 Ohio St., 569. There the question was taken up on error, no exception or bill of exceptions having been taken. The syllabus of this case is:

B. F. Reno, for Plaintiff in Error.

Lewis B. Hall, for Defendant in Error.

“Where in a proceeding before a judge, under section 464 of the code,to examine a person alleged to have in his hands property belonging to the judgment debtor, an order is made, after the examination, discharging such person as having no property in his hands subject to the satisfaction of the judgment; without some exception taken at the time, and some step to suspend the effect of the order, and on a petition in error to which the judgment debtor alone is a party, the action of the judge cannot- be reviewed.
“Whether such proceeding is not merely ex parte and preliminary, and net subject to review on error — quere?”

But in this proceeding, the proceeding had in that court, it was not necessary to make the judgment debtor a party, although he might be made a party. In the present proceeding he must be made a party.

We have examined some of the decisions made under the garnishee proceedings and attachment, but those cases are different from this, because the supreme court has held that the party garnisheed is not properly a party to the suit. If he comes in and makes answer after the suit, the plaintiff in the original action then has his defense,and has the right to defend and set up all the defenses he may have against the alleged obligation to pay money to the plaintiff in the original action. Upon that theory, I say those cases shed very little light upon this question; but from the fact that they have seen fit to introduce this clause out of an abundance of caution, or else out of a determination to give him a full right of appeal, we hold, as I have stated already, that the better view of the case is that the party had a right to appeal at the time he did appeal in the present case.

Therefore the judgment of the court of common pleas will be reversed, and the oase remanded for further proceedings.  