
    Bantell v. Clark et al.
    (Decided July 3, 1933.)
    
      Miss Marie M. Bantell and Mr. I. L. Huddle, for plaintiff in error.
    
      Mr. M. Froome Barbour, for defendant in error Emma Clark.
   Boss, J.

This is a proceeding in error to reverse a judgment of the court of common pleas of Hamilton county, in favor of the defendants, the petition being dismissed.

The action was brought by Marvin Bantell to secure the sale of real estate to satisfy a judgment, and to marshal liens.

Emma Clark, the wife of the judgment debtor, Fred Clark, alone answered, claiming that she had been awarded as alimony a one-half interest in the premises sought to be subjected to the judgment, that she had sold the premises, and that plaintiff in error having issued no execution upon his judgment within one year from the date thereof lost the lien of such judgment as against her judgment for alimony, which intervened.

The evidence is contained in an agreed statement of facts. The sundry incidents necessary to a consideration of the questions here raised are as follows:

October 5, 1926 — Fred Clark secured a judgment against Marvin Bantell before a justice of the peace.

October 26, 1926 — Bantell appealed the case to the court of common pleas.

March 21, 1927 — Court of common pleas rendered default judgment in. favor of Bantell for $300.

April 11, 1927 — First notice to Clark of default judgment.

April 27, 1927 — Clark commenced action to vacate default judgment. Motion for temporary restraining order filed. Agreement of counsel that no execution would be levied on judgment pending proceeding to vacate.

February 6, 1928 — Emma Clark, wife of judgment debtor, commenced action for divorce, division domestic relations, court of common pleas, Hamilton county.

May 31, 1928 — Divorce granted. Undivided one-half real estate involved in this proceeding, awarded as alimony. Shortly thereafter real estate sold to codefendants in error, Holloman and the Dry Bun Estate.

June 18, 1929 — Default judgment in favor of Ban-tell vacated. Affirmed by Court of Appeals.

January 27, 1930 — Judgment in the court of common pleas in favor of Bantell after trial upon merits for $150.

November 5,1930 — Execution issued by Bantell.

January 23, 1931 — Instant suit filed.

It was further agreed between the parties that no execution was issued by Bantell from “18, July, 1929, until November 5, 1930, or approximately two years after Emma Clark had sold the real estate,” now sought to be sold to satisfy Bantell’s judgment. It was further agreed that there was no fraud or collusion between the Clarks or the purchasers of the real estate.

Had the court enjoined execution by Bantell upon his judgment, the solution of the difficulty would be clear, but Bantell voluntarily agreed not to levy execution.

Section 11637, General Code, provides as follows: “A judgment shall not be vacated on motion or petition until it is adjudged that there is a valid defense to the action in which the judgment was rendered; or, if the plaintiff seeks its vacation, that there is a valid cause of action. When a judgment is modified, all liens and securities obtained under it shall be preserved to the modified judgment.”

And Section 11638, General Code, provides that a party may have proceedings upon the judgment suspended when it appears to the court that he is entitled to vacation and modification of the judgment. It was this latter section of which Clark was about to take advantage when Bantell voluntarily agreed not to levy an execution pending a decision of the vacation proceedings.

Section 11708, General Code, provides as follows: “No judgment on which execution is not issued and levied before the expiration of one year next after its rendition, shall operate as a lien on the estate of a debtor to the prejudice of any other bona fide judgment creditor.”

As will be noted from the recital of the facts, supra, Bantell failed for much longer than one year after its rendition to levy any execution upon his judgment, which was rendered March 21,1927, and not suspended until June 18, 1929. In the meantime Emma Clark had become a “bona fide judgment creditor,” and under the provisions of Section 11708, General Code, supra, the judgment of Bantell cannot operate as a lien upon the property in question, formerly owned by Clark, to the prejudice of Emma Clark or her grantees.

No point is made of the fact that Emma Clark was awarded only an undivided one-half interest in the premises in question, or that she sold them. While it is not clear, we presume that she originally owned the other undivided one-half interest in the property, and, therefore, by the alimony decree acquired the entire interest in the property.

It is urged that because the suspension of the default judgment did not affect the lien of Bantell he is entitled now to the relief sought in this proceeding. The very fact is his undoing, for in the absence Of a court order, enjoining him from proceeding, the statute requiring execution within the year was applicable, and his failure to proceed caused him to lose his lien; that of Emma Clark having intervened.

The judgment of the court of common pleas is affirmed.

Judgment affirmed.

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