
    The Pettit Bros. Hardware Co. v. City of Akron et al.
    
      Execution — Proceedings in aid — Present liability to judgment debtor necessary — Claim must be fixed obligation, without reference to future contingencies.
    
    1. In a proceeding in aid of execution, a present liability to the judgment debtor is necessary in order to render the ' proceeding of any avail to the party prosecuting the same.
    2. The liability or debt which may be reached by proceedings in aid of execution is a claim which, whether due or to become due in the future, is nevertheless a fixed obligation, which the debtor must ultimately pay, without reference to future contingencies — -not a claim which, upon the happening of a future event that may or may not happen, may become a debt which must be paid.
    (Decided December 7, 1925.)
    Error: Court of Appeals for Summit county.
    
      Messrs. Holloway & Chamberlain, for plaintiff in error.
    
      Mr. H. M. Hagelbarger, director of law, Mr. W. A. Kelly and Messrs. Mussér, Kimber & Huffman, for defendants in error.
   Washburn, J.

This case was submitted in the court below upon an agreed statement of facts, by which it appears that one Rowland was indebted in 1920 to the Pettit Bros. Hardware Company for merchandise purchased; that in 1923 the city of Akron entered into a contract with Rowland, by which the latter agreed to furnish the materials and construct a sewer for the city, and the city agreed to pay Mm therefor a certain sum, payments to be made as the work progressed, such payments being 90 per cent, of the engineer’s monthly estimate of the work done, the 10 per cent, of the estimate withheld being payable only upon the completion and acceptance of the work; that after several of such monthly payments had been made and while 10 per cent, of said estimates was being withheld by the city in accordance with the contract, and when 90 per cent, of all the estimates made had already been paid, said hardware company, having reduced its claim against Rowland to judgment, sought by a proceeding in aid of execution to appropriate to the payment of its judgment the money due Rowland from the city under the contract.

An order, as provided in Section 10436, General Code, was made and served upon the city in accordance with Section 10437, General Code, and the city answered that at the time of the service of the order it was not liable to said Rowland in any sum whatever. At the time of making such answer, Rowland had abandoned the contract and had assigned all of his rights thereunder to his surety, who thereafter, by and with the consent of the city, completed the unfinished work under the terms of the contract; and the cost of the completion of the contract, together with the sums paid Rowland on estimates, far exceeded the contract price for the work, but nevertheless the court, in the proceedings in aid of execution, ordered the city to pay the claim of the hardware company against Rowland. The city, of course, refused to comply with such order, and this suit was begun to recover a judgment against the city for the amount specified in the order. The trial in the lower court resulted in a judgment in favor of the city.

In our judgment, a correct result was reached in the trial of this case in the court below.

If, when such order was served upon the city, it was not then liable to Rowland, no order could properly be made against the city requiring it to pay the claim of the hardware company. If the city was not liable to Rowland in some amount at the time it was served with the order, it is difficult to see how the city could be made liable in any amount to the hardware company in a proceeding in aid of execution. In proceedings in aid of execution, a present liability to the judgment debtor is necessary in order to render the proceedings of any avail to the party prosecuting the same. At the time of the service of this order, the city had paid to Rowland everything that was then due him under the contract, and whether or not there would be anything further due him under the contract depended entirely upon the contingency of his completing the work according to the terms of the contract.

It is true that the statute applies to a liability to the judgment debtor “whether then due or not,” but a sum payable upon a contingency is not such a liability; it is not a debt and does not become such until the contingency has happened.

The liability or debt which may be reached by proceedings in aid of execution is a claim which, whether due or to become due in the future, is nevertheless a fixed obligation, which the debtor must ultimately pay, without reference to future contingencies — not a claim which, upon the happening of a future event that may or may not happen, may become a debt which must be paid. If the debtor has a claim not yet payable, but which must be paid when a certain time elapses, there is a liability such that his creditor may, by proceedings in aid, acquire the rights of the debtor in the claim.

The view we have expressed renders immaterial the fact that the work was actually completed according to the contract. At the time of the service of the order it was not certain that the contract would be completed; nothing was then due Rowland; there was no certainty that anything would ever become due him; therefore there was no liability or claim which could be reached by a proceeding in aid of execution. City of Newark v. Funk & Bro., 15 Ohio St., 462; Kouns v. Reiniger, 3 C. C., (N. S.), 664; Ohio Auxiliary Fire Alarm Co. v. Heisley, 7 C. C., 483; Secor v. Wittier, 39 Ohio St., 218.

But the facts in this case do not warrant the conclusion that anything became due Rowland by reason of the completion of the contract by his surety. The order requiring the city to pay the hardware company claim was not made in pursuance of an answer of the city admitting that it then owed Rowland, and such order so made did not operate as an assignment of Rowland’s interest in said contract, except to authorize the hardware company to sue to establish the legality of such ofder; but the court making the order did not and could not then determine the ultimate rights of the parties. The contract was not completed by Rowland; he defaulted, and it became necessary for his surety to complete the contract — not for the purpose of aiding Rowland, but for the purpose of saving itself from a greater loss than it suffered by having to complete the contract. We do not regard the circumstances as warranting the finding that Rowland completed his contract or was in any sense entitled to the benefit of the completion of the contract by his surety. Nothing was due him from the city at the time the city was served with the order to appear and answer, and nothing is now due from the city.

Judgment affirmed.

Pardee, P. J., and Punk, J., concur.  