
    PROCEEDING IN AID OF EXECUTION.
    [Cuyahoga (8th) Circuit Court,
    June 26, 1905.]
    Marvin, Winch and Henry, JJ.
    Sidney S. Wilson Co. v. Cleveland Elec. Ry.
    Justice’s Oedee in Proceedings in Aid op Execution not a Final Adjudication. The order of a justice of the peace in favor of the plaintiff in a proceeding in aid of execution brought under the provisions of Rev. Stat. 6680-1 to 6680-5 (Lan. 10264 to 10268), merely operates as an assignment to him of the judgment debtor’s rights: hence, in a subsequent suit against the debtor of the judgment debtor, based on such order, plaintiff must set forth not only the proceedings by virtue of which he obtained the assignment of the judgment debtor’s claims, but also a statement that the defendant in the latter action, as a matter of fact, was indebted to the judgment debtor at the time of the first service in the prior proceeding.
    [Syllabus approved by the court.]
    ERROR to Cuyahoga common pleas.
    J. H. Smart, for plaintiff! in error.
    Squire, Sanders & Dempsey and Wood, Hitchcock & Morgan, for defendant in error:
    Upon the question whether the order made by the justice in the proceeding in aid of execution is a final order. Duffey v. Bear don, 70 Ohio St. 328 [71 N. E. Rep. 712] ; Hammock v. Bank, 6 Circ. Dec. 105 (9 E. 139); Barbour v. Boyce, 9 Dec. 332 (6 N. P. 425) ; Secor v. Witter, 39 Ohio St. 218.
   WINCH, J.

Plaintiff having procured a judgment against one Phelps, brought proceedings in aid of execution before a justice of the peace, under favor of Rev. Stat. 6680-1 to 6680-5 (Lan. 10264 to 10268) inclusive, and caused defendant to be ordered to appear before said justice on a day specified, and answer whether it was liable to said Phelps in any sum of money.

The defendant disregarded said order and neglected to appear and answer, whereupon the justice proceeded as if defendant had admitted money to be in its hands sufficient to satisfy said judgment and costs, and ordered defendant to pay the same to plaintiff to be applied according to law.

Defendant failed to comply with said order, whereupon plaintiff proceeded against it by civil action, and the case being appealed to the common pleas court, plaintiff filed a petition therein fully reciting said proceedings in aid of execution and the order therein made that defendant pay a certain sum to defendant and concluding with the averment, “by reason of the premises there is due and payable from said defendants to this plaintiff the sum of $284.91 with interest thereon from the third day of January, 1905,” and a prayer for judgment in said amount.

To this petition defendant demurred and the court sustained said demurrer on the ground that the petition was deficient, in that it failed to allege that defendant was in fact liable in any sum of money to said Phelps, at the time it was first ordered to appear and answer with reference, thereto.

Thereupon, plaintiff not desiring to plead further, judgment was rendered against it and the case brought here for review.

Plaintiff contends that the order made by the justice requiring defendant to pay a certain sum of money to plaintiff is a final order, and, standing unreversed, is conclusive between the parties to this suit. Were such the case the petition would doubtless be sufficient.

While we have no decision of the Supreme Court upon the subject, the following appears as obiter in. the opinion by Judge Price in the case of Duffey v. Reardon, 70 Ohio St. 328, 333 [71 N. E. Rep. 712]:

“As to the person, partnership or corporation cited to appear and answer in such proceeding, it appears from this section that the order of the justice of the peace, is not a final order, precluding further inquiry or proceedings. The party may decline to obey the order of the justice, and in such case the judgment creditor may resort to a civil action against him, in which any proper defense may be set up by answer.”

The learned judge then calls attention to the similarity of the provisions of the statutes regulating proceedings in aid of execution and attachment and garnishee proceedings.

Comparing Rev. Stat. 6680-5 (Lan. 10268), which authorizes the action here brought, with Rev. Stat. 5551 (Lan. 9080), which authorizes a similar action in event a garnishee refuses to answer, we see that they are so much alike that they may be said to be identical as to the form of action provided for.

The law regarding garnishees has been construed by the Supreme Court in the case of Secor v. Witter, 39 Ohio St. 218, and, because of the similarity of the two statutes, we are led to the conclusion that language used by Judge Johnson on page 231 of the opinion of that case, is applicable to the ease at bar, makes clear the relation of the parties to each other and thereby settles the question here raised. Says Judge Johnson:

“The order made by the justice is not an adjudication between the plaintiff and the garnishee. It does not determine their ultimate rights. In legal effect it is only an assignment of the claim from the debtor to the creditor in attachment. If the garnishee fails to appear and answer, or if his answer is not satisfactory, or if he does not comply with the order, he is liable to an action, ‘as in other eases.’ In such an action, he is a party entitled to his day in court, and the final' determination of that action is a judgment either charging or discharging him. * * * This statutory order simply authorizes the plaintiff in attachment to take the place of the defendant, and sue in his-own name, if the order is not complied with.”

This conception of the relation of the parties, applied to the situation • here, leads to the conclusion that the plaintiff, by virtue of the order of the justice, has merely stepped into Phelps’ shoes and has the same rights, no greater and no less, to prosecute an action against the defendant to recover from it the money, if any, which it owes Phelps.

This conclusion arises naturally in the case of proceedings in aid of execution, by reason of the provisions in Rev. Stat. 6680-5 (Lan. 10268) to the effect, that,

“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 costs,” etc.

If the judgment creditor merely takes the place of the judgment debtor when he brings suit against one owing the latter, it follows that his petition must set forth not only the proceedings by virtue of which he has obtained an assignment of the debtor’s claims but also a statement that the defendant was in fact indebted to the judgment debtor at the time it was first served with the order in aid of execution.

The common pleas court having taken this view of the case, its judgment is affirmed.

So far as this ruling is in conflict with the opinion of this court in the case of Carlin v. Hower, 24 O. C. C. 153, that case is overruled.

Marvin and Henry, JJ., concur.  