
    GREEN, Admr. v SULLIVAN et
    Ohio Appeals, 2nd Dist, Franklin Co
    No 3239.
    Decided Feb 26, 1941
    
      MacFadyen, Swisher & Warden, Columbus, for plaintiff-appellant.
    Willard C. Walter, Chillicothe, for defendants-appellees.
   OPINION

BY THE COURT:

We now consider an application for rehearing filed by plaintiff-appellant in this case, subsequent to our decision of July 26, 1940. Since the opinion appellant filed a motion in this court for diminution of the record in the trial court, and on the 5th of February, 1941, this court by order remanded the “cause to the Probate Court so that the trial judge may supply further papers, or entries, if any, which should properly be included in the transcript of docket and journal entries or the bill of exceptions”. Pursuant to this order the Probate Judge has certified seven papers, five of which bear the dates on or before March 11, 1940. The notice of appeal was dated March 11, 1940, and evidently subsequent to the entry of that date. Among the papers which now are made a part of the transcript of docket and journal entries in this case are the following:

March 8, 1940, representation of insolvency filed by the administrator.

March' 8, 1940, finding entry of the court that the estate was probably insolvent.

March 11, 1940, motion of plaintiff to set aside the judgment of the court of February 24, 1940, finding that the defendants, Don Sullivan and Helen Sullivan, doing business as the Southern Ohio Loan Company, have an equitable lien upon certain chattel property therein described, for the reason that since the hearing on said matter this court has found the estate of Luigarde Schmidt to be insolvent.

March 11, 1940, entry of the court overruling said motion and as a part thereof this subject matter is found, “While this court has heretofore found said estate to be insolvent, yet in the opinion of the court this fact does not affect its original decision”.

Notice of appeal was directed both to the order and judgment of February 24, 1940, which found and adjudged that the defendants held a valid and equitable lien by virtue of a chattel mortgage on the property described therein securing a promissory note signed by plaintiff’s decedent in the sum of $500.00, and to the order of the court of March 11, 1940, refusing to set. aside its judgment of February 24, 1940.

By the supplemental papers now made a part of the transcript of the docket and journal entries there is brought onto this record proof that at the time this court rendered its original opinion the Probate Court had theretofore determined that the estate of Luigarde Schmidt, deceased, was insolvent and had acted upon the claim of the appellant that the chattel mortgage of defendants was void in the light of that knowledge.

In our opinion of July 26, 1940, at page 7, after discussing the question presented upon the appeal, we said:

“We are satisfied that in Ohio where the estate is insolvent the administrator represents the general creditors and in their behalf can in any appropriate proceeding attack the validity of a chattel mortgage as to the filing of which the statute has not been observed.”

We cite several Ohio cases in support of the proposition.

Our affirmance of the judgment of the trial court was based entirely upon the premise that the estate of Luigarde Schmidt, deceased, was solvent, and we drew this conclusion from the finding of the trial court upon the original bearing upon the cross-petition of the defendants and the answer thereto.

Inasmuch as it now appears that the estate was insolvent, it follows that our former conclusion was improper. In ^the situation thus presented the motion of the plaintiff of March 11, 1940, to set aside the judgment of the court of February 24, 1940, should have been sustained, and the prayer of the answer of the plaintiff to the cross-petition of defendants “that the note and mortgage of the defendants be declared null and void” should have been granted.

Application for rehearing granted and judgment and order in conformity to this opinion.

GEIGER, PJ., BARNES & HORNBECK, JJ., concur.  