Aselage v. Lithoprint, Ltd.Aselage v. Lithoprint, Ltd.
Rendered on the 30th day of December, 2009.
Richard G. Knostman, Atty. Reg. No. 0007212, 4428 N. Dixie Drive, Dayton, OH 45414
Attorney for Plaintiff-Appellee
John W. Herr, Atty. Reg. No. 0032207, 400 S. Main Street, Middletown, OH 45044
Attorney for Defendant-Appellant
GRADY, J.:
{¶ 1} Defendant, Lithoprint, Ltd. (“Lithoprint“), appeals from a garnishment order entered in proceedings commenced by Plaintiff, Thomas C. Aselage.
{¶ 2} On October 1, 2007, Aselage commenced an action against
{¶ 3} On November 7, 2008, Aselage filed an affidavit and order and notice of garnishment of property other than personal earnings in the Dayton municipal court, pursuant to
{¶ 4} Lithoprint requested a hearing and moved to dismiss the garnishment action. The magistrate denied Lithoprint‘s motion to dismiss following a hearing. (Dkt. 11.) Lithoprint filed objections to the magistrate‘s decision, arguing that the amount sought in garnishment, $41,349, exceeds the municipal court‘s monetary jurisdiction, and that the summary judgment on which the
FIRST ASSIGNMENT OF ERROR
{¶ 5} “THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT (JUDGMENT DEBTOR) - APPELLANT IN HOLDING THAT
{¶ 6} Lithoprint‘s assignment of error relies on
{¶ 7}
{¶ 8} “A municipal court shall have original jurisdiction only in those cases in which the amount claimed by any party, or the appraised value of the personal property sought to be recovered, does not exceed fifteen thousand dollars, except that this limit does not apply to the housing division or environmental division of a municipal court.
{¶ 9} “Judgment may be rendered in excess of the jurisdictional amount, when the excess consists of interest, damages for the detention of personal property, or costs accrued after the commencement of the action.
{¶ 10} “This section does not limit the jurisdiction of a municipal court to appoint trustees to receive and distribute earnings in accordance with
{¶ 11}
{¶ 12} “Any judgment or decree rendered by any court of general jurisdiction, including district courts of the United States, within this state shall be a lien upon lands and tenements of each judgment debtor within any county of this state from the time there
{¶ 13} “* * *
{¶ 14} “Notwithstanding any other provision of the Revised Code, any judgment issued in a court of record may be transferred to any other court of record. Any proceedings for collection may be had on such judgment the same as if it had been issued by the transferee court.”
{¶ 15} Lithoprint objected that because the amount of the execution sought exceeds the monetary jurisdiction of the municipal court, the municipal court lacked jurisdiction to order execution in the original action seeking that relief that Aselage filed. The municipal court overruled Lithoprint‘s objection, relying on the final paragraph of
{¶ 16} “The plain meaning (of that section) is that despite any other statutory provision, a judgment from any court of record
{¶ 17} Two other appellate districts have held that the authority conferred by
{¶ 18} We agree with the holdings in Bowling and Transamerica Commercial Finance Corp. Though the judgment on which execution was sought had been granted by and certified from another court of record, the action in which that judgment was granted was not transferred to the municipal court. Rather, the request for execution was relief sought in an action originally filed for that purpose in the municipal court, and
{¶ 19}
{¶ 20} “If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.”
{¶ 21}
{¶ 22} The first assignment of error is sustained.
SECOND ASSIGNMENT OF ERROR
{¶ 23} “THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT (JUDGMENT DEBTOR) - APPELLANT IN FAILING TO HOLD AS A MATTER OF LAW THAT THE DECISION AND ENTRY SUSTAINING IN PART AND OVERRULING IN PART PLAINTIFF‘S MOTION FOR SUMMARY JUDGMENT ENTERED OCTOBER 20, 2008 IN THE MONTGOMERY COUNTY COMMON PLEAS COURT WAS NOT FINAL UNDER
{¶ 24}
{¶ 25} “(A) ‘Judgment’ as used in these rules includes a decree and any order from which an appeal lies as provided in
{¶ 26} “(B) When more than one claim for relief is presented in an action whether as a claim, counterclaim, cross-claim, or third-party claim, and whether arising out of the same or separate transactions, or when multiple parties are involved, the court may enter final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay. In the absence of a determination that there is no just reason for delay, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties, shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject
{¶ 27} The summary judgment the common pleas court granted on Aselage‘s claim for relief did not adjudicate the merits of Lithoprint‘s counterclaims in the action. The common pleas court did not attach the certification that
{¶ 28}
{¶ 29} The October 20, 2008 order of the common pleas court is a non-final, interlocutory order not capable of execution. Therefore, the trial court erred in overruling Lithoprint‘s motion to dismiss.
{¶ 30} The second assignment of error is sustained.
{¶ 31} The judgment of the trial court will be reversed and Vacated.
DONOVAN, P.J. AND FAIN, J., concur.
Copies mailed to:
Richard G. Knostman, Esq.
John W. Herr, Esq.
Hon. Carl Henderson