440 N.E.2d 1207 | Ohio Ct. App. | 1981
Plaintiff-appellee filed a foreclosure action to sell real estate owned by defendant-appellant and located in Franklin County, Ohio, for the purpose of satisfying a judgment lien resulting from a money judgment against defendant-appellant, after which a certificate of judgment was filed pursuant to R.C.
A motion for summary judgment was filed on behalf of plaintiff-appellee, supported by affidavits and documents. The trial court granted summary judgment and Carol Rogers has appealed, setting forth the following assignment of error:
"The trial court erred in ruling that plaintiff-appellee was entitled to summary judgment as a matter of law, and in thereby ruling that he was entitled to enforce his judgment for the payment of money other than as provided by law and as required by Ohio Rul. Civ. P. 69."
There are no disputed facts. The question is strictly a matter of law.
On May 18, 1979, plaintiff-appellee obtained a judgment against defendant-appellant in the amount of $5,513.75 in the Court of Common Pleas of Franklin County. On the same day, plaintiff-appellee caused a certificate of judgment to be filed in the office of the Clerk of the Court of Common Pleas of Franklin County pursuant to R.C.
On October 28, 1980, plaintiff-appellee filed a motion for summary judgment, properly proving the facts previously outlined. At that time, defendant-appellant raised for the first time the fact that plaintiff-appellee had not issued a writ of execution.
The trial court granted the motion for summary judgment.
R.C.
"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 is filed in the office of the clerk of the court of common pleas of such county a certificate of such judgment, setting forth the court in which the same was rendered, the title and number of the action, the names of the judgment creditors and judgment debtors, the amount of the judgment and costs, the rate of interest, if the judgment provides for interest, and the date from which such interest accrues, the date of rendition of the judgment, and the volume and page of the journal entry thereof."
The issue is whether the judgment lien acquired by plaintiff-appellee when he filed the certificate of judgment in the office of the clerk of the court of common pleas may provide the basis for foreclosure and sale of Rogers' real estate in Franklin County.
Plaintiff-appellee foreclosed pursuant to R.C.
"When a mortgage is foreclosed or a specific lien enforced, a sale of the property shall be ordered."
Defendant-appellant argues that the lien which arose from the filing of the certificate of judgment in the office of the Clerk of the Court of Common Pleas of Franklin County was a general rather than a specific lien upon her real estate and thus, R.C.
R.C.
Defendant-appellant further argues that the only process that plaintiff may use to enforce his money judgment is a writ of execution, relying upon Civ. R. 69, entitled "Execution," which states, in relevant part, as follows:
"Process to enforce a judgment for the payment of money shall be a writ of execution, unless the court directs otherwise. The procedure on execution, * * * shall be as provided by law. * * *"
Defendant-appellant then argues that the "procedure" referred to in Civ. R. 69 is the procedure set forth in R.C. Chapter 2329. R.C. Chapter 2329, which provides a method for securing execution against the property of a judgment debtor, requires that a writ of execution first be directed against the goods and chattels of the debtor and, if no goods or chattels can be found, then against the lands and tenements of the debtor. (R.C.
The Revised Code provides two alternative methods of enforcing a judgment. The first method is to foreclose directly upon the real property of the debtor located in the county where the certificate of judgment is filed based upon the specific lien thereby acquired and R.C.
Civ. R. 69 was adopted by the Ohio Supreme Court, pursuant to Section
Defendant-appellant's assignment of error is overruled and the judgment of the trial court is affirmed.
Judgment affirmed.
REILLY and NORRIS, JJ., concur.