168 N.E. 216 | Ohio Ct. App. | 1929
In 1923 plaintiff, J.J. Shelley, recovered a judgment of $75 and costs against one Francis R. McBerty before a justice of the peace, and later, by proceedings in aid of execution, garnisheed the North Electric Manufacturing Company, defendant herein, to make good his judgment.
In the proceedings in aid of execution before the justice of the peace, one Davis appeared to answer for the defendant, he being at the time secretary of said company. The bill of exceptions shows by his evidence that the defendant was indebted to the judgment debtor, McBerty, in the sum of $400, and consequently an order was issued on this defendant by the justice of the peace, commanding the company "to pay to plaintiff, the judgment creditor, the sum of _____ dollars, to be applied first to the costs of these proceedings, taxed at _____ dollars, and the balance, _____ dollars, to discharge the judgment." This order being ignored, suit was started by the plaintiff against the defendant to recover the amount of his judgment and costs recovered against McBerty.
The petition does not allege facts sufficient to *381 constitute a cause of action, in that it contains no averment that the garnishee actually owed money to the judgment debtor. But no objection was made to the introduction of evidence at the trial, before the court, a jury having been waived.
The bill of exceptions shows that plaintiff had recovered a judgment of $75 and costs against McBerty; that the defendant here had been duly served as garnishee, and as a matter of fact was indebted at that time to McBerty in the sum of $400.
While the order to pay in, made by the justice, is in ______ dollars, as above indicated, it was in fact an order to pay dollars and cents sufficient to discharge plaintiff's judgment, provided, of course, the garnishee was indebted in that amount to the judgment debtor. The order made by the justice of the peace is not an adjudication between the plaintiff and the garnishee. It is but an assignment of the claim from the debtor to the creditor in attachment, to the amount of his judgment, and is notice to the garnishee that the claim that he owes to the judgment debtor has been assigned to the judgment creditor in an amount equal to his judgment. If he fails to pay into court or to the attaching creditor the amount of the latter's claim, he is liable to him in a civil action.
The proceedings had before the justice of the peace simply authorize the plaintiff in attachment to take the place of the defendant and sue in his own name, if the order is not complied with.
Our interpretation of this order in this case is that it was a notice to the defendant of plaintiff's claim to the amount of the judgment, and that McBerty's credit had been assigned to the plaintiff. *382 Ignoring the order, defendant was liable in this action.
The failure to object to the introduction of evidence made it proper for the trial court to adjudicate the issues supported by evidence, regardless of the pleadings, and it is too late now for the defendant to object to the insufficiency of the petition.Bacon v. Daniels,
Judgment accordingly.
JUSTICE and CROW, JJ., concur.
