468 N.E.2d 373 | Ohio Ct. App. | 1983
These companion cases are before the court on appeal from a judgment of the Bryan Municipal Court. Since these cases involve the same facts and raise identical legal issues, they will be treated together for the purposes of this appeal.
The pertinent facts are not in dispute. Appellant, Toledo Edison Company, initiated small claims proceedings against defendants-appellees in Bryan Municipal Court, seeking to collect on their unpaid accounts for electrical services. Appellees failed to appear and defend after having received proper service of summons on the complaints. The trial court thereafter rendered default judgments against each appellee. Judgment was rendered against Allen on November 16, 1982, and against Barbee fourteen days later on November 30th.
On February 14, 1983, appellant filed motions in both cases to have the judgment debtors (appellees) examined. The trial court granted these motions on February 15, 1983. The record indicates that, on February 17, Allen was personally served with a copy of the motion and a notice of a hearing scheduled for March 9. On February 23, Barbee received a copy of the same motion and, also, notice of the March 9 hearing.
Both appellees failed to appear at the March 9 hearing. Appellant then filed motions for a show cause hearing. The trial court granted these motions and scheduled a show cause hearing for April 5, 1983. The record indicates that each appellee received personal service on the show cause motion and notice of the hearing. Each appellee also failed to appear at this hearing.
On April 11, 1983, appellant filed praecipes requesting arrest warrants for appellees because they failed to appear at the previous hearings. The praecipes were filed pursuant to R.C.
"On motion of Plaintiff [appellant] for Debtor's Examination, the Court finds that it is without jurisdiction to proceed by reason of Ohio Revised Code Section
The trial court's orders, in their practical effect, dismissed the actions. In *110 bringing this consolidated appeal, appellant presents the following "assignments of error" for our review1:
"I. Whether a Municipal Court has both subject matter and procedural jurisdiction to enforce its judgments through proceedings in aid of execution?
"II. Whether a Municipal Court has a mandatory duty to enforce its orders for appearance of judgment debtors for examination, by warrant following appropriate motion by a party creditor?"
The statutory procedure involved here is part of the summary process provided by law for enforcing judgments. The particular factual context presented by these cases narrows our review to the issue of a municipal court's jurisdiction (or, more properly, its power) to fashion and enforce orders in aid of execution proceedings.
Generally speaking, a judgment creditor is entitled, at his pleasure, to invoke existing supplemental procedures to satisfy a judgment, wherein his rights against the judgment debtor were declared. See 40 Ohio Jurisprudence 3d (1982) 622, Enforcement and Execution of Judgments, Section 486; Sam Savin, Inc. v.Burdsal (1939),
For courts of common pleas, R.C. Chapter 2333 sets forth various "proceedings in aid of execution." R.C.
Our analysis of the pertinent statutory sections convinces us that under R.C. Chapter 1901, municipal courts enjoy as broad a set of jurisdictional powers to make and enforce orders in aid of execution proceedings as do courts of common pleas under R.C. Chapter 2333. In fact, and as a general rule, in the absence of special procedure to the contrary in R.C. Chapter 1901, municipal courts, in aid of execution proceedings, have the power to issue all necessary orders for which similar power and authority is conferred upon the courts of common pleas under R.C. Chapter 2333.
R.C.
"In any action or proceeding of which a municipal court has jurisdiction, the court or any judge thereof has power:
"(A) To issue process, preserve order, and punish contempts, * * * and to exercise such other powers as are necessary to give effect to the jurisdiction of the court and to enforce itsjudgments, orders, or decrees;
"(B) To issue any necessary orders in any proceedings before and after judgment, for * * * arrest, aid of execution, * * * for which authority is conferred upon the courts of common pleas or a judge thereof, * * *;
"(C) * * *
"(D) To control and distribute all property or the proceeds thereof, levied upon or seized by any legal process issuing from the court, which may come into the hands of its officers and to order immediate sale of any property of a perishable nature which may come into the hands of an officer of the court upon any process issuing from the court. * * *" (Emphasis added.)
R.C.
"Subject to * * * [its monetary jurisdiction], a municipal court has regional jurisdiction within its territory:
"* * *
"(B) In any action or proceeding at law for the recovery of money or personal property of which the court of common pleas has jurisdiction;
"* * *
"(E) In any action or proceeding to enforce the collection ofits own judgments, or the judgments rendered by any court within the territory to which such municipal court has succeeded, and tosubject the interest of a judgment debtor in personal property tosatisfy judgments enforceable by the municipal court[.]" (Emphasis added.)
R.C.
"Subject to * * * [its monetary jurisdiction], a municipal court * * * [has] jurisdiction within the limits of the county or counties in which its territory is situated:
"(A) To compel attendance of witnesses in any pending actionor proceeding, the same as the court of common pleas;
"(B) To issue executions on its own judgments;
"(C) In any action or proceeding, whether legal or equitable,to enforce the collection of its own judgments;
"* * *
"(E) To issue and enforce any order of attachment;
"(F) In any action or proceeding in the nature of creditors' bills, and in aid of execution to subject the interest of ajudgment debtor in personal property to the payment of a judgmentof the court[.]" (Emphasis added.)
In addition to the foregoing statutory provisions, R.C.
"In any civil case or proceeding if no special provision ismade in sections
R.C.
As R.C.
Accordingly, we hold that the trial court committed error prejudicial to appellant in overruling its motions for examination of the judgment debtors (appellees herein) and, by implication, in denying appellant's praecipes for the issuance of arrest warrants to secure their attendance. Consequently, appellant's "assignments of error" are well-taken.
On consideration whereof, the judgments of the Bryan Municipal Court are hereby reversed. These cases are remanded to said court for further proceedings consistent with this opinion and *113 for assessment of costs. Costs assessed against appellees.
Judgments reversed.
DOUGLAS and RESNICK, JJ., concur.
"* * * The proceedings here under review are a part of the process provided by the law for the enforcement of judgments. They are in aid of execution and cannot be withheld at will any more than the writ of execution itself. Having obtained the judgment of the court declaring its right, the plaintiff is entitled, at its pleasure, to the processes of the law to make effective the declared right.
"The [in aid of execution] statutes provide the circumstances under which, and the method by which, a stay may be obtained; and, perhaps, a court has power in the absence of a statutory authorization to grant a stay for a limited period, but all the cases hold that some sound reason must exist for withholding from a judgment creditor, even temporarily, the aid of the state in the enforcement of his judgment. * * *
"`While the power to temporarily stay execution on its judgments resides in every court, it must be conceded that it is a power that ought to be cautiously exercised, and only in those cases where it seems necessary to promote the ends of justice. In other words, it ought not to be arbitrarily used, nor should an execution be withheld merely because it is inconvenient for a judgment debtor to pay his debts.'" (Citations omitted.)