196 N.E. 425
No. 25158Supreme Court of Ohio.
Decided June 12, 1935.
Executions — Plaintiff misnamed, but judgment identified — Execution irregular, but not void, and lien lost, when — Sheriff liable for failure to index in foreign execution docket, when.
1. An execution which misnames the plaintiff, but correctly names the defendants, and by its terms identifies the judgment upon which it is issued, is not void, but only irregular or erroneous.
2. Where such an irregular execution is issued by the clerk of the Common Pleas Court to another county of the state, and the sheriff to whom it is directed levies upon real property of the judgment debtor but fails to index the execution and levy in the name of the latter, and through a sale of such real property thereafter by the judgment debtor to an innocent
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purchaser buying in good faith, the execution lien is lost, the judgment creditor, suffering damage thereby, no direct attack having been made on the judgment, may maintain an action against the sheriff and his bondsmen for negligence in failing to index in the foreign execution docket, in the name of the judgment debtor, the case in which the execution is issued, as required by Section 2837, General Code.
ERROR to the Court of Appeals of Ashland county.
An original action was begun in the Court of Common Pleas of Ashland county, Ohio, by the First National Bank in Wellington, as plaintiff, against Clem V. Hassinger, sheriff of Ashland county, and the Fidelity Deposit Company of Maryland, surety on the sheriff’s bond, and against Mabel Marsh, clerk of courts of Lorain county, and A.B. Taylor and S.H. Squire, sureties on the bond of the clerk. The clerk and her sureties were dismissed from the case on application of plaintiff after the court had sustained their demurrer to the petition; thenceforth, they did not figure in the litigation. The defendant Fidelity Deposit Company of Maryland also filed a demurrer to the petition, and on hearing this demurrer was sustained on the ground that the petition did not state facts which show a cause of action against such defendant “since the misnomer in the execution rendered the process void”, and the plaintiff, not desiring to plead further, judgment was entered against him. Proceedings in error were prosecuted to the Court of Appeals, in which proceedings the First National Bank in Wellington was plaintiff in error and Clem V. Hassinger and the Fidelity Deposit Company of Maryland were defendants in error. The court on hearing affirmed the judgment and this proceeding in error is hereon order of certification by this court.
The petition alleges that the plaintiff is incorporated
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as a national bank, that Clem V. Hassinger was the duly elected and qualified sheriff of Ashland county for a term of two years from January 1, 1927, and that he gave bond for $20,000 with the Fidelity Deposit Company of Maryland as surety. The following allegations are quoted therefrom verbatim:
“On the 20th day of December, 1928, in an action brought in the Common Pleas Court of Lorain County, Ohio, by the plaintiff herein against J.H. Houghton and Chas. D. Houghton, numbered 27272 on the docket of said Court, plaintiff recovered a judgment against the said J.H. Houghton and Chas. D. Houghton for the sum of Twelve Hundred and Sixty-nine and 53/100 Dollars, with interest on said judgment at the rate of eight per centum per annum and costs of suit.
“On the 20th day of December, 1928, the plaintiff duly ordered the Clerk of Courts of Lorain County, Ohio, to issue an execution against the property of J.H. Houghton and Chas. D. Houghton to the Sheriff of Ashland County, Ohio, and that the plaintiff deposited with said Clerk the fees for the Sheriff of Ashland County as required by law. On the 20th day of December, 1928, the Clerk of Courts of Lorain County, Ohio, issued said execution to the Sheriff of Ashland County, Ohio.
“In making out the execution to send to the Sheriff of Ashland County, Ohio, the defendant, Mabel Marsh, negligently inserted the name of The First Wellington Bank instead of this plaintiff, the First National Bank in Wellington, and negligently sent such execution to the Sheriff of Ashland County, Ohio.
“The defendant, Clem V. Hassinger, as Sheriff of Ashland County, Ohio, received said process on the 21st day of December, 1928, and no personal property being found, levied upon the real property of the said J.H. Houghton in said County of Ashland, Ohio, said land levy being recorded in the Foreign Execution Docket of Ashland County, Ohio, in Vol. 3, page 118.
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“Said defendant, Clem V. Hassinger, failed and neglected to index said execution and levy in the index of the defendants in the Foreign Execution Docket as provided by law, under the name of Houghton; that on the 4th day of March, 1930, the defendant, J.H. Houghton, sold the aforesaid property to Charles H. Davidson, and that on March 22, 1930, Charles H. Davidson executed a mortgage to the Savings Loan Bank of New London to secure his loan of that date in the sum of $1500.00; whereby in an action brought by this plaintiff against Charles H. Davidson and the Savings Loan Bank of New London, it was decreed that they were innocent purchasers for value without notice and this plaintiff thereby through the aforesaid failure to index lost its lien on the aforesaid property.
“Plaintiff further says that there has been paid on the principal the sum of $160.35, and payments on the interest in the sum of $166.18, and that there is due and unpaid on said judgment the balance of $1106.65, and interest from June 1, 1930 at eight per centum and costs of suit taxed at $25.39.”
It also alleged in the petition that the clerk negligently issued the execution in the name of The First Wellington Bank instead of the name of this plaintiff.
Plaintiff further avers that it has been damaged in the sum of $1106.65 and costs of suit taxed at $25.39 and prays judgment for $1132.04 with interest.
Mr. Harry W. Wagner and Mr. Robert J. Vetter, for plaintiff in error.
Messrs. Devor Devor, for defendants in error.
WILLIAMS, J.
In brief plaintiff’s contention is that it had a judgment against J.H. Houghton and Charles D. Houghton on the records of the Court of Common Pleas of Lorain county, Ohio; that on its order the clerk of that county issued an execution on that judgment to the Sheriff of Ashland county, Ohio; that the
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clerk had made out the execution but instead of inserting the name of the plaintiff as judgment creditor inserted the words, The First Wellington Bank; that the defendant, Clem V. Hassinger, sheriff of Ashland county, Ohio, received the execution December 21, 1928, and no personal property being found, levied upon the real property of J.H. Houghton in Ashland county and recorded the levy in the foreign execution docket but failed to index the case in which the execution was issued and levy made, under the name of Houghton, as required by Section 2837, General Code; that the judgment debtor, J.H. Houghton, sold the property to a third party, who placed a mortgage thereon, and that an action was brought by the plaintiff against the purchaser and mortgagee and it was decreed that they were innocent purchasers and that the lien was lost through failure to index.
It is contended that the petition does not show that a precipe for the execution was filed nor that there was an endorsement on the writ regarding a deposit to cover the sheriff’s fees nor that the plaintiff has been deprived of obtaining the money on his judgment. The petition states that plaintiff ordered the clerk to issue the execution and that “fees for the sheriff” were deposited with the clerk. Section 2877, General Code, applies to executions and provides that before an execution is issued “a precipe shall be filed with the clerk demanding the same.” If the clerk issued the writ without demanding a precipe the validity of the process would not be affected thereby.
Section 12105, General Code, prescribes that a sheriff shall not be liable for a failure to execute such process as an execution unless there is endorsed thereon the words, “Funds are deposited to pay the sheriff on this process.” As the sheriff executed the writ the provision has no material bearing on the rights of the parties. As to the claim of failure to plead facts to show plaintiff was damaged, it may be
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said that the petition shows that all efforts of plaintiff to collect the full amount due him by suit and execution have failed, that there was no personal property on which to levy, that the real property levied on was sold to another by the judgment debtor, J.H. Houghton, and that plaintiff has been damaged in the amount set forth. The pleading of such facts constitutes sufficient allegation of damage as against demurrer.
An execution which gives the name of the judgment creditor incorrectly is irregular or erroneous, but not absolutely void Collins v. Hines, 100 Tex. 304, 99 S.W. 400; Anderson v Gray, 134 Ill. 550, 555, 25 N.E. 843, 23 Am. St. Rep., 696 Ellis v. Jones, 51 Mo., 180; Miller v Willis, 15 Neb. 13, 16 N.W. 840; Griffith v. Milwaukee Harvester Co., 92 Iowa 634, 61 N.W. 243, 54 Am. St. Rep., 573; 10 Ruling Case Law, 1236, Section 23; 23 Corpus Juris, 411, Section 187; 1 Freeman on Executions, 188, Section 43.
The rule is tersely and aptly stated by Mr. Freeman in the above cited section of his work on executions in this language: “There is a just distinction between executions issued without authority, and executions issued under an authority which is erroneously pursued; but these two classes of executions cannot be accurately designated as irregular and erroneous. The former class is void; the latter may, with equal propriety, be termed either irregular or erroneous. When an execution can properly issue, a mistake made by an officer, in performing the duty of issuing it, is necessarily a mere error or irregularity. It is, however, necessary that an execution should have a judgment to support it; and that it should appear from the execution what judgment is intended to be enforced. The reason why the description of the judgment is inserted in the writ is, that the officer may know what he is to
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enforce, and that the writ may, by inspection, be connected with the authority for its issuance. When a sale has been made by a sheriff, we apprehend that the purchaser need show, in support of his title, nothing except a judgment, an execution thereon, and a sale and conveyance under such execution. * * * Where sufficient appeared on the face of the execution to connect it with the judgment, courts have frequently disregarded variances in the names of the parties, in the date, or in the amount of the judgment.”
This court must assume the facts well pleaded in the petition to be true, for the purposes of the demurrer, and must give the allegations therein a liberal construction as is required by the Code of Civil Procedure. It fairly appears from that pleading that the execution was regular in form except for the misnaming of the plaintiff and that it was issued as appeared therefrom to make the money due and owing on the judgment pleaded. The presumption would be that the clerk did his duty except as otherwise pleaded.
Since the execution was only erroneous and irregular, but not void, it was not subject to collateral attack. The judgment debtors saw fit not to make any objection to the form of writ and, had they done so, it would have been amendable under Section 11363, General Code. As the execution was not void the levy was not void and the lien thereunder continued. The parties, having chosen not to make a direct attack on the writ for irregularity were bound by it. It follows, that at the time the real estate levied on was sold to an innocent third party, the execution lien was subsisting and binding as between the parties to the action in which the judgment was rendered. The petition pleaded facts sufficient to constitute a cause of action.
The judgments of the Court of Common Pleas and of the Court of Appeals will be reversed and the cause
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remanded to the trial court with directions to overrule the demurrer.
Judgment reversed and cause remanded.
WEYGANDT, C.J., STEPHENSON, MATTHIAS, DAY and ZIMMERMAN, JJ., concur.
JONES, J., not participating.