City of Cincinnati v. Hafer
| Decision Date | 02 February 1892 |
| Parties | CITY OF CINCINNATI v. HAFER. |
| Court | Ohio Supreme Court |
Error to circuit court, Hamilton county.
Suit in the nature of a creditors' bill by George Hafer against the city of Cincinnati to subject to the payment of his judgment an indebtedness due from the city to his judgment debtor. Judgment for plaintiff. Defendant brings error. Affirmed.
Syllabus by the Court.
1. Where a judgment debtor has commenced an action against another, for unliquidated damages arising out of an injury to his real estate, and the judgment creditor of such debtor thereafter, and while his judgment is alive, commences a suit, under section 5464 of the Revised Statutes, in the nature of a creditors' bill, against such debtor and the wrong-doer, to subject to the payment of his judgment the debtor's interest in the chose in action or claim for damages, the judgment creditor may acquire a lien in equity upon such interest of the debtor, from the commencement of his suit, where the demand of the judgment debtor for unliquidated damages is reduced to judgment during the pendency of the creditors' bill.
2. Such judgment creditor, by permitting his original judgment to become dormant, through failure to issue execution thereon during the pendency of his suit in the nature of a creditors' bill, will not thereby lose the lien in equity which he may have acquired by reason of his having commenced such suit.
Horstman Hadden, Galvin & Van Horne, for plaintiff in error.
Wilby & Wald, for defendant in error.
This proceeding in error is instituted to reverse a judgment rendered by the circuit court of Hamilton county against the city of Cincinnati, on an appeal by the city from a judgment in the court of common pleas in favor of George Hafer defendant in error, and by him recovered in a suit in the nature of a creditors' bill. There was a finding of facts by the circuit court, from which the following are shown to have existed: On the 31st day of May, 1880, George Hafer, on cross-petition in the case of Charles S. Woodruff v. H.B Teetor et al., recovered a judgment, by the consideration of the court of common pleas, against Sarah L.C. Teetor, wife of H.B. Teetor, for the sum of $301.01, with interest at 8 per cent. per annum from May 10, 1880, upon which judgment no execution was ever issued. At the time of the recovery of this judgment, a suit, begun in the year 1879, was pending in the court of common pleas, in which Mrs. Teetor, as plaintiff, claimed damages from the city of Cincinnati, as compensation for a loss sustained by her in consequence of the drainage of sewage from the city infirmary upon her land. On the 20th day of November, 1880, Mrs. Teetor having no personal or real property subject to levy on execution sufficient to satisfy Hafer's judgment, Hafer commenced this suit, in the nature of a creditors' bill, in the court of common pleas, against Mrs. Teetor and the city of Cincinnati, in order to subject to the payment of his judgment so much as would be sufficient out of the indebtedness of the city to her by reason of the loss by her sustained from drainage upon her land, as above stated. Soon after the commencement of this suit, a general demurrer to the petition in Mrs. Teetor's action against the city was sustained by the court, and leave was given to her to file an amended petition therein. It was not done within the time fixed by the court, and not until June, 1884, when, by leave of the court, an amended petition was filed, which set out the original cause of action, though in a different manner from the original petition. Mrs. Teetor thereupon, to-wit, in June, 1884, assigned to A.S. Miller and Sarah Cilley her claim against the city, then in litigation. The city failed to answer the amended petition of Mrs. Teetor, and, on the trial of the issue thus made, she recovered, in October, 1886, on her original cause of action, a judgment against the city for $1,102; and, shortly after the recovery of such judgment, the city solicitor then in office paid the full amount thereof to her assignees, without any knowledge of the pendency of Hafer's suit against the city,-the records and the dockets showing the same having been burned with the Hamilton county court-house in March, 1884. In Hafer's suit against the city of Cincinnati, the city, in December, 1880, filed an answer which was a general denial, but nothing further was done in the suit until after the burning of the court-house, in which all the papers in the cause were destroyed, when, in March, 1887, the counsel for Hafer, hearing for the first time of the judgment against the city in favor of Mrs. Teetor, obtained leave and filed a copy of Hafer's original petition; and the city filed an answer thereto, to which answer there was a reply, and the court of common pleas, in July, 1887, upon the pleadings and the evidence, gave judgment against the city. On appeal by the city, the circuit court found that Hafer was entitled to a decree against the city for a balance due to him from Mrs. Teetor on his judgment against her, viz., for the sum of $449.15, with interest at 8 per cent. per annum, and the costs in the action, and rendered judgment against the city accordingly.
The main question arising on the record is whether Mrs Teetor's demand against the city for unliquidated damages was of such a nature that, before it was reduced to judgment, Hafer, a judgment creditor, could, by a suit in the nature of a creditors' bill against her and the city of Cincinnati, acquire a lien in equity on her interest in such demand, and become entitled to payment of the same, in the event of succeeding in his suit. It is contended that the demand of Mrs. Teetor against the city was for damages unliquidated, growing out of a tort, and was not, therefore, until reduced to judgment, such an interest as might, under the statute, be subjected by the judgment creditor to the payment of his judgment. It is provided by section 5464 of the Revised Statutes that, " when a judgment debtor has not personal or real property subject to levy on execution sufficient to satisfy the judgment, * * * any interest he has in * * * any money contract, claim, or chose in action, due or to become due to him, or in any judgment or order, or any money, goods, or effects which he has in the possession of any person, or body politic or corporate, shall be subject to the payment of the judgment, by action." Mrs. Teetor's demand for damages, on account of injury to her land, did not, it is true, rest on a money contract, but it was nevertheless a chose in action. While by a " chose in action" is ordinarily understood a right of action for money arising under contract, the term is undoubtedly of much broader significance, and includes the right to recover pecuniary damages for a wrong...
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