Ettinger v. Stahl, 25778

CourtUnited States State Supreme Court of Ohio
Citation200 N.E. 643,130 Ohio St. 501
Docket Number25778
PartiesEttinger v. Stahl, Judge.
Decision Date11 March 1936

200 N.E. 643

130 Ohio St. 501

Stahl, Judge.

No. 25778

Supreme Court of Ohio

March 11, 1936

Writ of prohibition - Not substitute for error proceeding - Default judgment in action on foreign judgment - Hearing on issue of transfer to defraud creditors.

Mr. Percy R. Taylor and Mr. Oscar J. Smith, for plaintiff in error.

Messrs. Smith, Baker, Effler & Eastman and Mr. L. J. Cushman, for defendant in error.

Floyd W. Davis and his wife of Miami, Florida, recovered a judgment against plaintiff in error, Max Ettinger, in the Circuit Court of Dade county, Florida, for $24,000, costs and interest.

Thereafter Davis and his wife brought suit in the Court of Common Pleas of Lucas county, Ohio, against Max Ettinger, his wife Stella Ettinger, and the Saves Sales Co., pleading that after such Florida judgment was rendered Max Ettinger transferred and assigned certain stocks and property, with intent to hinder, [130 Ohio St. 502] delay and defraud creditors and praying for judgment against Max Ettinger on the Florida judgment, that the fraudulent conveyances be set aside, that the property be subjected to the payment of the claim and that the Saves Sales Co. and Mrs. Ettinger be enjoined from disposing of any of the property so transferred or assigned to them.

Mrs. Ettinger and the Saves Sales Co. answered the petition, which issues are still pending, but a default judgment was entered against Max Ettinger.

Subsequently Max Ettinger, claiming that the action was terminated and no longer pending as to him, filed a petition in prohibition in the Court of Appeals of Lucas county to prevent a judge of the Court of Common Pleas from hearing the issue as to whether Ettinger conveyed or transferred the property to defraud creditors, upon the ground that the default judgment constituted final adjudication of the entire cause of action as to ettinger. The Court of Appeals denied the writ of prohibition on demurrer to the petition.

Max Ettinger having prosecuted error proceedings in this court, the cause came on to be heard upon the transcript of the record of the Court of Appeals of Lucas county, and was argued by counsel.

On consideration whereof, it is ordered and adjudged that the judgment of the Court of Appeals be, and the same hereby is, affirmed on authority of Silliman v. Court of Common Pleas of Williams County, 126 Ohio St. 338, 185 N. E., 420, and State, ex rel. Carmody, v. Justice, Judge, 114 Ohio St. 94, 150 N. E.,...

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