Favret Co. v. West
| Decision Date | 06 January 1970 |
| Citation | 254 N.E.2d 709,21 Ohio App.2d 38 |
| Parties | , 50 O.O.2d 56 FAVRET CO., Appellee, v. WEST et al., Appellants; Westborough Village, Inc., et al., Appellees. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. Payment of a judgment, after issuance of an execution thereon, to prevent a sale of property is not a voluntary payment.
2. An involuntary payment of a judgment by a judgment debtor does not bar the prosecution of an appeal of the judgment.
Lucas, Prendergast, Albright, Gibson, Brown & Newman, and Robert E. Albright, Columbus, for appellee The Favret Co.
John H. Lewis, Columbus, and Fred N. Boynton, for appellants.
Folkerth, Calhoun, Webster, Maurer & O'Brien, Columbus, for appellees Jay F. Zook, Inc., and Metropolitan Life Ins. Co.
C. Howard Johnson, Pros. Atty., and William W. Holmes, Columbus, for appellees Clerk of Courts and Treasurer of Franklin County.
Plaintiff-appellee moves the court for an order dismissing this appeal on questions of law for the reason that the money judgment and court costs rendered in its favor by the Common Pleas Court of Franklin County have been paid in full and, therefore, the question is moot. Defendants-appellees contend that the payment of the judgment and costs in full was not an involuntary payment and, therefore, the questions raised by the appeal are not moot.
On October 2, 1969, the Common Pleas Court, by entry, rendered judgment against the defendants-appellants. The judgment entry entered a money judgment in favor of plaintiff-appellee against the defendants-appellants and, in addition, provided that, if the judgment and costs were not paid, certain described real property was to be sold by the sheriff as upon execution. On October 9, 1969, plaintiff-appellee issued an order of sale to the clerk of courts directing the sheriff to sell the real property at sheriff's sale. The document shows that the order of sale was received by the sheriff on October 10, 1969, at 4:01 p.m. On November 4, 1969, the defendants-appellants filed their notice of appeal from that judgment and from the order overruling the motion for new trial and final order dated October 20, 1969. On November 6, 1969, a release of judgment was filed by plaintiff-appellee's counsel showing complete satisfaction of the judgment. On the following day (November 7, 1969), counsel for defendants-appellants filed a precipe directing the clerk of courts to file a transcript of the docket entries, etc. On November 25, 1969, the defendants-appellants filed their bill of exceptions.
Defendants-appellants, in opposing this motion, contend that the payment of the judgment was involuntary for the reason that the judgment was paid by a third person and that the document attached to plaintiff-appellee's motion shows that such document is not an agreement between the parties litigant to this suit. The document referred to does not determine for the purposes of this motion whether the payment was voluntarily or involuntarily made. The agreement referred to appears to be between Mara Enterprises, Inc. (not a party to this law suit), and Charles L. West et al., and, therefore, as far as this appeal is concerned, it is not binding as to the issue presented by this motion....
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