Hamilton v. Temple

• Decision Date: 27 June 1938
• Docket Number: 4659.
• Citation: 19 N.E.2d 650,60 Ohio App. 94
• Parties: HAMILTON v. TEMPLE.
• Court: Ohio Court of Appeals

19 N.E.2d 650

60 Ohio App. 94

HAMILTON v. TEMPLE.

No. 4659.

Court of Appeals of Ohio, First District, Hamilton.

June 27, 1938

William R. Collins and Raymond Huwe, both of Cincinnati, for appellant.

Howard D. Porter, of Cincinnati, amicus curiae.

MATTHEWS Judge.

This case originated in the Court of Common Pleas of Hamilton county. The notice of intention to appeal recites that the order appealed from is one made on February 21, 1938 sustaining the motion of Howard D. Porter to be dismissed as garnishee.

It appears from the bill of exceptions that the chose sought to be brought within the jurisdiction of the court by the garnishment process was three hundred and thirty-eight shares of stock in The Warner Elevator Manufacturing Company. The garnishee, Howard D. Porter, appeared and answered orally in open court. From his testimony, which was the only evidence on the subject, we learn that the certificate evidencing this stock ownership recited that the defendant was the owner. The certificate came into the possession of the garnishee from The Guaranty Underwriters, Inc., and The Guaranty Loan & Investment Company, of Jacksonville Florida, with instructions to present it to The Warner Elevator Manufacturing Company for transfer--ten shares to The Guaranty Underwriters, Inc., and three hundred and twenty-eight shares to the defendant.

The defendant had authorized the transfer of the ten shares to The Guaranty Underwriters, Inc.

The certificate was not seized by the officer and was in a safe deposit box in another state.

The relation of The Guaranty Loan & Investment Company to this stock was that of a pledgee to secure a loan made to the defendant. The record does not disclose the amount of this loan, or the value of the stock.

We should observe here that we know of no provision of the law authorizing a garnishee to move for his dismissal. 4 Ohio Jurisprudence, 270, Section 205. The court has no jurisdiction to make any order that is binding upon him. 4 Ohio Jurisprudence, 197, Section 156. However, the court does have jurisdiction to refuse to make an order against the garnishee, and, of course, when the evidence shows no right to an order, it should not be made.

The first question presented is whether the order dismissing the garnishee can be reviewed by this court on appeal on questions of law by the plaintiff. That depends on whether it comes within the designation of a judgment as that term is used in Section 6 of Article IV of the Constitution, which confers jurisdiction upon this court. We have set forth our views on the meaning of the constitutional provision in Ryan v. Kroger Grocery & Baking Co., 56 Ohio App. 469, 11 N.E.2d 204, and will not repeat them here. It is sufficient to say that if the order divests some right in such a manner as to put it beyond the power of the court making the order to place the parties in their original condition, after the expiration of the term, it is a judgment or final order. The order must determine finally some right of the parties to be appealable to this court. We think this order dismissing the garnishee answers that description. It is the equivalent of an order dissolving the attachment. The right in the nature of a lien to subject the chose in the hands of the garnishee is thereby taken from the plaintiff. 4 Ohio Jurisprudence 260, Section 196.

The order discharging the garnishee would end any possibility of subjecting the stock to the plaintiff's claim in the pending action. It is final as to that action--as final as a dismissal without prejudice of the main action. And the garnishee, having made a full, complete and honest disclosure by his answer, would not be liable to the plaintiff upon her claim in any independent action under Section 11851, General Code. The garnishment proceeding would cease by order of the court and through no fault of the garnishee.

This court has held in Price Hill Colliery Co. v. Old Ben Coal Corp., 38 Ohio App. 151, 175 N.E. 755, that an order overruling a motion to discharge an attachment is a final order. See, also, State ex rel. Fulton v. Heinrich, 48 Ohio App. 455, 194 N.E. 395.

And in Toledo Paper Box Co. v. Jay Lane, Inc., 20 Ohio Law Abs. 334, this court also held that an appeal lay to an order discharging an attachment.

We find the court has jurisdiction. It is expressly provided by Section 12223-2, General Code, that every order affecting a substantial right in a special proceeding is a final order. In Harrison and Wiley v. King, Carey & Howe, 9 Ohio St. 388, at page 394, it is said: 'The attachment is a special proceeding, ancillary to the action, but so independent of it that an order in the attachment proceeding may, when final, be the subject of a petition in error, during the pendency of the action.'

See, also, Richardson v. Greenhood, 225 Mass. 608, 114 N.E. 821, Ann.Cas.1918A, 515.

Furthermore, provision for such an appeal is specifically made by Section 11864, General Code, which was a part of the statute law of Ohio at the time of the adoption of the constitutional amendment of 1912 relating to the jurisdiction of this court, and the order discharging the attachment must be considered as constituting a judgment within the contemplation of the framers of that amendment.

We are therefore presented with the question of the validity of the court's order dismissing the garnishee. The solution of this problem is found in determining whether the answer of the garnishee disclosed an unqualified admission of property in his possession or under his control belonging to the...