Levin v. Pribanic

• Decision Date: 18 November 1959
• Citation: 110 Ohio App. 381,169 N.E.2d 504
• Parties: , 13 O.O.2d 151 LEVIN, Appellant, v. PRIBANIC, Appellee.
• Court: Ohio Court of Appeals

Page 381

110 Ohio App. 381

169 N.E.2d 504, 13 O.O.2d 151

LEVIN, Appellant, v. PRIBANIC, Appellee.

Court of Appeals of Ohio, Ninth District, Lorain County.

Nov. 18, 1959.

Syllabus by the Court.

1. In an appeal from a judgment of a trial court, refusing the sale of certain stock upon execution to satisfy a money judgment entered in said court, when it appears in the appellate court that the judgment and costs in the trial court have been satisfied and paid, the controversy in the appellate court presents only a question which has become moot, and the appeal must be dismissed.

2. Costs assessed, or to be assessed, against the appellant do not alone furnish a sufficient predicate for the retention of a case in the Court of Appeals which has become moot.

Levin & Levin, Lorain, for appellant.

Ray L. Miraldi, Lorain, for appellee.

DOYLE, Presiding Judge.

The notice of appeal in the instant case shows it to be 'from a ruling rendered by the Lorain Municipal Court of Lorain County, Ohio, * * * on June 4, 1959, * * * as appears in the journal and the appearance docket and records of said Lorain Municipal Court * * * on questions of law only.'

The order of June 4, 1959, to which reference is made above, is as follows 'This cause came on for hearing on motion filed by the plaintiff for an order to the defendant herein to deliver to the bailiff of the Lorain Municipal Court stock certificate No. 1 of the Vogue Room, Inc., and all other stock certificates in said corporation issued to Joseph M. Pribanic to be sold upon execution and on motion for rehearing filed by the defendant requesting the court that the levy and sale be denied. The court, upon consideration, over-rules the motion of the plaintiff and grants the motion of defendant denying the levy and sale of the stock certificates of Vogue Room, Inc. Exceptions to the parties.'

It is found from the record that a money judgment for $568.84 and costs was rendered in the Municipal Court of Lorain in favor of G. R. Levin (the appellant) and against Joseph M. Pribanic (the appellee); subsequently, proceedings in aid of execution were commenced against the judgment debtor, and a great number of orders were made by the court in connection with the judgment creditor's attempt to subject various assets of the judgment debtor to the payment of the judgment.

This appeal is taken from an order of the court refusing certain stock to be sold upon execution for the purpose of satisfying the judgment, as more fully appears in the order of June 4, 1959, supra.

The appeal came on for hearing on October 19, 1959, and counsel representing each of the litigants appeared in court. Counsel for the judgment debtor stated that he would pay immediately the judgment and costs in the lower court. This court thereupon indicated that, if payment was made, as promised, the appeal would be dismissed on the ground that the appeal presented a question which had become moot.

The judgment debtor (appellant) insists that his appeal be entertained and not dismissed, because there is presented the question of costs in the Court of Appeals, including the cost of a bill of exceptions.

It is agreed by all that the judgment and costs in the Municipal Court have been paid; and in consideration...