Rice v. Wheeling Dollar Sav. & Trust Co.
| Citation | 57 O.O. 30,128 N.E.2d 16,163 Ohio St. 606 |
| Decision Date | 06 July 1955 |
| Docket Number | No. 34304,34304 |
| Parties | , 57 O.O. 30 RICE et al., Appellants, v. WHEELING DOLLAR SAVINGS & TRUST CO., Ex'r; Burt, Jr., et al., Appellees. |
| Court | United States State Supreme Court of Ohio |
Syllabus by the Court.
1. Sections 2715.47 and 2715.48, Revised Code, are special statutes applying only to an appeal on questons of law by a plaintiff or plaintiffs from an order sustaining a motion to discharge an attachment, made before judgment and pursuant to Section 2715.44, Revised Code, for the reason that the attachment is based upon an order of attachment wrongfully obtained because the order is either not contemplated by the provisions of Section 2715.01, Revised Code, or, if based upon one or more of such provisions, is not supported by sufficient proof of the facts upon which it is predicated.
2. Where the plaintiff in a civil action for the recovery of money causes a garnishment to be levied, at or after its commencement but before judgment, based upon a rightfully obtained order of attachment, as so found by this court in a previous appeal, the action proceeds to a hearing upon the merits, a judgment is rendered thereon for the defendant, and the trial court, pursuant to such judgment, orders the attachment discharged and the garnishee released but contemporaneously therewith orders that such discharge and release be stayed pending the filing and disposition of any motion for a new trial or an appeal from its final judgment, subject to the plaintiff's execution of a bond, the trial court properly sets the bond under the provisions of 'Chapter 2505: Procedure on Appeals,' Sections 2505.06, 2505.09 and 2505.14, Revised Code, rather than under the provisions of 'Chapter 2715: Attachment,' Sections 2715.47 and 2715.48, Revised Code, and the Court of Appeals errs in dismissing the appeal for want of jurisdiction.
The plaintiffs, nonresidents of Ohio, began this action, a shareholders derivative suit, in the Common Pleas Court of Cuyahoga County, alleging that the defendants as majority shareholders, directors and officers of the Jefferson Company, a corporation duly authorized to do business in Ohio in which plaintiffs were shareholders, had violated their fiduciary duties and obligations as such and had enriched themselves at the expense of the company to the extent of $721,631.32.
Upon the return by the sheriff of the summons issued by plaintiffs, the sheriff indicating that the defendants named in the summons could not be found, the plaintiffs, by virtue of an affidavit in attachment based on the nonresidency of the defendants, caused to be levied garnishments upon certain assets of the individual defendants which were in the hands of alleged obligors of the individual defendants, which obligors were within the jurisdiction of the Common Pleas Court.
Certain of the defendants at that time entered their appearance solely for the purpose of objecting to the garnishments and moved for their discharge on the ground that they were wrongfully obtained. Such motions were overruled by the trial court, whereupon certain of the defendants appealed from that judgment to the Court of Appeals for Cuyahoga County. That court affirmed the judgment of the trial court, without written opinion, and the same defendants appealed to this court.
This court ruled favorably to the plaintiffs, affirming the judgment of the Court of Appeals, in Rice v. Wheeling Dollar Savings & Trust Co., 155 Ohio St. 391, 99 N.E.2d 301, Judge Zimmerman writing the opinion, wherein the action was found to be quasi-contractual in nature and therefore within the statute allowing attachments before judgment where the defendant is a nonresident of Ohio and the action is in contract.
Upon the subsequent trial of the issues, the Common Pleas Court found in favor of the defendants, whereupon it entered the following order with respect to its judgment discharging the garnishees:
'It is further ordered that the judgment of this court hereinbefore rendered discharging the attachments and releasing the garnishees be stayed pending the filing and disposition of any motion for a new trial and notices of appeal and that such judgment be stayed pending appeal, upon condition that any such motion for new trial and notices of appeal be filed within the times required by law therefor and that, upon filing notices of appeal, plaintiffs file a supersedeas bond to the approval of the clerk of this court in favor of defendants D. A. Burt, Jr., W. L. Burt and Martha B. Kunkel in the principal sum of $6,000 conditioned that plaintiffs shall abide and perform the order and judgment of the appellate courts and pay all moneys, costs and damages which may be required of or awarded against them upon the final determination of any such appeal.'
The plaintiffs, their motion for a new trial having been overruled, complied with the above requirements and perfected an appeal on questions of law and fact to the Court of Appeals for Cuyahoga County.
The defendants filed a motion to dismiss the appeal, based essentially upon the following argument:
I. In this case the only basis of the jurisdiction of the trial court and the Court of Appeals is the res seized under the order of attachment.
II. Plaintiffs having failed to file a bond in twice the amount of the value of the attached property, pursuant to Sections 2715.47 and 2715.48, Revised Code, the attachment thereby becomes discharged and the attached property released.
III. Therefore, the Court of Appeals is without jurisdiction to consider the appeal.
The Court of Appeals found this argument to be well taken and sustained defendants' motion to dismiss the appeal.
Thereafter the Court of Appeals, upon motion of the plaintiffs, found its judgment to be in conflict with a judgment of the Court of Appeals for Montgomery County, Shaffer v. Shaffer, 42 N.E.2d 175, and, in the entry certifying its record to the Supreme Court on that basis, stated:
'And the order of the Common Pleas Court discharging the attachments and releasing the garnishees is hereby further stayed pending review and final determination by the Supreme Court of Ohio of the cause hereby certified to it, provided plaintiffs-appellants give the bond conditioned as set forth in the stay order of this court filed December 13, 1954, and conditioned further that plaintiffs-appellants shall abide and perform the order and judgment of the Supreme Court of Ohio upon this certification and pay all moneys, costs and damages which may be required of or awarded against plaintiffs-appellants upon the review and final determination by the Supreme Court of Ohio of the cause hereby certified to it and will pay the defendants-appellees all damages sustained by them in consequence of this certification in the event that the order of attachment shall be held to have been wrongfully obtained.'
The following assignment of errors was filed in this court by the appellants:
'1. The findings, judgments and orders of the Court of Appeals are contrary to law.
'2. The Court of Appeals erred:
'(a) In finding that it had acquired no jurisdiction over the attached property and was without jurisdiction to entertain the appeal of plaintiffs-appellants from the Court of Common Pleas.
'(b) In granting and not overruling the motion of defendants-appellees to dismiss the appeal of plaintiffs-appellants.
'(c) In holding that Sections 2715.47 and 2715.48, R.C., are applicable to discharges of garnishments and releases of garnishees following a hearing of the case upon its merits.
'(d) In holding that Sections 2715.47 and and 2715.48, R.C., are applicable to discharges of garnishments and releases of garnishees and were applicable to the case at bar.
'3. The law of Ohio as construed by the Court of Appeals deprives plaintiffs-appellants of property without due process of law, denies them the equal protection of the laws and is repugnant to the Constitution of the United States, Fourteenth Amendment, Section 1.
'4. By the finding, orders and judgment of the Court of Appeals, the state of Ohio deprives plaintiffs-appellants of property without due process of law and denies them the equal protection of the law contrary to the Constitution of the United States, Fourteenth Amendment.
McAfee, Grossman, Taplin, Hanning, Newcomer & Hazlett, Cleveland, and Hoppe, Day & Ford, Warren, for appellants.
Arter, Hadden, Wykoff & Van Duzer, Walker H. Nye, Cleveland, and Paul & Phillips, Wheeling, W. Va., for appellees.
The determinative question in this appeal is whether the special statutes found in Chapter 2715, Revised Code, 'Attachment,' Sections 2715.47 and 2715.48, apply to the setting of a bond on an appeal from a final judgment which orders the release of attachments and garnishments as a consequence thereof, or whether the bond on an appeal from such a judgment should be set under the general statutes found in Chapter 2505, Revised Code, 'Procedure on Appeals', Sections 2505.06, 2505.09 and 2505.14.
It follows that we must examine the purpose and scope of such chapters of the Revised Code in order to determine which sections prescribe the conditions for the setting of a bond upon appeal under the facts herein presented.
Sections 2715.47 and 2715.48 are found in that chapter of the Revised Code entitled 'Attachment.' That attachment proceedings are ancillary to a civil action for the recovery of money, at or after its commencement, is unquestioned.
Attachment is a procedure unknown to the common law, and Section 2715.01, Revised Code, provides the only grounds on which an order of attachment may legally and rightfully be obtained in Ohio.
Sections 2715.02 through 2715.10, Revised Code, provide the mechanics by which an order of attachment is obtained and an actual attachment by seizure accomplished.
Section 2715.11 states:
'When the plaintiff * * * makes oath in writing that he has good...
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