Wilson v. Columbia Casualty Co.

• Decision Date: 28 March 1928
• Docket Number: 20847,20848,20882
• Parties: Wilson v. Columbia Casualty Co.
• Court: Ohio Supreme Court

160 N.E. 906

118 Ohio St. 319

Wilson v. Columbia Casualty Co.

Nos. 20847, 20848 , 20882

Supreme Court of Ohio

March 28, 1928

Execution - Proceedings in aid - Court map order judgment debtor's property in nonresident's possession applied to judgment - Judgment debtor may be committed for contempt, when - Money wrongfully and fraudulently sent out of state - Due diligence not exercised by judgment debtor to comply with order in aid.

1. Under Sections 11769 and 11751, General Code, upon an examination of a judgment debtor after execution issues, if it is shown to the satisfaction of the court of common pleas or a judge thereof, or a probate judge, of the county in which the debtor is found, that the judgment debtor has property which he unjustly refuses to apply toward the satisfaction of the judgment, such court or judge may order any property of the judgment debtor, or money due him, not exempt by law, in the hands either of himself or other person or of a corporation, to be applied toward the satisfaction of the judgment. The fact that such property belonging to and in the absolute control and disposition of the judgment debtor is in the hands of a person not residing in this state does not defeat the jurisdiction of the court to make such order upon the judgment debtor of whose person the court has jurisdiction.

2. When an order in aid of execution has been made, commanding a judgment debtor to apply to the payment of a judgment money belonging to him and under his absolute control and disposition, which he has received and wrongfully and fraudulently sent out of the state with intent to pro vent the same being applied on such judgment, and the judgment debtor has not exercised due diligence to comply with such order in aid of execution, the court may order him confined for contempt of court until he complies with such order.

This case involves three separate error proceedings, which arose out of a single action, as follows:

An action was brought by Ruth Boughton and others against Addison R. Wilson and the Columbia Casualty Company, for money only, in the court of common pleas of Cuyahoga county in which judgment was rendered against both defendants in the sum of $2,794 and costs. The action arose out of a contract whereby Wilson had agreed to construct a house for the plaintiffs. Subsequent to the rendering of the judgment, the Columbia Casualty Company paid the judgment and obtained an order from the court of common pleas subrogating the casualty company to all the rights and remedies which the plaintiffs had against the defendant Addison R. Wilson, principal debtor, at the time payment was made by the casualty company to wit, February 19, 1927.

Later Wilson received $2,000 in settlement of another separate action. He paid $750 of this amount to his attorney and retained $1,250, which he placed in the hands of his brother in Washington, Pa. The sum of $1,250 which he placed in his brother's hands is the sum of money in controversy in these three error proceedings.

The Columbia Casualty Company instituted order in aid proceedings in the original action brought by Ruth Boughton and others against Wilson and the casualty company, and applied for an order requiring Wilson to apply the sum received in settlement of the independent action in payment of the judgment in the instant case. The court, after examination of the judgment debtor and the evidence of the various witnesses, found that "said Addison R. Wilson, owns and has the absolute control and disposition of the sum of twelve hundred and fifty dollars ($1,250), which he wrongfully and fraudulently has sent out of the state of Ohio with intent to prevent the same being applied on the judgment in the foregoing action, and should be applied on said judgment, and said application is therefore granted," and ordered the defendant Addison R. Wilson to pay over the aforesaid sum to the sheriff of Cuyahoga county, Ohio, to be applied on said judgment. Error proceedings were then instituted to this finding and order made in the court of common pleas.

Subsequently charges in contempt, with an application for an order to answer and show cause, were fled in the same proceeding, and upon hearing of these charges the court found Wilson in contempt of court and committed him to jail until he should comply with the order above quoted. Error proceedings were instituted to the finding and order of the court upon the citation for contempt.

An application for a writ of habeas corpus was then filed by Wilson in the Court of Appeals. All.. of these three proceedings were argued together in the Court of Appeals, and the Court of Appeals sustained the decision of the court of common pleas in both of the error proceedings, and denied the application for the writ of habeas corpus. Error proceedings were then instituted to all three of the decisions of the Court of Appeals. The error proceedings in the habeas corpus action constitute case No. 20882. The error proceedings to the order in aid of execution constitute case No. 20847, and the error proceedings to the finding of the court that Wilson was in contempt of court, and its order in pursuance of that finding, constitute case No. 20848.

Motions to certify the record were allowed in cases No. 20847 and No. 20848, and No. 20882 is here upon error proceedings to the habeas corpus action filed as an original action in the Court of Appeals.

Further facts are stated in the opinion.

Messrs. Quigley & Byrnes, for plaintiff in error.

Mr. W. H. McMorris, for Columbia Casualty Co.

Mr. Edward C. Stanton, prosecuting attorney, for Hanratty.

ALLEN J.

These three proceedings arise under Sections 11768-11787, General Code. The particular sections involved are 11769 and 11781, which read as follows:

Section 11769: "After the issue of an execution against property, and on proof by the affidavit of the judgment creditor, or otherwise, to the satisfaction of the court of common pleas, or a judge thereof, or a probate judge, of the county in which the debtor is found, that the judgment debtor has property which he unjustly refuses to apply toward the satisfaction of the judgment, such court or judge, by order, may require the debtor to appear at a time and place, in such county, to answer concerning it. Such proceedings thereupon may be had, for the application of the property of the debtor toward the satisfaction of the judgment, as herein are prescribed."

Section 11781: "The judge may order any property of the judgment debtor or money due to him, not exempt by law, in the hands either of himself or other person, or of a corporation, to be applied toward the satisfaction of the judgment, but ninety per cent. of the earnings of the debtor for his personal services, within thirty days next preceding the order cannot be applied when it is shown by the defendant, that such earnings are necessary for the support of the debtor or his or her dependent family; except that, if the judgment is one for work and labor, or necessaries furnished to the debtor, his wife, or family, an amount equal to twenty per cent. of such earnings may be ordered to be applied toward its satisfaction."

In this case it is not claimed that any part of the sum in controversy consists of earnings of the debtor for his personal services, and hence the exceptions of Section 11781 do not apply.

The court of common pleas found in the aid proceeding that the defendant Wilson had fraudulently placed the sum of money received from the settle- ment of an independent action in the possession of his brother, Albert M. Wilson, at Washington, Pa., and that it belonged to and was subject to the absolute control and disposition of the defendant Addison R. Wilson. Many of the legal contentions of the plaintiff in error are based upon the fact that this finding of the court of common pleas was not justified. We do not in this court review the weight of the evidence. This court will, however, examine the record to determine whether there is any evidence to support a finding of fact which is the basis of a final order or judgment, and having examined this record with that question in mind, we think that the court of common pleas had before it more than ample evidence upon which to base its conclusion.

The sum in controversy was received by Addison R. Wilson after the judgment was obtained in the instant proceedings. Subsequently, and prior to the application for order in aid of execution, Wilson represented to Mr. Alvord L. Bishop, an attorney of Cleveland, that he had received the sum in question, but had sent it to his brother, Albert M. Wilson, in Washington, Pa., to hold in trust for him, Addison R. Wilson. An order signed by Addison R. Wilson directed to his brother in Pennsylvania is a part of this record, ordering his brother to pay part of the money in question for the defense of an action brought by the Columbia Casualty Company against a certain George H. Durant, who had agreed to indemnify the casualty company from loss incurred by reason of that company signing the construction building bond for Wilson.

Wilson not only signed this order, which he now claims that he did not read, in which he specifically states that he places the fund in question in the hands of his brother as trustee for his own use and benefit, assigns $500 of the fund to Durant, and instructs and authorizes his brother to pay that sum to Durant, but also signed a letter in which he again recites that he has assigned and transferred the sum of $500 to Durant, and addressed this letter to his own brother in Washington, Pa., in which he say...