Opinion
Decided April 22, 1940.
Appeal — From Common Pleas Court — Jurisdiction of Court of Appeals — Not conditioned on giving bond, when — Section 11866, General Code — Notice of appeal jurisdictional — Section 12223-4, General Code — Order discharging attachment — Evidence of non-exemption — Burden of proof sustained, when — Affidavit considered only evidence before court, when.
1. The jurisdiction of the Court of Appeals to review a judgment of the Court of Common Pleas, affirming an order of the Municipal Court of Cincinnati discharging an attachment, is not conditioned on the giving of the bond mentioned in Section 11866, General Code.
2. In such case, the filing of a notice of appeal, as provided by Section 12223-4, General Code, is the only act necessary to give the Court of Appeals jurisdiction.
3. When an order discharging an attachment recites that "Said motion was presented to the court on arguments of counsel and thereafter on briefs," it must be considered on review that no evidence in any form was before the court other than the affidavit in attachment.
4. In absence of countervailing evidence, the averment of the affidavit in attachment that the property is not exempt is sufficient to sustain the burden of proof of non-exemption.
APPEAL: Court of Appeals for Hamilton county.
ON MOTION to dismiss.
Messrs. Borsch Murphy and Mr. Walter P. Beck, for appellant.
Mr. George E. Whitman, for appellee.
This cause comes before the court upon the defendant's motion to dismiss the appeal for failure of the plaintiff to give the bond required by Section 11866, General Code, upon an appeal from an order of the Common Pleas Court, discharging an attachment.
This action originated in the Municipal Court of Cincinnati. That court discharged the attachment and the plaintiff, within the time fixed by that court, filed notice of appeal to the Common Pleas Court and gave a bond conditioned according to Section 11866, General Code.
The Common Pleas Court affirmed the order of the Municipal Court discharging the attachment. Notice of appeal to this court was then filed within the time allowed, but no additional bond was filed until after such allotted period had elapsed and this bond was filed in the Common Pleas Court.
The motion to dismiss this appeal, therefore, raises the question of whether the giving of a bond under Section 11866, General Code, is required in order to give this court jurisdiction to review a judgment of the Court of Common Pleas affirming an order of the Municipal Court of Cincinnati, discharging an attachment.
That such a bond was required prior to the Appellate Procedure Act of 1936, in order to give the Common Pleas Court jurisdiction to review the order of the Municipal Court of Cincinnati, we think clearly resulted from the operation of Section 1558-26, General Code, making the appellate procedure from the Common Pleas Court applicable to appeals to that court. Had this action originated in the Common Pleas Court and had it discharged this attachment prior to January 1, 1936, the effective date of the Appellate Procedure Act, it would have been necessary to give the bond required by Section 11866, General Code, in order to confer jurisdiction upon this court, to review that order. That being true, Section 1558-26, General Code, would have imposed the same condition upon an appellant from the Municipal Court of Cincinnati.
But Sections 11865 and 11866 were amended and reenacted as a part of the Appellate Procedure Act of 1936 (116 Ohio Laws, 104). As amended, they read in part as follows:
Section 11865. "When an order discharging an order of attachment is made, and a party affected thereby excepts thereto, the court or judge shall fix the number of days, not to exceed thirty, in which such party may file his * * * appeal, and during which it shall be filed and the attached property held by the sheriff or other officer."
Section 11866. "The party who * * * appeals must give a bond to the adverse party, with surety to be approved by the clerk of the * * * Court of Appeals, in double the amount of the appraised value of the property attached * * *."
Now the General Assembly would not have provided for the approval of the bond by the clerk of the Court of Appeals had it intended to impose the giving of a bond as a jurisdictional act. This is made certain by Section 12223-4, General Code, by which it enacted that: "The appeal shall be deemed perfected when written notice of appeal shall be filed with the lower court" and that "no step required to be taken subsequent to the perfection of the appeal shall be deemed to be jurisdictional."
We, therefore, hold that while failure to give the bond required by Section 11866, General Code, when ordered by the Court of Appeals, would be ground for dismissal, the court has jurisdiction upon filing of the notice of appeal in the Common Pleas Court.
What we have said applies to cases in which the appeal is from an order of the Common Pleas Court discharging an attachment. In the case at bar the attachment was discharged by the Municipal Court of Cincinnati, and not by the Common Pleas Court. All the latter court did was to find that no error had been committed, and, for that reason, affirmed the order. The requirement of Section 11866, General Code, has no application to such a judgment of the Common Pleas Court.
For these reasons, the motion to dismiss the appeal is overruled.
Motion Overruled.
HAMILTON, P.J., and ROSS, J., concur.
ON THE MERITS.
The Municipal Court of Cincinnati sustained a motion to discharge an attachment under which $300 was garnisheed in the hands of Grand Lodge of the Brotherhood of Railway and Steamship Clerks, Freight Handlers and Station Employees.
In the affidavit in attachment, it was averred that the property sought to be attached was not exempt from execution.
The motion to discharge the attachment alleged that the fund was exempt from attachment, and Section 9482, General Code, was cited in support of the allegation.
The entry sustaining the motion recited that "said motion was presented to the court on arguments of counsel and thereafter on briefs of counsel submitted to the court, and the court, being advised in the premises, finds that said motion is well taken."
The Common Pleas Court affirmed the Municipal Court and the cause is now before this court on appeal from that affirmance.
No affidavits were filed in support of the motion to discharge the attachment, and we are not advised through the medium of a bill of exceptions as to what took place at the hearing of the motion.
If the answer of the garnishee could be considered we would conclude that it discloses nothing indicating whether the fund in its control is or is not exempt.
In view of the recital in the order discharging the attachment, this case must be considered on appeal on the premise that no evidence in any form was introduced at the hearing, and that the court concluded for some legal reason that the fund was exempt, notwithstanding the averment in the affidavit that it was not exempt.
While the burden of proof was upon the plaintiff to sustain its attachment by the greater weight of the evidence (Seville v. Wagner, 46 Ohio St. 52, 18 N.E. 430; Morelli v. Thombs, 35 Ohio App. 233, 172 N.E. 381) the averment in its affidavit is sufficient for that purpose in the absence of any countervailing evidence.
For this reason, the judgment of the Court of Common Pleas, affirming the order of the Municipal Court discharging the attachment and garnishment is reversed and the order of the Municipal Court is also reversed, and the cause remanded for further proceedings according to law.
Judgment reversed and cause remanded.
HAMILTON, P.J., ROSS and MATTHEWS, JJ., concur.