Opinion
No. 129444
Decided April 10, 1967.
Attachment — Motion to vacate after judgment — Attachment invalid and void ab initio — Section 2715.01, Revised Code — May be set aside after judgment, when.
1. A court may not entertain a motion to discharge an attachment after judgment for mere irregularity.
2. An attachment based on a single claim for work, labor, material, and repairs on a motor vehicle is invalid and void ab initio and should be discharged since sub-division (K) of Section 2715.01, Revised Code, provides for the right of attachment only on a claim for work and labor, which cannot be enlarged upon by the courts.
3. A writ of attachment issued, without any right or any color of the law whatsoever, is void and has no force and effect, and may be set aside after judgment and before the attached property or proceeds thereof have been applied to the judgment.
Messrs. Murphy Mayl and Mr. MacMillan, Jr., for plaintiff.
Messrs. Shaman, Winer, Shulman Ziegler, Messrs. Hamrick, LeCrone Parks and Mr. LeCrone, for receiver.
Messrs. Pickrel, Schaeffer Ebeling, for defendant, International Harvester Company.
Mr. Lee C. Falke, prosecuting attorney, for county treasurer.
This cause came on for hearing upon the motion of Jack F. Pickrel, receiver for the defendants, for an order vacating the order of attachment filed herein on the 20th day of February, 1967. The motion was heard upon the memorandum of counsel for the receiver, the oral arguments of counsel for the parties in open court, and the citations of authorities submitted by counsel.
The receiver predicates his motion on the proposition that the attachment was invalid, and therefore, void ab initio.
The cause of action of the plaintiff herein was commenced on the same day the attachment was obtained. The defendants were duly served with summons, failed to answer and judgment on plaintiff's claim was granted on March 28, 1967. In that judgment the court ordered the attached property to be sold as upon execution, excepting a certain 1963 International truck, in which, International Harvester Company, defendant herein, claimed an interest. On March 31, 1967, defendant, International Harvester Company, filed an identical motion to the motion of the receiver, but did not ask for an oral hearing. The receiver's motion was filed on April 5, 1967.
Section 2715.44, Revised Code, provides:
"Before judgment, upon reasonable notice to the plaintiff, the defendant may move to discharge an attachment as to the whole or any of the property attached."
The court finds no code provision for a motion to discharge an attachment after judgment. The court finds that the receiver is interested in the attached property and the cause of action herein, and thus by virtue of Section 2309.65, Revised Code, he has a right to be heard.
Plaintiff contends that when judgment is rendered for the plaintiff in the principal action, and process issues upon such judgment to sell attached property, the attachment process then ceases to exist. He further contends that after judgment the attachment is no longer an existing process but is part and parcel of the judgment.
Several questions are presented. First, may the court entertain a motion to discharge an attachment after judgment? If so, upon what basis may the court do so? The court finds no precedent in Ohio upon which it may predicate authority for entertaining such motion after judgment. It has been said that judgment is frequently viewed as the last limit of "timely" objection to irregularities in the attachment proceeding, and it has consequently been held that a motion to vacate or quash an attachment because of such defects may not be made after rendition of the judgment. 6 American Jurisprudence 2d, 424.
In some jurisdictions the question whether an application to discharge or dissolve an attachment may be made after judgment is governed, or governed to some extent, by statutory provisions relating to the matter. In some jurisdictions the statute provides that a motion for the vacation of an attachment may be made at any time before the attached property, or the proceeds thereof, has been applied in satisfaction of a judgment recovered in the action.
There is a lengthy annotation in 129 A. L. R. 791, bearing on the questions presented, which the court has reviewed carefully.
This court adopts the view that in Ohio the court may not entertain a motion to discharge an attachment, after judgment, for mere irregularity. The Ohio statutes do not reach the case of a void writ. Moreover, no good reason is perceived why the Legislature should restrict the time within which the court might strike from its records a writ or proceeding making the proceeding absolutely void, and under which no rights can be claimed. On the other hand, the reason is obvious why a limitation should be imposed upon the right to interfere with a valid writ or proceeding even though it be irregular in some respects.
It would appear to this court that the attachment levy must stand or fall upon its own merits and, thus, the court comes to the question as to whether the levy in this case has any merit.
Plaintiff based his claim for the attachment on subdivision K of Section 2715.01, Revised Code. His petition and affidavit for attachment clearly states that his claim is for work or labor and necessary parts furnished for the repair of defendants' motor vehicles. This same question was before the Court of Appeals in the case of West Side Motor v. Politz Brothers, 27 Ohio App. 116, and in that case the court held:
"Attachment based on single claim for work, labor, material and repairs on automobile should be discharged since the code provides for the right of attachment only on a claim for work and labor, which cannot be enlarged upon by the courts."
The court also said in that case:
"Attachment proceeding is summary and drastic procedure and requires strict construction of statutes."
The court, in that case, was considering the motion to discharge the attachment before judgment, but it did hold that under the facts in that case, which are identical to this case before this court, that same did not establish a statutory right or enlarge the statutory provisions.
It would, therefore, appear that if there is no statutory right for the writ of attachment then a writ issued, without any right or any color of the law whatsoever, would of necessity be void and have no force and effect.
The court herein holds that the writ was absolutely void and that the receiver for the defendants, after judgment, and before the attached property or proceeds thereof have been applied to the judgment, may, by motion seek to avoid the implications of a void attachment by requesting that it be discharged and set aside.
Wherefore, it is the judgment of this court that the writ of attachment herein was invalid and void ab initio, and therefore, as between the receiver and the plaintiff, it is hereby vacated, set aside and held for naught.
It is further ordered that the court's previous order that said trucks be advertised and sold by the sheriff as upon execution, be and the same is hereby vacated and held for naught, and the sheriff ordered to return to the clerk the order for such sales.
Judgment accordingly.