Opinion
No. 84009.
1946-12-17
KEMP v. D'ARCY.
Pickrel, Schaeffer & Ebeling, of Dayton, for plaintiff. Martin T. Burnham, of Springfield, for defendant.
Action by Ralph W. Kemp against John D'Arcy, wherein the plaintiff issued an order in aid of execution in which wages of the defendant were attached. On defendant's motion for an order discharging the attachment.
Motion overruled.Pickrel, Schaeffer & Ebeling, of Dayton, for plaintiff. Martin T. Burnham, of Springfield, for defendant.
McBRIDE, Judge.
The plaintiff has issued an order in aid of execution in which wages of the defendantwere attached. The defendant then moved ‘for an order discharging the attachment of the defendant's funds' in the hands of the employer. The reason advanced on behalf of the motion is the noncompliance with Section 10272 of the General Code of Ohio which requires a five-day demand notice before personal earnings are attached.
The question presented is whether the five-day demand upon personal earnings required be Section 10272 of the General Code applies to garnishments in the Municipal Court of Dayton, Ohio. The Supreme Court in Stein-Orebaugh, Inc., v. Andre, 140 Ohio St. 182, 42 N.E.2d 904, held that: ‘Section 10272, General Code, requiring that ‘a demand in writing for the excess over and above the amount of the personal earnings of the debtor exempt from execution, attachment or sale to satisfy a judgment or order’ be served upon the debtor, has no application to a proceeding in aid of execution in a Court of Common Pleas.' Decided July 1, 1942.
Following this decision, the Common Pleas Court of Hamilton County in Coleman v. Levinson, reported in 11 Ohio Supp. 35, decided February 17, 1943, held that:
‘1. Section 10272, General Code, applies to garnishments in the Municipal Court of Cincinnati.
‘2. The notice of garnishment is a condition precedent to the garnishment proper.’
The Court then gave the rule for the Municipal Court of Cincinnati, holding that the amount involved determined whether the notice of garnishment was required or not and the Court quoted the rule furnished in Hamilton v. Ratterman, 19 Ohio N.P., N.S., 94. Since municipal courts are created by separate sections of the General Code, it is always necessary to refer to the code to determine questions which arise in the respective courts.
Section 1579-52 provides the authority for ancillary and supplemental proceedings in the Municipal Court of Dayton, Ohio. The second paragraph of that section recites: ‘The municipal court shall, in all causes have jurisdiction of proceedings in aid of execution. The procedure in all such cases, irrespective of the amount of the judgment, shall be the same as is now, or may hereafter be, provided for the court of common pleas.’
This second paragraph does not appear in Section 1558-7 of the act establishing the Municipal Court of Cincinnati. Consequently, the Coleman v. Levinson decision reported in 11 Ohio Supp. 35, has no application in the Municipal Court of Dayton, Ohio. The wording of Section 1579-52 is subject to but one interpretation and that is that in orders in aid of execution, the Municipal Court of Dayton is required to follow the rule applicable to the Common Pleas Court, irrespective of the amount of the judgment. Thus this Court must follow the Stein-Orebaugh, Inc., v. Andre case, 140 Ohio St. 182, 42 N.E.2d 904, even if the amount of the judgment were less than $100.00.
The judgment in the within case is for a sum in excess of $300.00 so that it is, therefore, necessary for us to follow the rule outlined for the Common Pleas Court in the decision of the Supreme Court.
Section 10272 was enacted to serve a useful and very desirable purpose, however, it is rendered ineffective by the provisions of Section 1579-52 of the act establishing the Municipal Court of Dayton, Ohio by which act, this Court is expressly required to follow the Common Pleas practice in which the five-day notice is not required. This situation can only be corrected by an act of the legislature.
The motion is overruled.