Opinion
No. 1956
Decided December 16, 1947.
Judgments — Conditional order of revivor — Motion for, filed by plaintiff — Notice of pending injunction suit against revivor filed by defendant — Court not required to consider subject matter of separate injunction suit — Procedure to set aside revivor order.
1. The procedural step to be taken to set aside a conditional order of revivor is to plead in that action.
2. Where a plaintiff files a motion for a conditional order of revivor of a judgment, and the defendant, within the 20-day period succeeding the conditional order, files in that action only a notice that he has instituted an action to enjoin the plaintiff from reviving the judgment, the judgment, after such period, stands revived; the court, upon its own motion, is not required to consider the subject matter of the petition for injunction in the separate action as a basis for the vacation of the conditional order of revivor.
APPEAL: Court of Appeals for Montgomery county.
Mr. C.J. Stoecklein, for appellee.
Mr. Clifford R. Curtner, for appellant.
The error assigned on this appeal is that "the court erred in sustaining motion of plaintiff-appellee to strike the answer of the defendant-appellant for the conditional order of revivor and rendering final judgment against defendant-appellant."
The facts essential to an appreciation of the question presented are:
On December 7, 1931, plaintiff took cognovit judgment against the defendant. On August 26, 1946, a motion for conditional order of revivor was filed, conditional order entered and copy thereof served on the Third National Bank Trust Company, as executor of the estate of Paul M. Banker, deceased. The conditional order carried the usual provisions that "unless sufficient cause be shown against said revivor within twenty (20) days after service of this order * * * the above judgment stand and be revived," etc.
Within the 20-day period succeeding the entry of the conditional order of revivor, defendant, appellant herein, instituted an action to enjoin the plaintiff from reviving the judgment. Notice of the institution of the suit for injunction was filed in the instant action in the Common Pleas Court under date of September 6, 1946, within the 20-day period succeeding the conditional order of revivor. The injunction suit went to judgment after the sustaining of a general demurrer to the petition. Appeal was prosecuted to this court and the judgment was affirmed upon the proposition that plaintiff's remedy was not in equity but at law. After the decision in the injunction suit, on April 28, 1947, defendant, appellant in the injunction suit, filed an answer in the instant action, the theory of which is that the bank, as executor, by its suit for injunction and its notice thereof filed in the instant cause, had taken the necessary and essential steps to support an entry setting aside the conditional order of revivor. On July 18, 1947, a motion of plaintiff to strike the answer of the bank was sustained, and it is from that order that the appeal is prosecuted.
The question presented is one of procedure and requires consideration of the subject matter which was before the court during the 20 days following the service of the conditional order of revivor and upon which the court was required to act in determining whether the conditional order should be set aside. At that time there was nothing filed in the instant action except the notice that the injunction suit had been instituted. The bank did not elect to set forth in the action for revivor of the judgment its petition in the injunction suit or the subject matter thereof. And, if it could be considered as proper pleading, there was no prayer in the injunction suit for vacation of the conditional order of revivor. The sole relief sought in the latter suit was a permanent injunction which was instituted by a separate suit. The procedural step to be taken to set aside the conditional order of revivor should have been by pleading in that action. We do not believe that the court, upon its own motion, was required to consider the subject matter of the petition for injunction as a basis for the vacation of the conditional order of revivor. No action of the bank indicated any purpose or desire that it be so considered during the period when, if at all, it must have been asserted.
The language of the sections of the Code, Sections 11645 and 11647, General Code, clearly provides that a judgment stands revived upon the conditional order unless sufficient cause be shown why it should not remain revived. All the cases are to like effect: Welsh v. Childs, 17 Ohio St. 319; Van Nover v. Eshelman, 14 C.C. (N.S.), 348, 24 C.D., 210; Thompson v. Schnader, 16 C.C. (N.S.), 582, 27 C.D., 610.
In the Van Nover case, it was held that a conditional order of revivor made on the 25th of January 1908 would sustain an execution issued on January 27, 1908. And in Eshelman v. Van Nover, 89 Ohio St. 48, 105 N.E. 70, the court said that, upon the entry of the conditional order of revivor, "the judgment is then relieved of its dormancy and has all the attributes of a living judgment, subject, however, to the right of the judgment debtor to have the order of revivor set aside if sufficient cause therefor be shown within the time fixed in the order served upon him."
When the temporary restraining order was issued, prohibitory in effect, the judgment had been revived. To vacate it, affirmative action showing cause must have been taken by the bank. If defendant's contention here is accepted, defendant is in the anomalous situation of urging that the subject matter of the petition, which was not good as against general demurrer and the action in which it was filed had been dismissed, could be by judicial notice employed as showing cause why the conditional order of revivor should be set aside in that separate action.
Other cases of some interest upon the questions presented here and in the former appeal are Neracher v. Geier, 12 C.C., 259, 4 C.D., 559, and McAllister v. Schlemmer Graber Co., 39 Ohio App. 434, 177 N.E. 841.
We find no prejudicial error in the action taken by the trial judge in sustaining the motion to strike the answer.
The order will be affirmed.
Order affirmed.
WISEMAN, P.J., and MILLER, J., concur.