Opinion
No. 28719
Decided July 1, 1942.
Execution — Proceedings in aid in Common Pleas Court — Written demand for excess over exempt personal earnings of debtor — Section 10272, General Code, inapplicable.
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.
APPEAL from the Court of Appeals of Sandusky county.
This case originated in the Court of Common Pleas of Huron county, Ohio, where Stein-Orebaugh, Inc., appellee herein, was awarded a judgment against Floyd Andre, appellant herein.
Thereafter a proceeding in aid of execution was instituted by the plaintiff in the Common Pleas Court of Sandusky county, Ohio, in which proceeding it was sought to have personal earnings due Floyd Andre from his employer applied to the payment of the judgment.
More than five days and less than thirty days prior to the filing of the proceedings in aid of execution, the plaintiff sent the defendant a demand in writing that the excess of his personal earnings above his exemptions be applied to the satisfaction of the judgment. This demand was sent by ordinary unregistered mail and was delivered to the residence of Floyd Andre. No response was made to this demand by the defendant.
Upon hearing in the Common Pleas Court of the proceeding in aid of execution, the employer appeared and answered that he had in his possession certain wages due to Floyd Andre. The defendant then moved that the proceedings in aid be dismissed because of the failure to serve a demand for personal earnings by either of the three methods specified in Section 10272, General Code. The Common Pleas Court sustained the motion on the ground that the provisions of Section 10272 had not been complied with, and dismissed the proceeding in aid of execution at the plaintiff's costs. Upon appeal to the Court of Appeals, that judgment was reversed and the case remanded to the Court of Common Pleas. The case is before this court pursuant to the allowance of a motion to certify.
Mr. Earl S. Miller, for appellee.
Messrs. Stahl, Stahl Stahl, for appellant.
This case falls within a very narrow compass. The basis of the motion to dismiss the proceedings in aid of execution urged in the Common Pleas Court was that the notice of demand for personal earnings was delivered by ordinary mail and that such delivery did not comply with the provisions of Section 10272, General Code. The Court of Common Pleas considered this contention well founded and dismissed the proceedings in aid on that ground. This was the single issue considered in the Court of Appeals. That court took the view that under Section 10272, General Code, the delivery of the creditor's demand was permissible by ordinary mail, and so remanded the cause for further proceedings. This action was clearly correct since the record indicates that the demand was in fact served "by leaving it at defendant's [debtor's] usual place of residence by means of the postman by regular mail," which was clearly one of the permissible methods of service under the provisions of Section 10272, General Code.
Although in both courts below this cause has thus revolved around the interpretation of Section 10272, General Code, we believe that section has no application to proceedings in aid of execution in the Court of Common Pleas, the court here involved. Section 10272, General Code, stems from Section 40 of an "Act of the Jurisdiction and Procedure before Justices of the Peace" enacted in 1853. 51 Ohio Laws, 179, 188. This act and its successors have repeatedly been held to relate to proceedings in the justice's court. The specific requirement of Section 10272, General Code, relating to the service of demand preliminary to reaching the personal earnings of a judgment debtor was added in 1900. 94 Ohio Laws, 376. This requirement has been continuously held applicable to proceedings in aid in the justice's court, and never so far as we have been able to find has it expressly been held applicable to proceedings in aid in the Court of Common Pleas. Section 10272 is placed in the remedial subdivision of the General Code under the caption "Procedure in Justice's Court." The governing statutes relating to proceeding in aid in the Common Pleas Court are Sections 11772 and 11781, General Code. While these sections require as preliminary to reaching debts or personal earnings due the judgment debtor that there shall first be a return of an execution filed, there is no requirement of service of a demand upon the judgment debtor such as is required under Section 10272, General Code. Here then is found further and sufficient reason for overruling in the case at bar the judgment debtor's motion to dismiss the proceedings in aid. The statute under the terms of which the motion to dismiss was made has no applicability.
Accordingly the judgment of the Court of Appeals remanding the cause for further proceedings to the Court of Common Pleas is affirmed.
Judgment affirmed.
WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS, HART and ZIMMERMAN, JJ., concur.