Opinion
Decided April 14, 1931.
Error proceedings — Final order — Discharging attachment or garnishment — Sections 10259 and 10260, General Code — Section 6, Article IV, Constitution — Person is deprived of substantial right, when — Counties are subdivisions and agencies of state — County auditor and treasurer not within garnishment statute — Section 11829, General Code — Funds in county treasury, not subject to garnishment — Sections 2408 and 10265, General Code — Section 5, Article X, Constitution — Materialmen and laborers protected by public contractor's surety bond — Section 2365-1 et seq., General Code — Proceedings in aid of execution are merely garnishment after judgment.
1. Order of common pleas discharging attachment or garnishment on appeal from justice's court affects creditor's substantial rights and is "final order" within constitutional provision authorizing review (Sections 10259 and 10260, General Code; Article IV, Section 6, Constitution).
2. Person deprived by court order of remedy which he would otherwise possess is "deprived of substantial right" as regards review (Article IV, Section 6, Constitution).
3. "County" is subdivision and agency of state, and is not "body politic," "corporation," or "quasi corporation."
4. Under statute authorizing service of garnishment on "sheriff, * * * marshal of municipal corporation, or other officer," words "or other officer" refer to other municipal officers, not to county auditor or treasurer (Section 11829, General Code).
5. Funds in county treasury are not subject to garnishment, and payment of money therefrom on justice's order is unauthorized (Sections 2408, 10265 and 11829, General Code; Article X, Section 5, Constitution).
6. Garnishment is purely statutory (Sections 10265 and 11829, General Code).
7. Person furnishing material or labor under public contract, although precluded from garnishing county auditor, is otherwise protected by statutes (Sections 2365-1 to 2365-3, General Code).
8. "Proceeding in aid of execution" is in fact garnishment after judgment.
ERROR: Court of Appeals for Tuscarawas county.
Messrs. Seikel, Hill Seikel, for plaintiff in error.
Mr. P.S. Olmstead, for defendant in error.
This is an attachment action having its beginning in a justice of the peace court of Tuscarawas county. In that court the defendant E.J. Larson moved for a discharge of the order of attachment and garnishment for the reason that the funds attempted to be attached are not subject to attachment or garnishment. This motion was overruled.
Under and by virtue of Sections 10259 and 10260 of the General Code, and before the matter was adjudged on its merits in justice court, the defendant appealed therefrom to the court of common pleas, which court upon a consideration of the motion sustained the same and discharged the garnishee proceedings, and remanded the cause to the justice of the peace court. The plaintiff below, Victor Bazzoli, now prosecutes error in this court seeking a reversal of this judgment of dismissal.
But two questions are presented for this court's determination, the first of which is whether the sustaining of the motion by the common pleas court discharging the garnishee proceedings on appeal is a final order from which error may be presented to this court.
We are not concerned with the answer to this question as made before the amendment of the State Constitution in 1912. Prior thereto, it was a matter of statute, but it is now provided in Section 6 of Article IV of the Constitution that this court has jurisdiction to review any final judgment or order of the court of common pleas.
This court has no hesitancy in adhering to the rule announced by the first and ninth districts in Pennington v. Republic Motor Truck Co., 7 Ohio App. 227, and Farrell v. Brazee, 9 Ohio App. 218, that an order of the court of common pleas discharging an attachment on an appeal from the justice's court is one affecting the substantial rights of a party, and a final order within the meaning of the constitutional amendment. When one is deprived by an order of court of a remedy which he would otherwise possess, he is deprived of a substantial right, and the finality thereof does not seem open to question. If the attached property is unlawfully released, a judgment thereafter rendered would in most instances be valueless, and the ancillary remedy of attachment as provided by statute is for the express purpose of preserving an attaching creditor's substantial right, and his claim recoverable, if finally proven, out of the attached property; and to debar him of this right surely is a final order.
The second question presented leads us to a consideration of the affidavit for attachment filed in this case. It is disclosed that "Tuscarawas County" is named therein as the garnishee. It further appears from the constable's return on the summons and order of attachment and notice to garnishee that it was served upon the auditor of that county. Now the defendant by his motion raises purely a question of law; that is, are county funds subject to garnishee proceedings? In other words, the question presented may be thus stated: Can a county or one of its officers be named as garnishee, in an action by a creditor as against his debtor, of funds in its hands or under the control of one of its officers, and it or he be compelled to answer to the claimant or judgment creditor for money due from the county to the debtor?
It is held in State, ex rel. Godfrey, v. O'Brien, 95 Ohio St. 166, 115 N.E. 25, that counties are subdivisions and agencies of the state, and are constituent parts of the plan of permanent organization of state government, and are so constituted by the State Constitution. This being true, it must preclude the idea that a county is a body politic, corporation, or quasi corporation, as advanced by the plaintiff. See, also, County Commrs. of Portage County v. Gates, 83 Ohio St. 19, 30, 93 N.E. 255.
The right to garnishee the funds in question is based on the wording of Section 10265 of the Code, and it is claimed that this section pertaining to practice in justice courts is aided by its companion statute, that is Section 11829, General Code, which has to do with like practice in courts of common pleas. The section applicable to justice court practice, Section 10265, does not provide that a county or its fiscal officer may be garnisheed. Section 11829 provides, in part:
"The service of process of garnishment upon the sheriff, coroner, clerk, constable, master commissioner, marshal of a municipal corporation, or other officer having in his possession any money, claim, or other property of the defendant, or in which the defendant has an interest, shall bind it from the time of service."
It will be noted that the county, its auditor and treasurer, and the county commissioners, are not named therein, and that those named seldom hold in their possession county funds for any length of time, but those are named who by summary process occasionally obtain possession of the funds of another, which they quickly pay into the county treasury if due to the county, or return to the individual, if it be his property. We are of opinion that the Legislature intentionally excluded from this section the county and its financial officials, and we do not think the words "or other officer" refer to the county auditor or treasurer, but rather to other municipal officers. Nor do we think, as suggested by plaintiff, that Section 2408, which prescribes in what instances a county may sue or be sued, can in any way aid the plaintiff's claim.
In the case of Orlopp v. Schueller, 72 Ohio St. 41, at page 58, 73 N.E. 1012, 1014, 106 Am. St. Rep., 583, 2 Ann. Cas., 919, the court remarks, in speaking of Revised Statutes, Section 5531, now Section 11829, General Code: "it undertakes only as stated in its title, to define the effect of service of the process of garnishment upon public officers."
Section 5 of Article X of the Ohio Constitution provides: "No money shall be drawn from any county or township treasury, except by authority of law." We have made diligent search of the statutes and find no provision that warrants a garnishment of funds in a county's treasury, and we know of no provision of law that countenances the payment of money therefrom on the order of a justice of the peace. It hardly seems necessary to state that garnishee proceedings are purely a right created by statute, and there being no statute warranting such garnishment, there is no right or authority for so doing. And the constitutional provision noted is in fact an express prohibition of such a practice.
The claim sued upon in this instance was for work and labor upon a public contract, and it appeals to us that the Legislature in the enactment of Sections 2365-1 to 2365-3, inclusive, made an attempt to and did thereby provide a way whereby one who performed labor or furnished material on public work might be protected; and we believe that the General Assembly in the enactment of these statutes had in mind not only the thought of protecting a laborer and materialman, but also the thought of thereby relieving the county auditor from interference in his official duty by demands made upon him to withhold funds from a public contractor. At least it may be said that a way has been perfected for the laborer's protection, of which he may take advantage.
It is held in Southern Ohio Finance Corp. v. Wahl, Jr., 34 Ohio App. 518, 171 N.E. 369, that a county auditor is not a proper garnishee in a proceeding in aid of execution, and that a county is not subject to attachment in such a proceeding. We are of the view that a proceeding in aid of execution, which is in fact a garnishment after judgment, is very similar to a garnishee process, and that the reason advanced in the Wahl case is pertinent in the instant action.
It is stated in 12 Ruling Case Law, page 842, that "In the absence of express statutory provision clearly evincing the intention to grant the use of the process of garnishment against counties, public policy forbids that they should be subjected to the process. The statutes in force in some states, however, permit the garnishment of counties. But this is not authorized by a statute permitting the garnishment of persons, corporations, bodies politic and corporate, * * *. A judgment against a county as garnishee has been declared void in jurisdictions which deny the right to charge a county as garnishee. Furthermore, a county cannot waive its exemption from garnishment. If such waiver is made, it must be by the defendant in the garnishment proceedings whose interest and right are involved."
The court in National Radiator Co. v. Hobday, 17 C.C. (N.S.), 489, at page 490 (32 C.D., 244), in speaking of the statute upon which the plaintiff relies, says, "But this provision has been generally construed as not applying to public officials, and this is upon a theory of public policy requiring that the course of legal proceedings, and the duties of public officers, shall not be interfered with so as to protract litigation, produce conflict of jurisdiction, or otherwise embarrass the public business, unless the general assembly, by law, unequivocally provides that it may be done."
For the reasons advanced the judgment of the court of common pleas is affirmed, and the clerk is ordered to transmit the judgment and original papers to the justice of the peace before whom this action was commenced.
Judgment affirmed.
LEMERT and MONTGOMERY, JJ., concur.