Opinion
No. 23688
Decided March 14, 1956.
Judgment on warrant of attorney — Proceeding in aid not subject to dismissal, when — Relief after judgment — Chapter 2325, Revised Code — Discharge in bankruptcy an affirmative defense, when.
1. Discharge in bankruptcy is an affirmative defense to a judgment taken against the bankrupt after such bankruptcy proceeding has been concluded.
2. A proceeding in aid of execution cannot be dismissed in an ancillary proceeding to a judgment taken in a term preceding the filing of a motion to dismiss such proceeding, without seeking relief against such judgment under Chapter 2325 of the Revised Code, which provides for relief after judgment.
APPEAL: Court of Appeals for Cuyahoga County.
Mr. Max D. Gustin and Mr. S. J. Knerly, for appellant.
Mr. Morris R. Blane, for appellees.
No bill of exceptions was filed in this case, so that all errors claimed must be demonstrated on the face of the record. The record shows that the plaintiff took its judgment on a warrant of attorney on February 23, 1955. It is further disclosed that after the term in which judgment was taken, that is on September 17, 1955, a special proceeding in aid of execution was instituted (two other such proceedings had been previously started and dismissed) without challenging the judgment or seeking relief under the provisions of Chapter 2325 of the Revised Code. The defendant, by motion, attempted to stop the enforcement of the judgment by seeking dismissal of the proceeding in aid of execution. The claim of the defendant that the debt had been discharged in bankruptcy shows on the face of the record that the judgment in this proceeding was not taken, nor was the action filed until after the defendant's discharge in bankruptcy had been entered on May 7, 1954. The Municipal Court was, therefore, without authority to stay or dismiss the aid proceeding until the judgment had been vacated or its operation suspended by a proceeding instituted under the authority of Chapter 2325 of the Revised Code. Discharge in bankruptcy is an affirmative defense to a judgment taken against the bankrupt after such bankruptcy proceeding has been concluded. The issue of the legal right of the defendant to a discharge from the debt upon which judgment was taken can then be litigated. There is no such thing as a motion to stay an ancillary proceeding to a judgment taken in a term preceding the filing of such motion, without seeking relief against the judgment under Chapter 2325 of the Revised Code. This cause is remanded with instructions to reinstate the aid proceeding dismissed by the court and for further proceedings according to law.
Judgment accordingly.
KOVACHY, P. J., SKEEL and HURD, JJ., concur.