Strezoff v. Georgeoff , 8 Ohio Law. Abs. 412 ( 1930 )

PER CURIAM

We are of the opinion that the court erred in not granting said motion,, because the petition did not set forth facts which justified the issuance of an injunction, and the petition was not sworn to positively. We recognize that a judgment debtor may sometimes obtain equitable relief against the enforcement of a judgment against him where he holds a claim or cross-demand against his judgment creditor, even though his claim has not been reduced to a judgment; but in such case some reason must be alleged why his legal remedy on such claim is inadequate — such as that the judgment creditor is insolvent; but merely alleging some irregularity in obtaining the judgment, where there is no claim of fraud on the part of the party obtaining the judgment, is not sufficient— there being an adequate remedy for the correction of such irregularities by proceedings in the case where they occurred; but in this case no facts showing an irregularity are plead.

The judgment for $500 was entered at one term of court and the motion to set aside the same was filed during said term but was disposed of in the succeeding term. The adjudication on that motion precluded any further attack upon the judgment. The remedy of Georgeoff was to attack the ruling on said motion by a motion filed in the case. If successful and the motion to set aside the ruling on the motion to set aside the judgment was granted, then the motion to set aside the judgment could be passed upon again. ,and the parties could save their rights. But no fraud being claimed, neither said judgment nor the ruling on the motion to set it aside could be set aside in an action in equity.

If the action be considered merely as one to enjoin the collection of the $500 judgment until the claims of Strezoff against Georgeoff are litigated, then the petition is not sufficient, because no facts are alleged showing that the legal remedy of Strezoff was inadequate.

Funk, PJ., Pardee, J., and Washburn, J., concur.