Hawk v. Kiser , 51 Ohio App. 359 ( 1935 )

The motion to dismiss the appeal is granted.

This case is heard on the petition in error.

Plaintiff, Elizabeth Hawk, brought her action in the Court of Common Pleas of Sandusky county, against Frank C. Kiser and Anna M. Kiser, as defendants. The action was for money. In that action, plaintiff, Elizabeth Hawk, filed an affidavit in attachment. In that affidavit for attachment is the following:

"Affiant further says that she has good reason to believe and does believe that one I.G. Stout of Fremont, Ohio, Administrator of the Estate of Elizabeth Munch, has monies of said defendant, Anna M. Kiser, in his possession as such administrator for distribution."

It will be noted that there is no statement in the affidavit that an order of distribution has been issued to the administrator.

Anna M. Kiser thereupon filed a motion to discharge the attachment, one of the grounds being that the statement of facts in the affidavit for attachment, even if true, is not sufficient to warrant the issuing of the attachment in this case. The trial court overruled the motion. The overruling of the motion is among the grounds of error presented here.

The question of the right to attach moneys in the hands of an administrator was decided in the case of Orlopp v. Schueller,Admr., 72 Ohio St. 41, 73 N.E. 1012, 106 Am. St. Rep., 583. In that case, the Supreme Court in construing Section 5531, Revised Statutes, said:

"Property or money held by the executor or administrator of an estate in his representative capacity, cannot be reached by attachment or garnishee process in an action against the heir or legatee before an order of distribution has been made."

This was the common law rule, and was based on the proposition that the money in the hands of an executor or administrator is held in custodia legis. The court held that this was the law unless changed by statute. That there is no provision in the statute changing the rule with reference to executors and administrators was determined by the Supreme Court in the Orloppcase, supra, and we know of no provision of the statute changing the rule subsequent to that decision.

There being no authority in law for levying the attachment on the funds in the hands of the administrator, the Court of Common Pleas erred in overruling the motion to discharge the attachment. The judgment is, therefore, reversed, and the cause remanded to the Court of Common Pleas of Sandusky county with instructions to grant the motion and discharge the attachment.

Judgment reversed and cause remanded.

ROSS, P.J., and MATTHEWS, J., concur.

ROSS, P.J., MATTHEWS and HAMILTON, JJ., of the First Appellate District, sitting by designation in the Sixth Appellate District.