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1 Ohio C.C. (n.s.) 121

Lauer v. Smith

Ohio Circuit Courts

Decided December 15, 1899

Ohio Circuit Courts · decided 1899-12-15

<p>PROCEEDINGS IN AID OF EXECUTION AGAINST ESTATES OF DECEASED DEBTORS.</p> <p>Sections ¿464, 6105 and 61'oy — Proceedings in Aid of Execution — Garnishment — Claims Against Estates of Deceased Persons.</p> <p>1. The bringing of a suit in aid of execution against an administrator before the expiration of the eighteen months allowed by Section 6105, which suit was dismissed as premature,, is not a bar against an adjudication of the same issues between the same parties, subsequent to the expiration of the eighteen months, no further time having been allowed by court for the collection of the assets.</p> <p>2. The remedial provisions of Section 5464, R. S., are available to every judgment creditor entitled to execution against the property of a debtor, and these provisions apply to an action against the estate of a decedent.</p> <p>3. The bringing of more than one suit between the same parties in the same court concerning the same subject-matter is not a complete defense to an action in good faith for the settlement of the rights of the parties, notwithstanding liability incurred for costs and damages by the party responsible for vexatious suits.</p>

Decided 1899-12-15

Price, J.,

¶1dissenting:

¶2I differ from my associates only upon one proposition. I agree with them that the former adjudication is no bar, for the reason the first petition omitted averments, the assignment of which makes the second petition good. As to the pendency of another action at the time the last case was commenced, which appears from the evidence was dismissed before the second ease came to trial, the second case has been sustained by two decisions, one in Harris v. Trimble, C. S. R., 108, 110, and a case, Porter v. Kingsbury, 77 N. Y., 164.

¶3My only ground of dissent is that Section 5464, Rev. Stat., is intended to confer action in favor of and against living persons —especially living persons; but when a man dies his estate passes into the hands of persons representing him, and all rights must be worked out against the administrator through the provisions of the special procedure provided for the settlement of the estates of deceased persons, and -Section 5464, Rev Stat., ought not to apply in this ease.

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