Ohio Court of Appeals, 1927

Gobeills v. Wheelan

Gobeills v. Wheelan
Ohio Court of Appeals · Decided October 31, 1927 · Levine, Sullivan, Vickery
5 Ohio Law. Abs. 811; 1927 Ohio Misc. LEXIS 977

Gobeills v. Wheelan

Opinion of the Court

*812OPINION OP COURT.

The following is taken, verbatim, from the opinion.

LEVINE, J.

Plaintiff in error places his entire reliance upon the claim that the judgment or order of court was void, for the reason that, under the provisions of General Code, only money be longing to the judgment debtor or any money due him, may be subjected to the payment of a judgment by proceedings in aid of execution; that on the date when the order was made, Palmer had no money due him; that the court is only authorized to reach out and take property belonging to the judgment creditor or money due him at the time of service, and, it appearing that he had no property at that time, and that there was no money due him at that time, therefore the court was powerless to make the order which it did. In brief, it is the contention of plaintiff in error that, having relied upon the ground that the order of the court was wholly void, that the same could be reached by motion, citing opinion of Wilkin, J., Common Pleas, i eported in the Law Reporter of Aug. 31, 1925.

Conceding, for the sake of argument, that a void order may be set aside after term on motion of the party aggrieved, it must be added that this is only true when the record, upon its face, discloses the elements which render the order complained of wholly void.

In order to sustain the contention of the plaintiff in error, the court necessarily would have to take into consideration the matters set forth in the motion to vacate. It does not otherwise appear upon the record. Accordingly, it is our opinion that sections 11631 and 11634 are clearly applicable to the case at bar, and that the Common Pleas was correct in holding that the order complained of cannot be vacated on motion.

(Sullivan, PJ., and Vickery, J., concur.)

Case-law data current through December 31, 2025. Source: CourtListener bulk data.