State ex rel. Voight v. Lueders
State ex rel. Voight v. Lueders
Opinion of the Court
The crux of this case lies in the attempt to subject the ten shares of the capital stock of the United States Wall Paper Company, by execution, to a personal judgment alleged to have been
The sole jurisdiction of the probate court was to ascertain, for the purpose of distribution, the amount of money paid, loaned or advanced by Lewis Voight, Sr., to Lewis Voight, Jr., after September 1, 1907, and to charge the interest derived from the estate by Lewis Voight, Jr., with said sum. The extent of its jurisdiction in case 8240, wherein the execution was issued, was to determine the equities pf the~-parties, determine priorities, and order distribution. (Section 10783, General Code; First National Bank of Cadiz v. Beebe, 62 Ohio St., 41.) However, from an inspection of the two entries made by the probate court nothing further was attempted, and in neither case was there a personal judgment rendered against Lewis Voight, Jr., in favor of the estate. In both cases a finding of the amount due the estate was made to recompense the estate for the amount loaned. In The real estate sale case, recoupment was sought from the proceeds of sale; and in the administration case, from the stock bequeathed.
It is perfectly clear that the judgment of the probate court cannot be used as a predicate for the issuance of an execution against the ten shares of stock newly acquired by Lewis Voight, Jr., by
The issuance and placing of the execution in the hands of the sheriff for service was an act of William H. Lueders, not as judge, but as ex officio clerk of the probate court. It was not an act embracing any judicial function, neither did it affect juridically the jurisdiction of the court. The judge issuing this execution was exercising neither judicial nor quasi-judicial power. (State, ex rel., v. ClenDening et al., 93 Ohio St., 264.) His act was purely clerical and ministerial. The governing principle is stated in 22 Ruling Case Law, page 15: “Except in those cases where some valid constitutional or statutory enactment declares directly to the contrary, it must appear that the act in question is not ministerial in character. If it is
It follows, therefore, since other ample and adequate remedy is supplied the relator, and because the act sought to be prohibited is purely ministerial, that the relator, for either reason should be denied the writ of prohibition.
Writ denied.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.