State Ex Rel. Holland v. Struble

By the Court. This proceeding in mandamus comes into this court as of right, having originated in the Court of Appeals of Morrow county, where the writ sought was denied. The essential facts are not in dispute and may be very concisely stated. In the distribution of funds resulting from a mortgage foreclosure sale, the sum of $1151.11 was, on Jpne 15, 1936, ordered by the Common Pleas Court to be paid to the relators. Previously, one Robert Bennett had recovered a judgment against the relators in the sum of $263.15, and on June 12, 1936, the sheriff, pursuant to an alias order of execution, levied on the amount theretofore awarded the relators in the sum of $311.02, being the amount of Bennett’s judgment, interest and costs. Thereafter, with counsel for all parties present, the Court of Common Pleas, upon hearing, found the levy proper and valid and ordered the sum of $311.02 paid by the sheriff in discharge of the Bennett judgment. There was no objection.to the manner of the levy. No appeal was taken from the final order of the Com *432 mon Pleas Court, and that judgment continues in full force and effect. Relators thereafter instituted this mandamus action to compel the payment to them of the entire sum of $1151.11, resulting from the foreclosure proceeding. The primary legal question thus presented is so elementary as to require no discussion. The judgment of the Common Pleas Court was subject to review upon appeal. This action in mandamus constitutes a collateral attack and cannot be maintained. Judgment affirmed. Weygandt, C. J., Jones, Matthias, Day, Zimmerman, Williams and Myers, JJ., concur.