Dewoody v. Dewoody

Opinion by Mr. Chief Justice Sterrett, In January, 1892, A. L. Dewoody’s real estate was sold by appellant, then sheriff of Yenango county, on executions in favor, of Perry Dewoody and others, for eleven hundred and ten dollars. In September following,'the court, on motion of counsel for A. W. Dewoody, who claimed to be a co-defendant with ■said A. L. Dewoody in another judgment, made a peremptory order on appellant, as sheriff, etc., to pay into court $500 of the money realized by said sale. So far as appears, this was done without notice to him. Shortly afterwards, he presented his petition, averring, in substance, that prior to the making of said order he had paid said money to Perry Dewoody, a judgment creditor of the defendant in the execution, and praying for leave to answer the motion on which said order was granted, and assign reasons for the vacation thereof. That petition was denied. The subjects of complaint, as presented in the specifications, of error, are (1) the peremptory order, etc., and (2) the refusal of the court to entertain his petition. The order in question having been made without notice to appellant, he of course had no day in court in relation thereto. It is scarcely necessary to say that such an ex parte proceeding against a public officer, or any one else, is unwarranted and erroneous. In this case, the error was perpetuated by the re [605] fusal to entertain appellant’s petition. He was clearly entitled to a hearing in some form; and that may yet be accorded him by reinstating his petition and directing the court to proceed thereon in the regular and orderly way. The order refusing appellant’s petition is therefore reversed and set aside, and a procedendo awarded. See also the preceding case.