Jones v. Kampman

DUSTIN, J. We think the1 motion in each case to dismiss the appeal should be sustained, upon the ground that a revivor is a special proceeding and not a civil action, and, hence, not covered by Sec. 12224 G. C. The original action in each case was for money only, and a jury could have been demanded. We are unable to see why a judgment of revivor, which is held in Misner v. Misner, 41 Ohio St. 678, and in Bartol v. Eckert, 50 Ohio St. 31, 45 [33 N. E. Rep. 294], to be an additional proceeding in the same case, is entitled to the privileges of an appeal not allowed in the original action. It is contended that the proceeding, while nominally to revive a judgment, is in reality to revive a lien. The motion for an order of revivor does not allege any levy or lien. It simply alleges ■ ownership of certain lands by the judgment debtors, which lands have descended to the defendants. We are not aware of any law by which a lien may be “revived,” or even declared, under such circumstances. Nor are we aware of any law by which a judgment may be revived against the heirs of a judgment debtor. The heirs, of [571] •course, to the extent that they have inherited, are liable for the debts of the ancestor, but they are not liable on the judgment against the ancestor and can not be made judgment debtors. They may have inherited only $500 and the judgment may be for $5,000. There is no allegation here as to values, and a judgment for the full amount against the heirs would be a manifest, injustice and wholly unauthorized by statute. The averments of the plaintiff do not even show that the original jiidgment debtors were owners of their respective tracts •of land at the time of the rendition of the judgment. In Smith v. Hogg, 52 Ohio St. 527 [40 N. E. Rep. 406], it is held that: “A dormant judgment * * * does not, by virtue of its revivor, become a lien on lands acquired by the' debtor after its ■original recovery, unless a levy is made thereon before it became dormant or after its revivor.” And it is held in Miller v. Taylor, 29 Ohio St. 257, that: “A judgment in personam, under which no specific lien on real estate was acquired during the lifetime of the judgment debtor, can not be revived and enforced against the heirs. ’ ’ It does not appear here that there was a specific or even a general lien against the property of the judgment debtors. We are, therefore, of the opinion that not only was- the proceeding to revive not appealable, but was not maintainable ■originally. A part of this opinion is obiter, but we thought it might be more satisfactory to give our views on the revival proceedings than simply to dismiss the appeals on the technical ground first indicated. Allread and Ferneding, JJ., concur.