Opinion
1946-11-22
SMITH v. MacKENZIE et al.
Hoover, Beall, Whitman & Eikel, of Cincinnati, for plaintiff. Gordon F. DeFosset, of Cincinnati, for defendants.
Suit by Spencer Smith against Malcolm MacKenzie and others to enjoin eviction of plaintiff from leased premises. On defendants' demurrer to the petition and motion to vacate a temporary restraining order.
Demurrer sustained, motion granted, and cemporary restraining order vacated.Hoover, Beall, Whitman & Eikel, of Cincinnati, for plaintiff. Gordon F. DeFosset, of Cincinnati, for defendants.
RYAN, Judge.
The petition herein alleges, among other things, that the plaintiff is a resident of the City of Cincinnati; that Julius P. Mund is the sheriff of the Municipal Court of the City of Cincinnati; that the defendants, Malcolm MacKenzie and Clara MacKenzie, are the owners of the premises at 3309 McHenry Road and that the plaintiff is a tenant in possession of the second and third floors thereof and that he paid his rent to said defendants through and including October 31, 1946. This action was instituted October 21, 1946.
Plaintiff further says that defendants filed suit against the plaintiff in the Municipal Court asking for the restitution of the premises and that on September 23, 1946, the Municipal Court issued a writ of restitution to the sheriff and that the said sheriff did not within ten days after receiving the writ restore the plaintiff to the possession of the premises as required by law and that he now has notified the plaintiff that he will execute the writ and eject the plaintiff from the premises on October 22 which will be twenty-nine days from the date the said sheriff received the writ.
Plaintiff says that the sheriff has no legal right after the expiration of ten days to execute said writ; that said writ must be executed within ten days or same becomes void and, further, that after the expiration of ten days, as aforesaid, to evict said plaintiff from said premises under said writ would be a violation of said plaintiff's legal rights, not due process of law and in violation of Section 10461 of the General Code of Ohio.
Plaintiff further says that unless enjoined by this Court the defendants herein will evict said plaintiff from said premises by this void and illegal process thereby depriving him of substantial property rights without proper legal proceedings and for which he has no adequate remedy at law.
On the filing of the petition a temporary restraining order was issued.
The defendants demurred to the petition on the ground that the same does not state facts sufficient to constitute a cause of action.
As will be noted from the petition the plaintiff's main contention is that the sheriff has no legal right, after the expiration of ten days, to execute the writ of restitution; that the writ must be executed within ten days or same becomes void and further that after the expiration of ten days to evict plaintiff from the premises, under said writ, would be a violation of plaintiff's legal rights and not due process of law and in violation of Section 10461 of the General Code of Ohio.
The defendants in support of their demurrer insist that the writ of restitution issued to the sheriff is valid and that it was issued in compliance with a valid and subsisting judgment of the Municipal Court of Cincinnati.
In support of his petition the plaintiff cites General Code Section 10461, the provision of which is as follows: ‘Writ, how enforced. Within ten days after receiving the writ, the officer shall execute it by restoring the plaintiff to the possession of the premises, and shall levy and collect the costs and make return, as upon other executions. If the justice receives a notice from the clerk of the Common Pleas Court, whose duty it is hereby made to issue such certificates under its seal, that proceedings have been stayed by the filing of an appeal and the bond required by law, in the Court of Common Pleas, he immediatly shall issue his order to the officer executing the writ commanding him to delay all further proceedings upon the execution. If the premises have been restored to the plaintiff, he shall forthwith place the defendant in possession thereof, and return the writ with his proceedings and the costs taxed thereon.’
Plaintiff contends that the word ‘shall’ in the above section is a mandatory word and that if the writ is not executed within ten days after its issuance that the whole proceeding becomes null and void.
The defendants contend that the valid and subsisting judgment cannot be held for naught merely because a ministerial officer has failed to perform his duty within a specified time.
It is the opinion of this Court that the provisions of the statute, insofar as they relate to the sheriff or other officer whose duty it is to execute the writ of restitution, are mandatory under the provisions of Section 10461; that he may be compelled by mandatory order to perform the duty specifically enjoined by law and that he may further be subjected to an action for damages for failure to exercise such writ. Bode v. Mungavin, 2 Ohio N.P. 269. A rather anomalous situation would exist if, after a judgment has been rendered by the court, the sheriff, constable or other ministerial officer by his failure, whether deliberate or negligent, could vacate or nullify the judicial pronouncement.
The Court finds the demurrer to the petition to be well taken and therefore sustains the same.
As to the motion to vacate the temporary restraining order issued at the time of the filing of this action the Court finds the same to be well taken and said motion will be granted and said temporary restraining order vacated, set aside and held for naught.