Opinion
No. 40486
Decided July 5, 1967.
Jurisdiction — Municipal Court — Action to marshal liens and for foreclosure and sale — Common Pleas Court order in divorce action no bar.
An order made by a Common Pleas Court in a divorce action with regard to the rights of the parties to the action as between each other in certain real estate premises belonging to the parties, and concerning the obligations of the husband to pay the amount of the liens upon the real estate premises, and reserving jurisdiction to make a further order for support if said liens are not paid, is not a bar to the jurisdiction of the Cleveland Municipal Court in a separate action instituted by mechanic's-lien claimants and judgment lienholders to marshal liens and order foreclosure and sale of the real estate premises for payment of the liens pursuant to Sections 1311.16 and 2323.07, Revised Code.
APPEAL from the Court of Appeals for Cuyahoga County.
This is an action to foreclose a mechanic's lien instituted by Louis Swirsky in the Cleveland Municipal Court against Iwan Iwanyckyj and Maria Iwanyckyj. Defendants Joseph Z. Dachman, Irving Goodman and The Economy Savings Loan Company, judgment lienholders, filed answers and cross-petitions asking that their liens be marshalled. Defendant The Parma Savings Company filed an answer setting forth its mortgage. The defendant Iwan Iwanyckyj is in default, having filed no pleadings, although he was properly served by legal process according to law. Defendant Maria Iwanyckyj filed an answer and cross-petition.
The Cleveland Municipal Court found that the plaintiff, Swirsky, had a good, valid and subsisting mechanic's lien against the premises of the defendants Iwan Iwanyckyj and Maria Iwanyckyj and entered judgment for the plaintiff against the defendants in the amount of the prayer of plaintiff's petition. The court entered judgment against the defendant Iwan Iwanyckyj in favor of defendant-cross-petitioners Dachman, Goodman and The Economy Savings Loan Company in the amounts of their judgment liens. The Parma Savings Company did not pray for judgment and no disposition was made with regard to the answer of The Parma Savings Company setting forth its mortgage.
The court entered judgment for the plaintiff, Louis Swirsky, and the defendant Joseph Z. Dachman, upon the cross-petition of the defendant Maria Iwanyckyj.
The court found further that defendant-cross-petitioner Dachman, defendant-cross-petitioner Goodman and defendant-cross-petitioner The Economy Savings Loan Company, each had good and valid judgment liens against the undivided one-half interest in the premises of the defendant Iwan Iwanyckyj.
The Cleveland Municipal Court found further that by reason of a prior divorce action in the Common Pleas Court of Cuyahoga County and the divorce decree in that case, the Common Pleas Court had pre-empted the matter, and that, therefore, the Municipal Court had no jurisdiction and is estopped from making any order to marshal the liens and order foreclosure and sale of the premises of Iwan Iwanyckyj and Marie Iwanyckyj.
The Court of Appeals affirmed the judgment of the Cleveland Municipal Court.
The cause is before this court upon the allowance of a motion to certify the record.
Messrs. Dachman Dachman, for appellants.
Messrs. Steuer Steuer, for appellee.
The question for this court to determine is: Was it error for the trial court, after it found that the plaintiff, Swirsky, had a valid mechanic's lien upon the premises of the defendants Iwan Iwanyckyj and Maria Iwanyckyj, and that the defendant-cross-petitioners had valid judgment liens upon the undivided one-half interest of Iwan Iwanyckyj in the premises, to refuse to marshal the liens and order the foreclosure and sale of the premises?
The trial court was in error in its refusal to marshal the liens and order foreclosure and sale.
The fact that the Common Pleas Court, in the divorce action, made certain orders with regard to the rights as to each other of Maria Iwanyckyj and Iwan Iwanyckyj in the real estate premises and with regard to the obligation of Iwan Iwanyckyj to pay the amount of the liens upon the premises and reserved jurisdiction to make further orders for support if such liens were not paid, is not a bar to the jurisdiction of the Cleveland Municipal Court in the separate action to marshal liens and order foreclosure and sale of the property for the payment of the liens pursuant to Section 1311.16, Revised Code, and Section 2323.07, Revised Code, which latter section provides in part:
"When a mortgage is foreclosed or a specific lien enforced, a sale of the property shall be ordered."
The judgment of the Court of Appeals is reversed and the cause is remanded to the Municipal Court.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, HERBERT and SCHNEIDER, JJ., concur.