Soinski v. Wardaszko (38 Ohio App. 388, 1930)

Williams, J.

Clara Soinski, plaintiff in error here, recovered a judgment in the court of common pleas of this county against Robert Wardaszko, the defendant in error, in the sum of $12,500 for breach of contract of marriage, and seduction under promise of marriage. Error was prosecuted to this court, and the judgment affirmed.

Thereupon the judgment creditor filed in the court of common pleas a motion for allowance of an execution against the person of the judgment debtor, under Section 11745, General Code, averring that an execution against property had been returned “no money made, not satisfied; ’ ’ that thereafter proceedings in aid of execution were had in the probate court of this county, and on examination the judgment debtor claimed to own no property; that the judgment remains wholly unpaid, and that it was “rendered on an obligation fraudulently obtained in that it arose from a breach of marriage promise and from seduction through such marriage promise. ’ ’ • The motion was in the form of an affidavit and was sworn to. The. court of common pleas sustained this motion and entered upon its journal a finding that the judgment was unpaid, and that it was rendered upon an obligation “fraudulently incurred, to wit: Breach of marriage promise and seduction through promise of marriage.” This finding was followed by an order for the arrest of the defendant, the judgment debtor. Process was issued and he was apprehended. Thereupon he filed a motion to vacate and set aside the order of arrest and for his discharge. On hearing of this motion, no evidence was taken, as shown by the bill of exceptions. The court, however, sustained this motion and discharged the defendant, apparently upon the theory that breach of promise of marriage, accompanied by seduction under such promise, does not constitute fraud. The judgment creditor thereupon filed a petition in error in this court and seeks a reversal of this judgment.

Section 15, Article I, of the Constitution of Ohio, forbids imprisonment for debt in a civil action, except in cases of fraud. Under Section 11745, General Code, an execution against the person of a debtor may be issued on a judgment for the payment of money when he fraudulently incurred the obligation upon which the judgment was rendered. The holdings of the courts have been uniform that, where a man, under promise of marriage, seduces a woman, and the seduction is brought about by means of the promise of marriage, and he then breaks his promise and abandons her, his action constitutes a fraud in the eye of the law. In Matter of Sheahan, 25 Mich., 145; Hood v. Sudderth, 111 N. C., 215, 16 S. E., 397; Perry v. Orr, 35 N. J. Law, 295; Polhemus v. Melides, 96 N. J. Law, 105, 113 A., 503; 5 Corpus Juris, Subject “Arrest,” Sections 83, 96, 113; 4 Ruling Case Law, 154, Section 12. See, also, the following annotations: 34 L. R. A., 639; 59 L. R. A., 957.

' We have no difficulty in reaching the conclusion that the facts set forth in the motion for the allowance of execution against the person of the judgment debtor filed by the judgment creditor, and sworn to by her, constituted a charge of fraud within the meaning of Section 11745, General Code. The court below, therefore, could not lawfully discharge the defendant from custody without a hearing as to the truth of the charges upon evidence after arrest was made, and in discharging defendant the court erred to the prejudice of the plaintiff in error.

The judgment of the court below will therefore be reversed, and the cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

Lloyd and Richards, JJ., concur.