First National Bank v. Houghton (41 Ohio App. 305, 1931)

Sheriok, P. J.

This cause is appealed to this court by the First National Bank of Wellington. By its petition it seeks to require the sheriff of Ash-land county to amend a foreign execution appearing on his docket by substituting the name of the plaintiff bank therein for that of the First Wellington Bank, of Wellington, Ohio.

The petition also makes Charles H, and Myrtle M, Davidson parties defendant to the suit. They are subsequent purchasers, the grantees of the defendant Houghtons, and present owners of the premises levied upon under this execution. The Savings & Loan Banking Company of New London, Huron county, as a mortgagee of the Davidsons, is also made a party defendant. As against these defendants the petition further prays that the liens be marshaled, the priorities determined, the premises sold, and that the lien of the plaintiff bank be first satisfied.

It appears that the plaintiff bank on December 12, 1928, obtained a judgment for a considerable sum against John H. and Charles D. Houghton in the court of common pleas of Lorain county; that upon this judgment duly entered this execution was issued out of that court, but through an error inadvertently made by the clerk of that court the plaintiff bank was improperly named as plaintiff therein, as previously recited. The execution as issued to the sheriff of Ashland county was properly docketed by him, and a levy was made under this writ upon the Houghtons’ land, now owned by the Davidsons, before the premises were mortgaged by the Davidsons to the New London Bank.

It also happened that the sheriff of Ashland county neglected to index this execution, both for and against, as provided by law, and that the docket entry of the execution could only be found by leafing the docket page by page.

It appears from the evidence presented in the trial court, the record of which is offered in this court, that there are certain facts developed that nlight indicate that both the banks and the David-sons were negligent in some degree, but it is conceded that the banks were innocent actors in the regrettable situation now developed, and that they had no knowledge thereof. The Davidsons are likewise innocent parties, who seem to have done all things usually imposed on purchasers for their protection against outstanding liens.

Before we may be concerned with the merits and right of the plaintiff bank to the principal relief sought it is necessary that this court should first determine whether the plaintiff bank is entitled to a reformation and an amendment of the foreign execution, which is the basis of its claimed lien.

It is provided in Section 11363, General Code, that a court before or after judgment, in furtherance of justice, may permit an amendment of any process by correcting a mistake in the name of a party. This statute is no doubt but a declaratory provision of the recognized inherent right in a court to malee its records and processes speak the truth. And it has been recognized in this state in Waggoner v. Lessee of Dubois, 19 Ohio, 67, that a writ of execution is such a process as may be amended. And it has at numerous times been determined that where a process is defective, in that a party is misnamed, the misnomer may be corrected. A valuable brief on the subject of a court’s right to permit amendment of an execution is to be found in the note appearing in 101 Am. St. Rep., 550, to which attention is directed.

However, we find that there is a limitation upon the recognized right of a court in the exercise of its discretion that properly limits this prerogative within the bounds that no such amendment may be countenanced when the effect thereof will jeopardize the rights of innocent third parties which have intervened between the time of levy and the date of amendment. Such is the rule in this state as expressed in Ohio Life Ins. & Trust Co. v. Urbana Ins. Co., 13 Ohio, 220, and in Barry v. Hovey, 30 Ohio St., 344, 349. It being admitted that the present owners and the mortgagee bank are innocent and bona fide purchasers without knowledge of the plaintiff’s claimed lien, it must follow that the plaintiff is not entitled in equity to an amendment of this writ. Such being true, it appeals to us that the plaintiff has no enforceable lien in this instance as against the innocent intervening parties.

We perceive no reason why special sanctity should attach to a foreign execution by reason of the fact that a judgment creditor seeks thereby to perfect a lien in another jurisdiction; and we are not convinced that this is one of those situations where the equities are equal and hence that which is prior in time should be preferred.

But there is another and far more powerful reason why the plaintiff must fail in this action. By this appeal, this court as an appellate court is called upon to correct an error in the process of an inferior court of another jurisdiction. In other words, we are called upon to correct a writ issued out of the common pleas court of Lorain county.

A reading of the Section 11363, General Code, indicates beyond question that such amendments are permissible only in that court out of which the .process is issued. To permit otherwise would be to say that one court having full jurisdiction in a matter may be interfered with by any other court. The absurdity of such a practice is at once apparent. We have made diligent search in other jurisdictions and find that in very few the practice has been approved of; that is, that a court in one proceeding may cause amendment of its records in another proceeding therein. We question the soundness of the éxercise of such a discretion.

It is said in 17 Cyc., 1043 and 1044, that: ‘ ‘ The power to correct errors and mistakes in executions is unquestionable and necessarily belongs to every court of record, and the court which issued the execution is the proper one to make any amendment as one court cannot be permitted to correct the errors in the process of another court.” This rule is recognized in the early case of Bisbee v. Hall, Wright, 59, wherein that court said: “This court cannot correct the errors of the process of another court.” To the same effect, see Clarke v. Miller, 18 Barb. (N. Y.), 269, and also the authorities noted in 13 Am. Dec., 176, note, and 17 Ohio Jurisprudence, page 785, Section 92.

It therefore appearing that this court and the court of common pleas of this county are without jurisdiction of the subject-matter incident to the granting of an amendment of the foreign execution upon which plaintiff claims, and upon which its right to marshal liens is dependent, it must follow that the plaintiff’s petition should be and hereby is dismissed.

Petition dismissed.

Lemert and Montgomery, JJ., concur.