25475. Examination of debtor of judgment debtor. Effect of such order. Notice to parties. After the return of an execution against the property of a judgment debtor, or of one of several debtors in the same judgment, and upon proof, in writing, by affidavit, or otherwise, to the satisfaction of the judge, that a person or corporation has property of such judgment debtor, or is indebted to him, the judge may, by an order, require such person or corporation, or any officer or member of the corporation, to appear at a specified time and place, within the county in which such person or corporation is served with the order, and answer concerning the same; the service of the order shall bind the property in the possession or under the control of such person or corporation from the time of service; and the person or corporation so served with the order shall be liable to the judgment creditor for all property, money, and credits in his hands belonging to the judgment debtor, or due to him from such person or corporation, from the time of service; but if, on the filing of the affidavit of the judgment creditor, his agent or attorney, the judge is satisfied of the existence of any of the grounds upon which an order of attachment may be issued, as provided in ? 5521, the order may be issued before the issue and return of execution; and the judge may also require notice of such proceeding to be given to any party in the action, in such manner as may seem to him proper. [71 v. 53, 464.]

Debtor of execution debtor can not, after service of order, discharge himself by payment to execution debtor of his indebtedness, 6 O. S. 255. Examination of debtor not subject to review, 11 O. S. 569. Judgment in such proceedings against judgment debtor and his debtor, ordering the latter to pay the amount due from him to judgment creditor, protects him from suit on same demand by judgment debtor; effect of reversal of judgment in original case, 2 C. C. R. 77.

25476. Person not excused from answering because examination may convict him of fraud. No person shall, on examination pursuant to this subdivision, be excused from answering any question on the ground that his examination will tend to convict him of a fraud; but his answer shall not be used as evidence against him in a prosecution for such fraud. [51 v. 57, ? 462; S. & C. 1089.] This section does not apply to a civil action based on discov

eries made in such proceedings in the probate court, and brought for the purpose of applying upon a judgment property subject to such application, 40 Ŏ. S. 345.

5477. Reference by judge to referee. The judge may, in his discretion, order a reference to a referee agreed upon, or appointed by him, to report the evidence or the facts. [51 v. 57, 472; S. & C. 1091.] Testimony before referee may be used as a deposition in the case, 8 Rec. 364. Refusal to confirm referee's finding not subject to review, 2 Clev. R. 185.

25478. Proceedings may be continued. The judge or referee, acting under the provisions of this chapter, may continue his proceedings from time to time, until they are completed. [51 v. 57, % 471; S. & C. 1091.]

25479. Attendance of parties and witnesses enforced. A party or witness may be compelled, by an order of the judge, or by a subpoena, to attend before a judge or referee, to testify. [51 v. 57, 22 465, 466; S. & C. 1090.]

Attendance enforced only by order of judge, 1 Clev. R. 26; see 11 Bull 144.

25480. Examination before referee to be certified. Oath. If before a referee, the examination must be taken by the referee, and certified to the judge; all examinations and answers before a judge or referee must be on oath; and when a corporation answers, the answer must be on the oath of an officer thereof. [51 v. 57, 2466; S. & C. 1090.]

See 2 5213.

25481. How disobedience of order punished. If a person, party, or witness disobey an order of the judge, court, or referee, duly served, he may be punished as for contempt; and such referee may, at his discretion, report the case to the court, or judge, and such court or judge may punish for contempt as provided in chapter 4, division 7, title 1, of the Revised Statutes of Ohio. [59 v. 48, 473; S. & S. 566; 86 v. 48.]

There is no power under this section, or any other, to imprison for refusal to obey the order where the person having possession of the money claims to own it, 42 O. S. 111, 112; see 4 Bull 733.

25482. Debtor may pay execution against creditor. After the issue of execution against property, a person indebted to the judgment debtor may pay to the sheriff the amount of his debt, or so much thereof as may be necessary to satisfy the execution; and the sheriff's receipt shall be a sufficient discharge for the amount so

paid, or directed to be credited by the judgment creditor on the execution. [51 v. 57, 463; S. & Č. 1089.]

And the same rule applies to an execution held by a constable and issued by a justice of the peace, 15 O. S. 176.

25483. Judge may order property to be applied on execution. The judge may order any property of the judgment debtor, or money due to him, not exempt by law, in the hands either of himself or other person, or of a corporation, to be applied toward the satisfaction of the judgment; but the earnings of the debtor for his personal services, at any time within three months next preceding the order, can not be so applied, when it is made to appear, by the affidavit of the debtor, or otherwise, that such earnings are necessary for the use of a family supported wholly or partly by his labor. [51 v. 57, 2467; S. & C. 1090.]

The mode of applying property under this section is not prescribed, but it must be in analogy as to claims of the debtor against third persons, to the remedies to which the debtor himself might resort. The court, or judge, is not, under this section, authorized to settle disputes between the debtor and a third person, or to enforce the collection of claims by order of payment and attachment. Where claims are to be collected, the appointment of a receiver is the proper course, 11 O. S. 323. judge can not, under this section, enforce the payment of a debt, in the absence of all fraud, by imprisonment, as for a contempt, but may direct the application of the proceeds of the debt, when collected by a receiver or otherwise, 6 O. S. 255. Earnings of debtor, etc., exempt; see 25 O. S. 516. See 2 5430, subdivision 6n.

A

25484. Judge may appoint receiver, and prohibit transfer, etc., of property. The judge may, by order, appoint the sheriff of the proper county, or other suitable person, a receiver of the property of the judgment debtor; and he may also, by order, forbid a transfer, or other disposition of, or any interference with, the property of the judgment debtor not exempt by law. [51 v. 57, 2 468; S. & C. 1090.]

25485. Liability of sheriff on official bond. If the sheriff be appointed receiver, he and his sureties shall be liable on his official bond as such receiver; and if another person be appointed, he shall take an oath and give an undertaking as in other cases. [51 v. 57, 8 470; S. & C. 1091.]

? 5486. Proceedings when another has an ascertainable interest in the property. Sale of debtor's interest. If it

appear that the judgment debtor has an interest in real estate, in the county in which proceedings are had, as mortgagor, mortgagee, or otherwise, and his interest can be ascertained as between himself and the person holding the legal estate, or the person having a lien on or interest in the same, without controversy as to the interest of such person holding such legal estate, or interest therein, or lien on the same, the receiver may be ordered to sell and convey such real estate, or the interest of the debtor therein; such sale shall be conducted, in all respects, in the same manner as is provided for the sale of real estate upon execution; and the proceedings of all sales shall, before the execution of the deed, be approved by the court in which the judgment was rendered, or the transcript filed. [51 v. 57, ? 469; S. & C. 1090.]

25487. Orders, etc., to be signed by judge, filed with clerk, and minute made on execution docket. The order mentioned in ?? 5472, 5473, and 5475, shall be in writing, and signed by the judge who makes the same, and shall be served as a summons; and the judge shall reduce all his orders to writing, which, together with a minute of his proceedings, signed by himself, shall be filed with the clerk of the court of the county in which the judgment is rendered, or the transcript of the justice is filed, and the clerk shall enter on his execution docket the time of filing the same. [51 v. 57, 2 474; S. & C. 1091.]

No record is required, but the judge must file his "orders" and a "minute of his proceedings" with the clerk, who alone can certify transcripts thereof, 1 W. L. M. 87.

25488. Compensation of probate judge. The probate judge shall be allowed for his services under this subdivision the sum of three dollars in each case, and such fees as are allowed by law to clerks of the court of common pleas for similar services. [51 v. 57, 476; S. & C. 1091.]

25489. Costs. The judge shall allow to clerks, sheriffs, referees, receivers, and witnesses, such compensation as is allowed for like services in other cases, to be taxed as costs in the case, and shall enforce by order the collection thereof, from such party or parties as ought to pay the same. [51 v. 57, 475; S. & C. 1091.

The judge is authorized to order the costs to be paid by such party as ought to pay the same, 1 W. L. M. 87.

SUBDIVISION IV. BY ATTACHMENT.

25490. When enforced by attachment. When the judgment is not for the recovery of money or real property it may be enforced by attachment, by the court which rendered the same, upon motion made, or by a rule of the court upon the defendant; but in either case notice of the motion, or a service of a copy of the rule, shall be made on the defendant a reasonable time before the order of attachment is made. [51 v. 57, 2 488; S. & C. 1093.]

25318n.

DIVISION VI. PROVISIONAL REMEDIES.

CHAPTER I.

ARREST AND BAIL.

25491. Arrest in civil actions only as prescribed by this title. A defendant in a civil action can be arrested before judgment in the manner prescribed by this title, and not otherwise; but this provision shall not apply to proceedings for contempt, nor to actions prosecuted or judgments obtained in the name of the state of Ohio to recover fines or penalties. [51 v. 57, % 145; S. & C. 991.]

25492. By whom and when order of arrest may be made. An order for the arrest of the defendant shall be made by the clerk of the court in which the action is brought, when there is filed in his office an affidavit of the plaintiff, his authorized agent or attorney, made before a judge or clerk of any court of the state, or a justice of the peace, stating the nature of the plaintiff's claim, that it is just, and the amount thereof, as nearly as may be, and establishing one or more of the following particulars:

1. That the defendant has removed, or begun to remove, any of his property out of the jurisdiction of the court with intent to defraud his creditors.

2. That he has begun to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors.

3. That he has property, or rights of action, which he fraudulently conceals.