First National Bank v. McIlvaine

HANEY, J.,
On May 27, 1912, in an- action wherein the present plaintiff was plaintiff and the present defendant C. N. Mcllvaine was defendant, the plaintiff recovered a judgment for $2,599.24 and costs. All proceedings, except the entry of judgment, were stayed for 60 days. Before such stay expired, the present action.was begun for the purpose of subjecting -certain real ■property, the record title to which is in the -defendant Sara T. Mcllvaine, to .the payment of the aforesaid judgment on the ground that such realty is, in fact, the property of defendant C. N. Mcllvaine; record' title thereto having been conveyed to Sara T. Mcllvaine to hinder, delay and defraud the former’s creditors. Upon motion of the defendants, the court entered an order dismissing the ‘present action and discharging the lis pendens filed therein on the ground that the action was1 commenced in violation of the order staying proceedings -in the first action. From this order the plaintiff appealed. The defendants now move to- dismiss .this appeal for the reason that the order, appealed from no longer affects any substantial right; the defendants having subsequently *47appealed from ibhe judgment in the first action .and given a-supersedeas bond to which no exceptions have been 'taken by the plaintiff.

The pending ’ motion to dismiss must be denied. The commencement of the second action and the filing of the lis pendens operated to preserve the lien of (the judgment in the first action upon the real property described in the second-. Whether the plaintiff was entitled to have the lien of its judgment thus .preserved is -a question of substantial right, notwithstanding the security afforded by the supersedeas bond. Until the plaintiff’s judgment shall -have 'been -satisfied or it -shall have been finally decided that -the plaintiff is not -entitled .to recover in ¡the first -action, its right to -maintain its second -action and to preserve its lien upon all the real property in fact owned -by the judgment debtor in the county wherein such judgment is docketed will be a -matter of substantial right to be determined when the pending appeal from the order dismissing the -second action is heard upon its merits.

The motion to dismiss is denied.