Barbour v. Boyce

5 Ohio N.P. 273

• Court: Ohio Superior Court, Cincinnati
• Decided: January 31, 1898
• Status: Published

Opinion

HUNT, J.

This is a motion to strike from the files the separate demurrers of Thomas C. Campbell and John C. Otis, garnishees, on the ground that the demurrers and each one of them was irregular-15'- and improperly filed, and on the further ground that said demurrers and each of them is contrary to law. The demurrers in question are general demurrers.

The caption of the petition named H. H. Boyce, as defendant, and Thomas C. 'Campbell and John O. Otis, as garnishees.

The garnishee is not in Ohio, as in many of the states, a party to the attachment action. He has no day in court (Secor v. Witler, 39 Ohio St., 213). The affidavit and order of attachment are no part of the pleadings in the action, and the grounds for attachment should not be stated in the petition (Harrison v. King, 9 Ohio St., 388.) The proceeding is purely ancillary, and hence it follows that garnishees should not be added as defendants. (1 Bates’ Pleading and Parties, 285, par. 9; Maples on Attachment sec. 473.) Nor should the garnishees be named in the caption of the petition. They are improperly there.

The demurrers therefore are improperly filed, and shouldbe stricken from the files. Motion granted.