Constable & Co. v. White

1 Handy 44

• Court: Ohio Superior Court, Cincinnati
• Decided: July 1, 1854
• Status: Published

Opinion

CtHOLSON, J.

I am of opinion that the objection to the attachment is not well taken. The statute (Code 192) requires that the affidavit shall show “the nature of the plaintiff’s claim.”

The preceding section of the Code provides that the claim must be one for the recovery of money, and in the case of a non-resident, must be founded upon contract, judgment, or decree. If the only reason for the requirement that the nature of the claim must be shown, is to be found in these provisions of the statute, the statement in the affidavit is amply sufficient to show that the case is one embraced by them. But, if there be other reasons, not shown on the face of the statute, they cannot require more, than such a setting forth of the nature of the claim, as the present affidavit contains. If more were required, then, nothing short of a full bill of particulars, showing each item of the goods sold and delivered, would suffice. I am not prepared to go to that extent, and shall, therefore, hold the affidavit sufficient.

I am asked to look at the petition, and the exhibit attached, and pass on their sufficiency. This would not, in my opinion, be a proper course of practice on the present motion.

At the commencement of the action, the affidavit is made, and the order of attachment issued. If the affidavit be as required by the, statute, the order of attachment is valid. Even if the petition be defective, it is a subject of amendment, and such amendment might be made without prejudice to the attachment.

Motion overruled.