Gilbert v. Burke

20 Ohio C.C. Dec. 586

Opinion

SWING, J.

This action is here on appeal. It is an action to quiet title. Gilbert was the owner of certain real estate in this county, and at no time was a resident of the city of Chicago, state of Illinois, when the defendant in this action brought an action against him in this county, got a judgment against Gilbert and sold the land belonging to Gilbert. Burke was the purchaser at the sheriff’s sale, and he now claims to be the owner -of the lhnd in controversy, by virtue of the sheriff’s deed.

In order to get jurisdiction, Burke was compelled to sue out a writ ■of attachment. He filed the following affidavit:

“Stephen J. Burke, plaintiff, being first duly sworn, says that the ■claim sued upon is for money paid by him for the use and benefit of the ‘defendant, and upon contract, and that said claim is just.

“Affiant believes that he ought to recover the sum of $105, together with interest, from the seventeenth day of August, 1895; and that the ■defendant is a nonresident of this state.”

Does this affidavit contain the necessary statements required by the statute? If not the proceedings under it are void. The first proposition •of the syllabus in Endel v. Leibrock, 33 Ohio St. 254, is as follows:

“A writ of attachment under the code, without the requisite affidavit, is void.”

In Dunlevy v. Schartz, 17 Ohio St. 640, the Supreme Court say:

“An affidavit stating the plaintiff’s belief that the defendant has Absconded with intent to defraud his creditors, without setting forth any facts justifying such belief, does not lay a sufficient ground for issuing a writ of attachment.”

This decision was followed by the Supreme Court in Garner v. White, 23 Ohio St. 192.

Proceedings in attachment are purely statutory, and the provisions of the statutes must be strictly complied with, in order to give jurisdiction. '

In this ease, in order to give jurisdiction, it was necessary that the affidavit should contain, under Rev. Stat. 5522 (Lan. 9051), statements showing:

1. Nature of plaintiff’s claim.

2. That it is just.

3. The amount which affiant believes that plaintiff ought to recover, and

4. That the defendant is a nonresident of this state.

There is no question but what the first three provisions have been -complied with. But, is there an allegation that the defendant is a nonresident of the state? And is: “And that the defendant is a nonresident of this state,” a statement that he is a nonresident of this state by the affiant? What does the affiant say? Grammatically, the verb next preceding this clause must govern, which is “affiant believes.” It cannot be connected with the verb “says” in the first part of the affidavit. The sentence in which the verb is used is complete in itself, and there is nothing to show in the composition of the sentence, or the punctuation, that it was intended to cause any subsequent allegation of a fact. If it has any verb, therefore, it must be “believes.” Therefore, if it has no verb, it is no statement of a fact, and if it is the verb “believes,” if is not a sufficient statement of a fact as required by statute. If we are correct in this view, it follows that the proceedings in attachment were void, and Burke got nothing by it.

Decree accordingly.

Giffen and Smith, JJ„ concur.