Maxwell v. Colling

Court of Common Pleas of Ohio, Hamilton County

Maxwell v. Colling

6 Ohio N.P. (n.s.) 551, 18 Ohio Dec. 388, 1907 Ohio Misc. LEXIS 60

CourtCourt of Common Pleas of Ohio, Hamilton County

DecidedNovember 25, 1907

StatusPublished

This text of 6 Ohio N.P. (n.s.) 551 (Maxwell v. Colling) is published on Counsel Stack Legal Research, covering Court of Common Pleas of Ohio, Hamilton County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Maxwell v. Colling, 6 Ohio N.P. (n.s.) 551, 18 Ohio Dec. 388, 1907 Ohio Misc. LEXIS 60 (Ohio Super. Ct. 1907).

Pincite

Opinion

O’Connell, J.

This cause comes into this court for hearing on a motion filed in this court by the defendant through his counsel to discharge an attachment granted and sustained.by a magistrate, the reasons set forth in the motion being “on the ground that said attachment w,as granted and sustained contrary to the law and the evidence. ’ ’

This motion was filed in the common pleas court on November 11, 1907. The original papers from the magistrate were filed on the same day, and they show that the proceedings before the magistrate were had on November 8.

The plaintiff contends that the defendant, had no standing in this court because the motion to dissolve the attachment was not [552]*552filed before the magistrate, but was filed originally in this court; that Section 6494, Revised Statutes, provides that a motion shall be filed before the magistrate and, on the overruling of that motion, the defendant appeals to this court for review of the magistrate’s ruling.

W. K. Maxwell, for plaintiff. J. N. Kinney, contra.

But the motion as filed in this court bears the following endorsement, signed by the magistrate: “Filed Nov. 8, 1907, verbal motion, overruled. ” This clearly indicates a compliance with the statute by the defendant because the statute does not stipulate that the motion shall be in writing. Its recognition by the magistrate is sufficient. It is the policy of the law to construe, liberally all the proceedings before magistrates, especially where the defendant is not represented by counsel, to the end that substantial justice may be done between the parties.

The suit was on a claim for attorney’s fees, the grounds for attachment being that the defendant fraudulently contracted said debt for attorney’s fees. At the hearing in this court the plaintiff failed to sustain the allegations of his affidavit in attachment, and which were controverted by the defendant, that the debt had been fraudulently contracted, and the motion made by the defendant to discharge the attachment should, therefore be granted, and the cause remanded to the magistrate.

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O’Connell, J.

This cause comes into this court for hearing on a motion filed in this court by the defendant through his counsel to discharge an attachment granted and sustained.by a magistrate, the reasons set forth in the motion being “on the ground that said attachment w,as granted and sustained contrary to the law and the evidence. ’ ’

This motion was filed in the common pleas court on November 11, 1907. The original papers from the magistrate were filed on the same day, and they show that the proceedings before the magistrate were had on November 8.

The plaintiff contends that the defendant, had no standing in this court because the motion to dissolve the attachment was not [552]*552filed before the magistrate, but was filed originally in this court; that Section 6494, Revised Statutes, provides that a motion shall be filed before the magistrate and, on the overruling of that motion, the defendant appeals to this court for review of the magistrate’s ruling.

W. K. Maxwell, for plaintiff. J. N. Kinney, contra.

But the motion as filed in this court bears the following endorsement, signed by the magistrate: “Filed Nov. 8, 1907, verbal motion, overruled. ” This clearly indicates a compliance with the statute by the defendant because the statute does not stipulate that the motion shall be in writing. Its recognition by the magistrate is sufficient. It is the policy of the law to construe, liberally all the proceedings before magistrates, especially where the defendant is not represented by counsel, to the end that substantial justice may be done between the parties.

The suit was on a claim for attorney’s fees, the grounds for attachment being that the defendant fraudulently contracted said debt for attorney’s fees. At the hearing in this court the plaintiff failed to sustain the allegations of his affidavit in attachment, and which were controverted by the defendant, that the debt had been fraudulently contracted, and the motion made by the defendant to discharge the attachment should, therefore be granted, and the cause remanded to the magistrate.

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Bluebook (online)

6 Ohio N.P. (n.s.) 551, 18 Ohio Dec. 388, 1907 Ohio Misc. LEXIS 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/maxwell-v-colling-ohctcomplhamilt-1907.