Spaulding & Co. v. Evans

1 Hosea's Rep. 366

• Court: Ohio Superior Court, Cincinnati
• Decided: July 1, 1907
• Status: Published

Opinion

Hosea, J.

Spaulding & Company, an Illinois corporation, brings this action against Effie M. Evans, upon an account for merchandise of $179.50 sold and delivered at Paris, France, between October 30, 1893, and January 12, 1896, inclusive, and claims interest from December 1, 1893.

The petition is filed November 27, 1903, and avers acknowledgment of the debt, and new promises within six years. An affidavit in attachment was filed therewith on the ground of non-residence, and on the same day an order of attachment issued to the sheriff of Hamilton county in the usual form. The order was returned same day by the sheriff, with the following endorsement:

“1903, November 27. No goods or chattels found to attach, and by virtue of this writ, I have this day attached in the presence of E. Wm. Oesper and John Hanson, two freeholders and residents of Hamilton county, Ohio, the interest of Effie M. Evans in the real estate contained and described in the schedule hereto attached, and same appraised by said freeholders under oath in the sum of $7,500, and left a copy of this writ upon each of said premises.

“(Signed), Salmon Jones,

“Sheriff of Hamilton County,

“By J. E. Cormany, Deputy.”

The inventory attached to the return shows an appraisement of “the following described real estate,” to-wit, two distinct and widely separated lots of ground, at an aggregate valuation of $7,500, but without specific valuation of either.

W. C. Peirce and W. S. Kyle, for plaintiff. E. P. Bradstreet, for defendant.

The jurisdiction of the court, in actions of this nature, depends upon a full compliance with the steps prescribed by the statute. The defendant being a non-resident, the prime jurisdictional requisite is a valid levy upon property of the defendant within the territorial jurisdiction of the court. Buckeye Pipe Line Co. v. Fee, 62 Ohio St., 543, 556.

The sheriff returns this writ as levied'upon the interest of the defendant in certain lands, and that he has caused the same to be appraised; but the inventory shows that he has levied upon and appraised the entire land, and not an interest in it. This is fatal to the writ.

Moreover, the interest in each lot must be returned and appraised separately. Property attached must be appraised and returned as the property of the defendant. If it is not so returned, and if it be not the property of the defendant, it is fatal. Pelton v. Platner, 13 Ohio, 209, 219.

The appraisement and return must show what the interest is. The statute authorizes attachment of lands and does not in terms authorize attachment of mere interests therein. An equitable interest of a purchaser in possession with part of the purchase money paid had been recognized as attachable. Wright v. Bank, 59 Ohio St., 80.

But Coggshall v. Bank Co., 63 Ohio St., 88, 98, leaves the matter clouded, and the circuit court in Warner v. York, 25 O. C. C., 310, declares equitable interests in land not subject to attachment.

The attachment levy is set aside., and counsel is required to file with the court an affidavit (Mayer v. Brooks, 74 Ga., 526; Waxelbaum v. Paschal, 64 Ga., 275) showing the exact nature of the interest of the defendant, as a guide to the sheriff, and as the predicate of further proceedings, and the hearing is continued for this purpose.