William S. Scull Co. v. Albany Peanut Co. , 60 Ohio App. 42 ( 1938 )

William S. Scull Company, appellee herein, sued out an attachment against The Albany Peanut Company, Inc., appellant in this court, and attached certain moneys in the hands of The Merchants Cold Storage Company, belonging to the appellant.

The defendant, The Albany Peanut Company, filed a motion to discharge the attachment. The first ground of the motion was abandoned by the defendant company, and the motion was heard on the second ground, which was that the affidavit for attachment was defective in that it failed to negative specifically exceptions in the statutes which would show the defendant corporation not exempt from attachment proceedings. The trial court overruled the motion and this is the claimed error for which appellants ask a reversal and judgment.

The affidavit in question, after stating the necessary allegations required by the statute, contains the following:

"That said, The Albany Peanut Company, Inc., is a foreign corporation not exempt by law from attachment."

Counsel for appellant argue that this statement does not sufficiently negative the statutory exceptions, and that the language "not exempt by law from attachment" is a mere legal conclusion and therefore ineffective to accomplish the purpose. Counsel cite credible authority in support of the proposition, as well as citing many cases holding that the statutes must be strictly complied with in attachment proceedings.

While the affidavit must contain matters required by the statutes to confer jurisdiction of the court over the subject-matter, the manner of stating the substance of the allegations is not jurisdictional, as no special form is required by the statute.

In the case of Weirick v. Mansfield Lumber Co., 96 Ohio St. 386, 117 N.E. 362, the court held that statutes pertaining to attachment and the procedure incident thereto are of a remedial nature and require a liberal construction and a liberal application to the facts. Section 10214, General Code, is to the same effect. The strictness is as to the necessary statutory allegations and not to the form.

The allegations in the affidavit do set up the necessary requirements of the statutes in the language of the statutes, and the statement "not exempt by law from attachment" is not a mere legal conclusion, but may well be called a legal fact, which can be met easily by counter affidavit to the effect that the corporation is exempt, if such be the fact.

Appellants strongly urge that the case of Leavitt Milroy Co. v. Rosenberg Bros. Co., 83 Ohio St. 230, 93 N.E. 904, fully supports their position. But it must be noted that the affidavit in the Leavitt Co. case did not in any manner or form negative the exception. It only stated that the defendant was a foreign corporation and failed to state that it was not exempt by law from attachment. To say "not exempt by law" is no more a legal conclusion than to say that the corporation is not exempt under Section 11819, General Code, or Sections 8625-3, 8625-4 and 8625-5, General Code, and Sections 178 and 183, General Code. "Not exempt by law" alleges as a fact that there is no law under which the defendant can be exempt under the statutes.

Our conclusion is that the affidavit is sufficient and that the trial court did not err in overruling the motion. We are supported in this conclusion by the cases of Hockspringer v.Ballenburg, 16 Ohio, 304; Harrison v. King, 9 Ohio St. 388; andCooper Tire Battery Co. v. Farmers' Bank Trust Co., 29 Ohio App. 336, 163 N.E. 504.

The judgment is affirmed.

Judgment affirmed.

ROSS, P.J., and MATTHEWS, J., concur.