Public-domain · open source
OpenJurist

21 Ohio St. (N.S.) 82

Sleet v. Williams

Ohio Supreme Court

Decided December 15, 1871

Ohio Supreme Court · decided 1871-12-15

Eeserved in the district court. The plaintiff seeks to reverse an order of the common pleas discharging an attachment. The motion to discharge the attachment appears by the record to have been placed both upon the ground of the insufficiency, and also of the falsity, of the affidavit upon which the order of attachment had been issued. On heai’ing of the motion affidavits were read to the court touching the truth or falsehood of the affidavit.

Decided 1871-12-15

Welch, J.

¶1We think the court erred in holding this affidavit insufficient. It substantially conforms to the stat*86utory requisitions. These requisitions are, not that the affidavit shall be in any prescribed form of words, but that it shall be an affidavit “showing” the existence of certain facts. None of the statutory requirements are wanting in this affidavit, unless it be the statement of the plaintiff’s belief that he ought to recover the sum of $1,189.00. In place of this, we have the positive statement that that sum is due to him from the defendant, upon the claim. We think the latter statement fairly includes and implies the former. One can hardly have the knowledge that money is justly due to him upon a contract, without the belief that he ought to recover it from the debtor.

¶2But counsel say that there was no error in the order of the court discharging the attachment, because, however perfect in form the affidavit may be, it is shown to be false. The answer to this is, that there is no bill of exceptions in the case, setting forth the affidavits read in evidence, or the finding of the court thereon. We cannot notice these affidavits. They are merely introduced into the record by the clerk. They may constitute all the evidence heard upon the motion, and they may, so far as we can officially know, constitute only a part of it.

¶3Judgment reversed, and cause remanded for further proceedings.

Scott, C. J., and White, Day and McIlvaine, JJ., concurred.
/21/ohiost(ns)/82 · .json · Public domain