
    BILLS AND NOTES — ATTACHMENT—EXECUTORS AND ADMINISTRATORS — COURTS.
    [Franklin (2nd) Circuit Court,
    October 23, 1903.]
    Sullivan, Wilson and Dustin, JJ.
    Oscar Orlopp v. Fred W. Schueller, Admr.
    1. Instrument Held to be Joint and Several Pbomissobt Note.
    A written instrument in the form following is a joint and several promissory note: “ I hereby certify to have received of Mr. Dan Deiss as a loan for three months $600. Columbus, Ohio, August 12, 1872, Oscar Orlopp. Emillie Orlopp;” and an action thereon may be maintained against one of the makers.
    2. Object of Sec. 5522 Rev. Stat., Requiring Nature of Claim to be set out.
    The provision of See. 5522 Rev. Stat., requiring the nature of plaintiff’s claim to be set forth in the affidavit for attachment, is to determine whether the claim is of such a character as will entitle him to an attachment.
    S.Attachment mat be Issued on Promissory Notes, When.
    An attachment may be issued in an action commenced on a promissory note when any of the statutory grounds for attachment exist.
    4. Affidavit in Attachment not Insufficient by Reason of Conflicting Dates in Amended Petition.
    An affidavit in attachment is not insufficient in law, in that it does not set forth the nature of plaintiffs claim, because the attachment was issued upon an affidavit filed with the original petition in which the date of the promissory note, which was the basis of the action, was set forth differently from that given in an amended petition filed in the case after the attachment was issued, thereby making the interest commence to run from a different date, when it appears the instrument is set forth in both the petition and amended petition in substantially the same form. The nature or character of plaintiffs claim is not determined by its date.
    5. Undetermined Legacy in Hands of Administrator may be Garnisheed Under Sec. 5531 Rev. Stat.
    An undetermined legacy in the hands of an administrator may be garnisheed, where it appears that upon the filing of the final account of the administrator the contingency of lack of funds to pay the legacy or part thereof is not likely, to arise. Administrators are public officers, and are included under the designation • other officers in Sec. 5531 Rev. Stat., which prescribes the effect of service of garnishee process upon public officers.
    6. Jurisdiction of Probate Court not Interfered With by Gabnisheeing Legacy in Hands of Administrator.
    An undetermined legacy garnisheed in the hands of an administrator under favor of Sec. 5531 Rev. Stat., is not thereby withdrawn from the custody of the administrator or the jurisdiction of the probate court, nor can such process interfere, In any^ way, with the settlement of the estate; the creditor, in such case, is only entitled to have applied toward the payment of his claim such part of the legacy as may ultimately, upon final settlement, be found due to the debtor.
    7. Common Pleas 'Court Cannot Order Administrator to bay Money into Court in Garnishee Proceedings, When.
    The court of common pleas, in issuing an order of attachment against property in the custody of an administrator appointed by the probate court, is without authority to order such officer to deliver or pay the same into court, until after a final adjudication by the probate court as to the rights of the debtor therein.
    S. Failure to Make Order Required by Sec. 5550 Rev. Stat. Does Not Affect Jurisdiction, ■When.
    The jurisdiction of the common pleas court in an attachment proceeding is not lost by its failure to make the order, provided for in Sec. 5550 Rev. Stat., requiring an administrator-garnishee, who has duly qualified and given bond, to deliver the amount of ’ an undetermined legacy in his possession into court, or require him to execute the prescribed bond in event he retains the amount in his possession.
    ERROR to the court of common pleas of Franklin county.
    A. H. Johnson and Henry Elliston, for plaintiff in error:
    As the plaintiff in error was a nonresident of the state and was not personally served with summons, and did not enter his appearance, jurisdiction could be acquired only by service by publication. Sections 5045, 5046 Rev. Stat.; Williams v. Welton, 28 Ohio St. 451.
    The affidavits should have stated the facts so the court could determine whether “the cause was one of those mentioned in the preceding section,” (See. 5045) and whether the notice was published six consecutive weeks, and when the service was completed. Alder son, Jud. Writs & Proc. 318, 319; Claypool v. Houston, 12 Kan. 324; Ogden v. Walters, 12 Kan. 283, 293; Harris v. Caflin, 36 Kan. 543 [13 Pac. Rep. 830]; Pindar v. Black, 4 How. Pr. 95; Fulton v. Levy, 21 Neb. 478 [32 N. W. Rep. 307] ; Britton v. Larson, 23 Neb. 806 [37 N! W. Rep. 681].
    Jurisdiction of the property of the plaintiff in error was lost when the garnishee answered. Oil Well Supply Co. v. Koen, 64 Ohio St. 422 [60 N. E. Rep. 603] ; Sec. 5550 Rev. Stat.; Davis v. Lewis, 8 Circ. Dec. 772 (16 R. 138) ; Crystal Spring Distillery Co. v. Vesper, 12 Dec. 524.
    Seizure and possession are essential to the court’s jurisdiction. Buckeye Pipe Line Co. v. Fee, 62 Ohio St.'543, 556, 560 [57 N. E. Rep. 446; 78 Am. St. Rep. 743] ; 4 Cyc. 654; Root v. Railway Co. 45 Ohio St. 222 [12 N. E. Rep. 812].
    The paper writing set forth in the amended petition is not a promissory note. It lacks the essential of a promissory note, in that it contains no certain promise to pay, and is only an acknowledgment of indebtedness. Daniel, Neg. Instr. Sees. 28, 36, 37, 38; 4 Am. & Eng. Enc. Law (2 ed.) 77, 82.
    The affidavit contains neither of the requirements of Sec. 5522 Rev. Stat. and is insufficient in law. Driscoll v. Kelly, 4 Dee. 124 (5 N. P. 243); Belmont Mining Co. v. Rogers, 6 Circ. Dec. 619" (10 R. 305); Cook v. Gasoline Engine Works, 10 Circ. Deo. 236 (19 R. 732) .
    
      Tbe property sought to be attached’was not subject to attachment •or garnishment, being a contingent residuary legacy in the hands of the garnishee as administrator, and no order of distribution having been made. Buckeye Pipe Line Co. v. Fee, 62 Ohio St. 543, 556 [57 N. E. Rep. 446; 78 Am. St. Rep. 743]; Humphrey v. Wood, Wright 566; ‘Colwell v. Bank, 2 Ohio 229; Taylor v. McDonald, 4 Ohio 149, Í55; Shinn, Attach. & Garn. Secs. 510, 516, 532; 4 Cyc. 396,409, 632; 14 Am. & Eng. Ene. Law (2 ed.) 765, 817, 828, 833* Woerner, Administration (2 ed.) *p. 390,Sec. 177; Nelson v. Stull,65 Kan. 585 [68 Pac. Rep. 617] ; Case Threshing Machine Co. v. Miracle, 54 Wis. 295 [11 N. W. Rep. 580] ; Conway v. Armington, 11 R. I. 116; Shewell v. Keen, 2 Whart. (Pa.) 332, 339; Weekes v. Gas Co. 22 Tex. Civ. App. 245 [54 S. W. Rep. 620] ; Byers v. McAuley, 149 U. S. 608 [13 Sup. Ct. Rep. 906; 37 L. Ed. 867]; Bentley v. Strathers, 5 Bull. 288; Picquet v. Swan, 4 Mason 443 [19 Fed. Cas. 600] ; Drake, Attachment- Sec. 452; Waple. Attachment Sec. 357; Overturf v. Gerlach, 62 Ohio St. 127, 129 [56 N. E. Rep. 653; 78 Am. St. Rep. 704]; Smyth v. Anderson, 31 Ohio St. 144, 146; Straus v. Wessel, 30 Ohio St. 211, 213, 214; Rockell, Prob. Prac. See. 676, 682, 694; Webster v. Bible Society, 50 Ohio St. 1, 15 [33 N. E. Rep. 297] ; Gray v. Case School of Applied Science, 62 Ohio !St. 1 [56 N. E. Rep. 484] ; Sees. 6075, 6195, 6128, 6211 Rev. Stat.; Dawson v. Dawson, 25 Ohio St. 443.
    The common pleas court will not take away from the probate court money or property over which the probaté court had acquired jurisdiction.
    To allow the property to be taken by the common pleas court in •attachment would take away the jurisdiction of the probate court to settle the estate. This the court will not permit. Byers v. McAuley, 149 U. S. 608 [13 Sup. Ct. Rep. 906]; Overturn v. Gerlach, 62 Ohio St. 127 [56 N. E. Rep. 653; 78 Am. St. Rep. 704]; Shewell v. Keen,' 2 Whart. (Pa.) 332, 339; Weekes v. Gas Co. 22 Tex. Civ. App. 245 [54 S. W. Rep. 620] ; Case Threshing Mach. Co. v. Miracle, 54 Wis. 295 [11 N. W. Rep. 580] ; 14 Am. & Eng. Enc. Law (2 ed.) 817, 828, 830.
    We contend that it was not the object of the legislature to include executors and administrators in the words “other officer,” in Sec. 5531 Rev. Stat. Executors and administrators must be expressly named in the statute before they can be garnisheed, and the statute cannot be made to apply to them in proceedings of attachment and garnishment by implication. 4 Cyc. 396, 409; Shinn, Attach. & Garn. Sec. 510; 14 Am. & Eng. Enc. Law (2 ed.) 817, 828; Woerner, Administration (2 ed.) *p. 390, See. 177; Conway v. Armington, 11 R. I. 116.
    
      The statutory remedy of attachment being in derogation of the common law must be construed .strictly in favor of those against whom the proceeding is employed and must be closely confined within the limits assigned by the legislature and cannot be extended by implication beyond the terms of the statute creating it. Felix v. Griffiths, 5fr Ohio St. 39 [45 N. E. Rep. 1092] ; Hoyman v. Beverstock, 4 Giro. Dec. 491 (8 R. 473) ; Taylor v. McDonald, 4 Ohio 149; 26 Am. & Eng. Ene.. Law (2 ed.) 662; 4 Cyc. 400.
    Where the intention is not clear, the question of public policy should have weight. Conway v. Armington, 11 R. I. 116; Overturf v. Gerlach, 62 Ohio St. 127 [56 N. E. Rep. 653; 78 Am. St. Rep. 704] ; Hurd v. Robinson, 11 Ohio St. 232, 237, 238. '
    Prior to the passage of this statute public officers were not subject to the process of attachment. Dawson v. Holcomb, 1 Ohio 275 [13 Am.. Dee. 618],
    The term “other officer,” as used in Sec. 5531 Rev. Stat., should be construed under the rule “ejusdem generis.” The meaning of the words “other officer” must be limited to and determined by the specific’ words of a like nature which they follow, and are presumed to embrace only such officers as are like or similar to those designated by the specific words. Sutherland, Stat. Constr. Secs. 268, 273; 26 Am. & Eng. Ene. Law (2 ed.) 609; 17 Am. & Eng. Enc. Law (2 ed.) 6; State v. Liffring,, 61 Ohio St. 39, 50 [55 N. E. Rep. 168; 46 L. R. A. 334; 76 Am. St. Rep. 358] ; Rutherfoord v. Railway Co. 35 Ohio St. 559, 563; Lane v. State, 39 Ohio St. 312, 313; Mechem, Pub. Oil & Off. Sec. 1; State v. Brennan, 49 Ohio St. 33, 37, 38 [29 N. E. Rep. 593].
    There is no office of executor or administrator created by statute. An executor or administrator is not entrusted with any portion of the sovereign functions of the government; nor is any public function to be exercised by him for the benefit of the public. His duties are that of a trust, under the instructions and control of the probate court.
    The circuit court held, on the authority of Byers v. McAuley, 149‘ U. S. 608 [13 Sup. Ct. Rep. 906; 37 L. Ed. 867], and Sampsellv. Samp-sell, 9 Circ. Dec. 510 (17 R. 455), that executors and administrators were officers of the court, and therefore included in See. 5531 Rev. Stat. .If they are officers of the court, which we contend they are not, it does, not follow that the legislature intended to include them in the words “other officer.” If that contention was to prevail, receivers and'all officers of the court could be garnisheed and the property in the custody of one court taken away by the process of attachment from another court. See also Seymour, In re, 4 Dec. 450 (3 N. P. 81); Shewell v> Keen, 2 Whart. (Pa.) 332; Stratton v. Ham, 8 Ind. 84 [65 Am. Dec. 754].
    
      Gamble & Gumble, for defendant in error:
    Summons upon an amended petition is not necessary, and the affi^ davit supporting an order of attachment is no part of the pleading:. See the notes of case in Sec. 5522 (4 ed.) Eev. Stat.
    Funds in the hands of an administrator are subject to attachment: before the order of distribution is entered.
    Defendant in error does not seek to obtain any greater rights in-the funds m the hands of said administrator than has the said Oscar-Orlopp, but only seek to hold intact, pending the determination of the-merits alleged in the petition,' the interest that said Oscar Orlopp has in. said fund. And if Oscar Orlopp has an interest in said fund, such: interest may be attached. Seeor v. Witter, 39 Ohio St. 218.
    The ease at bar does not in anywise embarrass or delay the closing up of the estate of Odo Orlopp deceased. The administrator can file his final account and close up, so far as the probate court is concerned, whenever he pleases, and if the estate is indebted to Oscar Orlopp we are entitled to have it paid to us, if we can establish the fact upon the trial of the case in the common pleas court, that the facts set out in the petition are true. /
    The court of common pleas has jurisdiction to test the right of who is entitled to the funds in the hands of an administrator. First Nat. Bank v. Beebe, 62 Ohio St. 41 [56 N. E. Eep. 485].
    There are many rights that must be worked out in the court of common pleas, notwithstanding the fact that the probate court has some jurisdiction of the subject matter, -and we insist that the only court which could possibly give us relief or a remedy for the protection of our rights is the court of common pleas. Overturf v. Gerlaeh, 62 Ohio St. 127 [56 N. E. Eep. 653; 78 Am. St. Eep. 704], relied upon by plaintiff in error, is wholly dissimilar to the case at bar.
    In some states by express statutes, funds in the hands of an administrator or other officer before an order of distribution, could nor be attached; but that construction of the law has since been abrogated by the legislature in Ohio. Sections 5530, 5531, 5538 Eev. Stat.
    The law cited by counsel for plaintiff in error applies to cases that are either considered under the common law or to eases governed by statutes wholly dissimilar to the statutes of Ohio. In states other than our own, the question herein involved has been decided both ways, but in the state of Ohio the identical question has been settled by the circuit court in the ease of Sampsell v. Sampsell, 9 Cire. Dee. 510 (17 E. 455).
    Section 2752 Wisconsin Eev. Stat., under which the Supreme Court of that state decided the case of Case Threshing Machine Co. v. Miracle, 54 Wis. 295 [11 N. W. Rep. 580], upon which, case counsel for plaintiff in error so confidently and completely, rely, is widely different from our own garnishment statute.
    Plaintiff in error erroneously assumes that this action. seeks to compel the administrator to at once pay into court the proceeds of this estate. Such is not the case. We only seek the enforcement by force of the attachment statutes to prevent the payment of the money by the administrator to Oscar Orlopp, and to compel said administrator to hold the interest in said estate of Oscar Orlopp pending the determination of the merits. This court has such power.
    If we have a right in this court after an order of distribution, then lunder the decision in Sampsell v. Sampsell, supra, and First Nat. Bank V. Beebe, supra, we have a clear right now.
    If the liability of the garnishee is certain and the only contingency is as to the amount thereof, it is not such a contingency as will prevent -.the claim from being liable to garnishment.
    The answer of the garnishee states that there will certainly be some money coming to the plaintiff in error, and so far as this court is concerned, it must rely upon the record. 14 Am. & Eng. Enc. Law (2 ed.)' 769.
    The court did not lose jurisdiction of the person or property. The cases relied upon by plaintiff in error, Davis v. Lewis, 8 Circ. Dec. 772 (16 R. 138), and Crystal Springs Distillery Co. v. Vesper, 12 Dec. 524, are not applicable to the case at bar.
    The failure to give a bond under Sec. 5550 Rev. 'Stat., in the case at bar has not deprived the court of its jurisdiction, nor could the court under the peculiar facts in this case have made the order relied upon by counsel for plaintiff in error. See also Hadlow v. Beavis, 1 O, S. C. D. 857 (42 Bull. 256) ; Polley v. Hicks, 58 Ohio St. 218 [50 N. E. Rep. 809; 41 L. R. A.. 858] ; Phipps v. Hope, 16 Ohio St. 586; Beach, Contracts Sec. 203; Griffith v. Holman, 23 Wash. 347 [63 Pac. Rep. 239; 54 L. R. A. 178;.83. Am. St.-Rep. 821]. .
   SULLIVAN, J.

On January 8, 1902, defendant in error brought suit against plaintiff in error, in the court of common pleas of Franklin county, to recover from plaintiff upon a certain paper writing, designated in the petition as a promissory note, averring the same to have been executed by plaintiff in error about the year 1875, in the sum of $500 payable to defendant’s testate, and that he was unable to state the date at which said note matured or the rate of interest it bore, but that the same was past due.

It was further averred that plaintiff, in 1878, removed from the state of Ohio to the town of Atcheson, in the state of Kansas, and is now and ever since the year 1878 has lived beyond and without the jurisdiction of the state of Ohio; that through some inadvertence said note had been either lost or mislaid, but that in a reasonable time a copy thereof would be filed with the. court. Then followed the averment, that no payments had been made on said note; that there was due defendant in error on the same $500, with interest from 1875; that by the last'will of Oscar Orlopp, late of Franklin county, deceased, plaintiff in error was named as legatee; that the estate of said deceased testate was solvent; that the property bequeathed to plaintiff in error was within the county of Franklin, state of Ohio. Defendant in error prayed for a personal judgment, for amount of said note and interest thereon from 1875.

On the same day, January 8, 1902, defendant in error filed an affidavit in the clerk’s office in which he set forth that he had commenced an action against plaintiff in error in the common pleas court of Franklin county, Ohio, upon a promissory note executed by plaintiff in error to the deceased Daniel Deiss, for the sum of $500, with interest from 1875; that said claim was just, and said defendant in error ought to recover said amount and interest thereon from the year 1875; that plaintiff in error was a nonresident of Franklin county and state of Ohio; that affiant had good reason to believe and he did believe that Charles W. Haldy, administrator, with the will annexed of the estate of Odo Orlopp, who died within said county of Franklin and state of Ohio, had property of the plaintiff in error in'his possession liable to be attached in said action, consisting of money or other chattel property, and that the facts stated in said affidavit were true. Upon which affidavit the clerk of the common pleas court issued an order of attachment, and notice of garnishee to the said Charles W. Haldy, administrator.

On January 13,-1902, defendant in error filed an amended petition in the common pleas court. The amended petition set out a copy of the obligation averring that the paper writing was either a contract or a promissory note, but the same paper writing referred to in the original petition. The amended petition sets forth a copy of the paper writing which is in words and figures as follows:

“I hereby certify to have received of Mr. Dan Deiss as a loan for three months, $500.
“Emillie Orlopp.
“Oscar Orlopp.
“Columbus, Ohio, August 12, 1872.”

On January 9, 1902, order of attachment and garnishee was served upon Charles W. Haldy, administrator of the estate of Odo Orlopp, deceased, by handing him personally a certified copy of same. Publication of the proceedings was made as provided by law. On March 14, 1902, the plaintiff in error filed a motion asking that said attachment be discharged for the several reasons set forth in,said motion, appearing for the purpose only of making said motion, and without any intention of entering his appearafice for any other purpose, or submitting to the jurisdiction of said court, over his person.

This motion was overruled, to which an exception was taken by plaintiff in error, to which action of the court in overruling said motion plaintiff prosecutes error to this court. A bill of exceptions was taken, bringing upon the record all of the testimony produced upon the hearing of said motion. The garnishee made answer in the case March 18, 1902, and it shows that there will be in his hands about the sum of $1,500, coming to plaintiff on his legacy.

Whilst the motion sets forth several grounds and the same grounds in several different forms, there are but three insisted upon by plaintiff in error, in his brief. Counsel for plaintiff contends first, that the affidavit is insufficient in law to maintain an attachment because of the difference between the date of the instrument sued upon, as set forth in the original and amended petitions, and therefore a different date from which to compute interest; in other words, the attachment being issued upon the affidavit filed with the original petition setting forth a different date from that appearing in the amended petition, and a different date from which interest should be computed, the nature of the claim was not set forth in the affidavit. The statute requiring the nature of the claim to be set forth in the affidavit is for the purpose of determining whether it is of such a character as entitles the party to an attachment. In an action upon a promissory note, a party may have an attachment if any of the statutory grounds upon which it may be issued exists.

The date of the instrument does not determine its character. The instrument set forth in the amended petition is substantially in form the same as referred to in the original petition. It is evidently the same debt, and in form and substance it is a joint and several promissory note, and upon which either a joint or several action may be maintained. The affidavit, therefore, we think good.

Second. Counsel for plaintiff in error contend that a legacy, the amount of which has not been fully determined by a final account of an executor or administrator, cannot be attached. Under this contention he claims that no legacy can be attached and the executor or admin-dstrator garnisheed. In support of this claim he cites a number of .authorities. We are of the opinion that under See. 5531 Rev. Stat., an undetermined legacy in the hands of an administrator or executor may be garnisheed; that administrators and executors are included under the designation of “other” officers in the above section. When referred to in a number of authorities they are designated as officers of court. We refer specially to the ease of Byers v. McAuley, 149 U. S. 608, 615 [13 Sup. Ct. Rep. 906; 37 L. Ed. 867], quoting:

“An administrator appointed by a state court is an officer of that court; his possession of the decedent’s property is a possession taken in obedience to the orders of that court; it is the possession of the court,” * * * .

Were it not for the section above referred to we would not be prepared to say that a legacy could be attached, especially if the amount of the legacy was undetermined. The answer of the garnishee shows that he will have, upon final settlement of the estate, about $1,500 to be applied to the legacy of plaintiff in error. We hold it is subject to attachment, citing in support of this holding, Stratton v. Ham, 8 Ind. 84, 85 [65 Am. Dec. 754], and also Byers v. McAuley, supra, from which we quote “all remedies to which parties may be entitled against officers, not involving the withdrawal of the property or its proceeds from the custody of the officer and the jurisdiction of the court they may pursue.” The process given parties by See. -5531 Rev. Stat., does not withdraw the property from the custody of the officer or the jurisdiction of the court, or in anywise interfere with the proceedings of the probate court in the settlement of an estate, but is a remedy providing what a creditor may have to subject to the payment of a claim against a debtor who, upon a final settlement of an estate, may be entitled to receive money or property as a legacy. Upon the remaining question, that the court lost jurisdiction over the property because upon the answer of the garnishee, it made no order as provided by Sec. 5550 Rev. Stat. We are of the opinion that the above section does not apply, where property is garnisheed in the hands of any one of the officers designated in Sec. 5531 Rev. Stat.

The service of process of garnishment upon an officer binds from date of service only such interest in the funds in his hands as may 'be •determined as belonging to the debtor, by the court, under whose orders the officer holds such funds. The court issuing the order of attachment, has no power to order the funds taken from the custody of the court holding it. The order is limited to the amount that may be found coming to the legatee or distribution upon final settlement of the estate. Such, order binds only such interest in the funds as may ultimately be found belonging to the debtor. The money being already in the custody of an officer who has given bond, the undertaking required by Sec. 5550' Rev. Stat. has no application.

The court issuing the order of attachment is without authority to-require any part of the property or money held by an officer under process of the court, whose officer he is, paid into court issuing the order of attachment until a final adjudication by the court having custody of the funds. No bond could be required of such officer because the-extent of the debtor’s interest cannot be known until a final adjudication by the court having custody of the funds. The court below acquired no-jurisdiction over the person of the plaintiff, but did acquire jurisdiction over the thing and did not lose it. We find no error of record prejudicial to plaintiff in error and the judgment is affirmed at costs of plaintiff in error.

Wilson and Dustin, JJ., concur.  