
    Augustus A. Seibert v. Jonathan Switzer et al.
    1. An attachment, under the civil code, is an auxiliary proceeding in an. action, which may be sued out by the plaintiff, at or after the commencement of such action, by filing a petition and causing a summons to issue thereon.
    "2. About 11 o’clock, a. m., an order of attachment was issued upon the filing of an affidavit and giving bond. It was served and returned about 3 o’clock, p. m., but no petition was filed until about 6 o’clock, p. m., of the same day. Held, that, the attachment was issued without authority of law, and as against other attaching creditors and lienholders gave no priority.
    :3. In an action by one of several attaching creditors against the others, after judgment, to determine the priority of the several liens acquired by seizure under the respective orders of attachment, the lien of any attaching creditor may be defeated by showing that his attachment was issued without the authority of law.
    Error to the District Court of Preble county.
    The following agreed statement of facts, filed in this •court, presents tbe question in controversy :
    “ On the 15th day of October, 1874, the plaintiff in error procured an attachment to issue against the property of Christian Brown, an absconding debtor, and the same was levied by the sheriff on a stock of boots and shoes.
    “ On the 16th day of October, 1874, Jonathan Switzer ac•quired a lien upon the same property by taking possession under a chattel mortgage.
    “ On October 20,1874, G. Ii. Eidson and Jonathan Switzer jointly acquired a lien by attachment upon-said property, ;and on the same day Curme, Dunn & Oo. also acquired a lien thereon by execution.
    “ These several cases were heard and judgments rendered in favor of the parties respectively (Brown being in default for answer) for the amount of their respective claims, but .all questions as to priority of liens were left undisposed of. In the meantime a receiver had been appointed, and by consent of parties he sold the goods and chattels, and held the fund subject to the order of the court.
    “ On January 15, 1875, Jonathan Switzer and Gr. H.. Eidson jointly filed an original petition in the Court of Common Pleas of Preble county, in the nature of a credit- or’s bill, setting out the facts in relation to their lien; making all parties claiming liens on the fund defendants, and asking the court to determine the question of priority among the lienholders. To this petition all the lienholdersfiled answers and cross-petitions, and among the others the plaintiff, A. A. Seibert, filed his answer and cross-petition,, to which Switzer and Eidson jointly filed a reply, in which they denied the validity of said Seibert’s attachment, and stated the following facts in substance :
    “ That, on the 15th day of October, 1874, about eleven o’clock, a. m., the said Seibert filed in the clerk’s office of the-court of common pleas his affidavit for an attachment against Christian Brown, together with the required bond, and thereupon an attachment was issued by the clerk of said court, and placed in the hands of the sheriff, and was by him levied upon the goods, from the sale of which the fund mentioned was derived, and returned by him at three o’clock, p. m., of said day. That at the time said attachment was issued, levied, and returned, there was no suit commenced by said Seibert against said Brown, nor was any petition filed by Seibert against said Brown until six or seven hours-after said attachment was issued.”
    “ To this reply the plaintiff in error, A. A. Seibert, filed a general demurrer, which was argued, and the demurrer was sustained. And thereupon the court proceeded to settle-the priorities of lien as follows:
    “ First lien, E. B. Eshelman, about which no question is raised; second lien, Augustus A. Seibert; third lien, Jonathan Switzer; fourth lien, Switzer and Eidson; fifth lien, Curme, Dunn & Co.
    “ To the sustaining of the demurrer to their reply Switzer and Eidson excepted, and on March 29,1876, they filed their petition in error in the District Court of Preble county, assigning tbe sustaining of said demurrer to said reply as error, and asked tbe reversal of said judgment. Curme Dunn & Co. filed a cross-petition in error, assigning tbe same error, and praying for the same relief. All persons interested were made parties.
    “At the May term, 1876, of the district court, the ease was argued by counsel, and the district court reversed the court of common pleas, to which the said A. A. Seibert, plaintiff in error, excepted ; and said Seibert now seeks to have the finding of the district court, that the common pleas erred in sustaining said demurrer, reversed.
    “ The amount of .the different liens is not-stated, but it is deemed sufficient to say that Eshelman’s claim (which is no longer controverted) and Seibert’s claim, if allowed, will exhaust the fund in the receiver’s hands, and the claims of Switzer, Switzer and Eidson, and Curme, Dunn & Co. will exhaust the fund if Seibert’s lien is set aside.”
    
      Stiver & Freeman for plaintiff in error :
    Failing to give the statutory bond does not avoid the attachment. It is only an irregularity, which the defendant can waive. 19 Ohio St. 296.
    Subsequent attaching creditors can not rely on irregularities to set aside the attachment of a prior attaching criditor. 12 Ohio St. 158. See, also, 12 Ohio St. 168, the last paragraph of the opinion. To the same effect, see Drake on Attachment, § 276.
    It is only where the claims of prior attaching creditors are fraudulent that subsequent attaching creditors may come in after judgment and contest the validity of such fraudulent claim. Drake, § 274.
    
      Campbell & Glimore for defendants in error:
    An attachment issued six or seven hours before the petition is filed is not a valid attachment. Section 191 of the Code of 1853, in connection with section 55 of same Code ; 16 Ohio, 111; 24 Ohio St. 481.
   Johnson, J.

Do the facts stated in the reply show, as matter of law, that Seibert acquired a priority by seizure of the property on the 15th of October ?

The attachment was issued and served some six or seven hours before a petition was filed. There was an affidavit and bond filed about 11 o’clock, a. m., and writ then issued. It was served by the seizure of a stock of goods, and the writ returned by 3 o’clock, p. m. The petition was filed about 6 o’clock, p. m., of the same day.

“ The plaintiff in a cioil action, for the recovery of money, may, at or after the commencement thereof, have an attachment against the property of the defendant, and upon the grounds herein stated.” Civil Code, § 191; Rev. Stat. •§ 5521.

“ An order of attachment shall be made by the clerk of the court in which the action is brought, in any case mentioned in the preceding section, when there is filed an affidavit of the plaintiff, his agent or attorney, showing,” etc. Civil Code, § 192; Rev. Stat., § 5522.

Section 193 requires a bond by the plaintiff to the defendant, except in case the defendant is a non-resident or a foreign corporation.

By section 196, the return day of the order of attachment, when issued at the commencement of the action, shall be the same as the summons; when issued afterward it shall be returned twenty days after it issued.

“ A civil action must be commenced by filing in the office of the clerk of the proper coui’t a petition, and causing a summons to be issued thereon.” Civil Code, § 55; Rev. 'Stat., § 5035.

The plaintiff must also file with the clerk a precipe, •stating the names of the parties to the action, and demanding a summons.

From these provisions and others found in the chapter on attachment, we are to determine whether Seibert obtained a priority by his attachment, or whether, as against the other liens, it is null and void.

Unlike the attachment laws formerly in force, the code ■rewards the diligent creditor by giving priority to the order first delivered to the officer. This being in derogation of the equitable principle, that the assets of an insolvent debtor should be equally distributed among his creditors, it is but just that the party asserting such priority should clearly show that he has established the right given by the statute.

The record shows this to have been a race between creditors of an absconding debtor who did not have property sufficient to satisfy all the claims upon it. The plaintiffs were lienholders by attachment and by a chattel mortgage. After judgments in the several actions in which attachments had been sued out, the action was commenced to determine priorities among the several lienholders. These plaintiffs can not take advantage of any mere irregularity or informality in Seibert’s attachment, for the purpose of defeating his priority; but they may show that his attachment was issued without authority of law, and thereby defeat it. Ward v. Howard, 12 Ohio St. 158.

No action was, in fact, commenced by the filing of a petition, until some three or four hours after the order of attachment was served and returned.

The statute does not authorize an attachment except in an action, and the clerk of the court has' no authority to issue the order of attachment until an action is brought, and the relation of plaintiff and defendant is established in the case.

An action is commenced or brought, within the meaning of sections 192 and 193, by the filing of a petition and causing a summons to issue thereon. Code, § 55. Until then there is no action in which an attachment can issue. It is a remedy auxiliary to an action for a money judgment. It is a writ in aid of the plaintiff, granted in certain cases before he could have execution. Without an action there is no foundation for this auxiliary proceeding. Nor do we think that the subsequent commencement of an action, though on the same day, cures this defect. The order of .attachment being issued by the clerk of the court before .action brought, was unauthorized arid void, and the subsejquent commencement of an action, although on the same day, could not vitalize it so as to give it priority over other valid liens.

This conclusion is supported by the following cases in point. Pope v. Hibernia Ins. Co., 24 Ohio St. 481; Endel v. Leibrock, 33 Ohio St. 254; Kerr v. Mount, 28 N. Y. 659; Waffer v. Goble, 53 Barb. 517; Kelley v. Strayer, 15 Hun. 97.

Judgment of the district court affirmed.  