
    Squair and McDonald v. Murtey Shea.
    In an action brought under section 218 of the code of civil procedure, against a garnishee who is a non-resident of the state, an order of attachment can not be issued in the case, on the ground of non-residence, notwithstanding the garnishee may appear and answer to the merits of the action.
    Error to the Superior Court of Cincinnati.
    On the 14th of January, 1875, Shea, the defendant in error, brought an action in the Superior Court of Cincinnati against Michael McKenzie to recover $499.50 due on contract for goods and merchandise before that time sold and delivered by Shea to McKenzie; upon which attachments were issued on the ground that McKenzie was a non-resident of the State, and Squair & McDonald, the-plaintiffs in error, were served with garnishee process in the action. They duly appeared and answered, admitting-that they were indebted to McKenzie in an amount which was stated, and paid into court. Their answer being unsatisfactory to Shea, he brought an action against them under the provisions of section 218 of the code of civil procedure, in which the summons was served personally. The defendants answered, putting the allegations of the petition jn issue. After this, but before the cause came on for trial, Shea, having in the meantime obtained a judgment in the first-named action against McKenzie, filed in the Superior Court an affidavit in the cause, which reads as follows:
    “ Murtey Shea, being first duly sworn, says, that- he is the-plaintiff’ above named; that he has commenced an action in the Superior Court, as above entitled, to recover money under section 218 of the code; that his claim arises upon a judgment of the court; that it is just; that he believes he-(the plaintiff) ought to recover the sum of four hundred and ninety-nine dollars and fifty cents; that said Hugh Squair and Thomas McDonald are both non-residents of the State of Ohio; and this affiant further says that he has good reason to believe, and does believe, that Miles Greenwood, Edward A. Eerguson, Richard M. Bishop, Philip Heidelbaeh and "W. "W". Scarborough, trustees of the Cincinnati Southern Railway, resident within the county of Hamilton, have property of the said Hugh Squair and ■Thomas McDonald, partners as Squair & McDonald, in their possession, to wit, money, and are indebted to them in an amount unknown to this affiant; and further deponent saith not.”
    Upon this affidavit process in attachment was issued against Squair & McDonald, and garnishee process issued and served upon the trustees of the Cincinnati Southern Railway.
    Thereupon, before the trial of the issues in the cause, Squair & McDonald moved the court to discharge the attachments in the case for the reasons:
    1. That there is no law for the issuance of the same in such an action.
    2. Insufficiency of the affidavit.
    3. Because the statements of the affidavit are untrue.
    The Superior Court in special term overruled the motion
    and refused to discharge the attachment, and exceptions were taken.
    On error to the general term of the Superior Court the rulings and judgment of the special term were affirmed, and exceptions saved.
    This is a proceeding in error by Squair & McDonald to obtain a reversal of these rulings and judgments of the courts below. The errors assigned are :
    1. The overruling of the motion to discharge the attachments at the special term.
    2. The affirmance of this ruling by the Superior Court in general term.
    
      W. T. Porter, for plaintiff in error :
    1. An attachment on the ground of non-residence can not issue in an action provided for by the 218th section of the code; the action therein given to the plaintiff1 in attachment against the garnishee, for an unsatisfactory answer, being an action sounding in tort, and not in contract. Pope v. Hibernia Ins. Co., 24 Ohio St. 481.
    2. In an affidavit filed for an attachment, which recites that the action is brought under that section, and contains the further averment that the plaintiff’s claim arises upon a judgment of the court, the latter averment can not be held to refer to the judgment against the garnishee, but to the judgment in attachment, and that judgment not being one to which the garnishee is privy, is not such a judgment as is contemplated by the latter clause of the 9th subdivision of the 191st section of the code, and therefore such an affidavit will not sustain an attachment.
    3. It is only in actions upon debts, or demands, where there exists a privity of contract, j udgment, or decree between the plaintiff and defendant thereto, that attachments can issue on the ground of non-residence.
    4. Such privity of contract, judgment, or decree can not ai’ise by a subrogation which takes place by operation of law.
    5. If such could arise, then the above averments are not sufficient; the nature of the plaintiff’s claim only being stated in language which might imply that subrogation had taken place.
    6. Subrogation by implication, by operation of law, is not sufficient foundation for an attachment.
    
      E. G. Hewett and L. II. Swormstedt, for defendant in error:
    The affidavit makes out a clear case for an attachment. Coston v. Paige, 9 Ohio St. 397; Emmitt v. Yeigh, 12 Ohio St. 335; Sleet v. Williams, 21 Ohio St. 82.
    If the affidavit was untrue, the code, secs. 228 and 229, provides the remedy. The I’emedy was not resorted to. And see, in this connection, Garner v. White, 23 Ohio St. 192; Sleet v. Williams, 21 Ohio St. 82.
    On the question as to the right of a party to have an oi’der of attachment, when an action is brought by virtue of the provisions of section 218 of the code, and what ax’e the relations of a garxxishee. Drake on Attachment, secs. 452, 453' (4th ed.); 21 Ohio St. 229; Whiteman v. Keith, 18 Ohio St. 145 ; Caldwell v. Stewart, 30 Iowa, 380; Tu/nstall v. Worthington, Hempsted, 663; 14 Wis. 25; Travis v. Tail, 8 Ala. 576; Moore $ Lyons v. Stainton, 22 Ala. 832 ; Thorn ¡¡¡¡ Bobbins v. Woodruff, 5 Ark. 55 ; LaugKlin's Assignees v. January, 59 Mo. 383; Jones v. The N. Y. $ E. B. B., 1 Grant, 458; 9th division, sec. 191; 12 Ohio St. 160; lb. 359; 24 Ohio St. 481; Hoover v. Gibson, 24 Ohio St. 392.
   Gilmore, J.

The action in which the attachment and garnishee process was issued herein was bi'ought under the 218th section of the code of civil procedure, which, among other things, provides as follows: “ If the garnishee fail to appear and answer, or if he appear and answer, and his disclosure is not satisfactory to the plaintiff, . . . the plaintiff' may proceed against him in an action, by filing a petition in his own name, as in other eases, and causing a summons to be issued upon it; and thereupon such proceedings may be had as in .other actions, and judgment.may be rendered in favor of the plaintiff for the amount of property and credits of every kind of the defendant in the possession of the garnishee, and for what shall appear to be owing by him to the defendant, and for costs, etc.”

In an action properly brought under this section, the plaintiff, as against the garnishee, occupies the position of the principal defendant, with the same rights which he had, and liable to be met by any defenses which the garnishee might make in an action brought against him by the principal defendant. The action is an independent proceeding, in which the plaintiff in the first action in attachment, ■occupying the place of the principal defendant therein, is plaintiff, and the garnishee in that action is defendant; and the latter is subordinate to the former action only to the extent that final judgment shall not be rendered against the garnishee in the latter, until the action against the principal defendant in the former has been determined. Code, sec. 219. Summons is to be issued and served, and the plaintiff’, as against the garnishee, may have such process, including attachment, as in other cases, subject to the special restrictions prescribed by the code, some of which will be noticed hereafter. The plaintiff is, in effect, substituted to all the rights and entitled to all the remedies the principal defendant would have had in an original action against the garnishee.

In argument, it is claimed by counsel for plaintiff’ in error that, by construction, the provisions of the 9th subdivision of section 191 of the code operates as a restriction upon the right of the plaintiff below to an attachment in this case. The language of the second clause of this sub•division is this: “ But an attachment shall not be granted •on the ground that the defendant is a foreign corporation •or a non-resident of this state, for any claim other than a debt or demand arising upon contract, judgment, or decree.” And it is contended that the claim of the plaintiff below is not a debt or demand arising in contract with the garnishees, nor is the judgment against the principal defendant a judgment against them, within the meaning of the clause above quoted; and hence, that the attachment was illegally granted, and ought to have been discharged on the motion.

A decision of the questions thus suggested is rendered unnecessary, in this case, by a clause of section 200 of the code, as amended March 13,1862 (S. & S.. Stat. 550), which reads as follows: “ And should the suit be brought against such garnishee, under the provisions of section 218 of this act, such suit shall be brought in the county in which the garnishee shall reside.”

This provision is imperative, and shows that the motion to discharge the attachment should have been sustained In the court below, unless it does not apply to cases in which the garnishees are non-residents of the state, or that, by appearing and answering in the case, they had submitted themselves to the jurisdiction of the court and waived their right to object to the proceeding in attachment when instituted against them.

We are not aware of any provisions of the code that, in terms, except nonresidents from the operation of the clause above quoted; and, inasmuch as proceedings in attachment are strictly statutory, it follows that the provisions of section 218 of the code do not apply in actions in which the garnishees are not residents of the state.

Still, suppose that non-resident garnishees might waive all objections, and submit themselves personally to the jurisdiction of a court having general jurisdiction of the subject-matter, as the court in this case had; the question is: Had they so submitted themselves, and waived their right to object to the attachment at the time the motion was made ■to discharge it ?

The petition in the case contained an averment that the-garnishees were indebted to the principal defendant in an amount stated, for which a judgment was asked. Personal service of summons in the case was made upon the defendants, who must have been transiently in the state. If they had failed to appear, judgment by default would have been entered against them. By appearing and answering without objection, putting the averments of the petition ¿n issue, they waived any right they may have had to object to the jurisdiction of the court in that action, and will be bound by the judgment on the issues in the case.

After the issues were thus made, but before trial, the proceeding in attachment was commenced, on the ground that the garnishees were non-residents of the state. They promptly moved the court to discharge the attachment on the ground, among others, “ that .there is no law for the issuance of the same in such an action.” We do not think the garnishees by appearing and answering in the action waived any thing in reference to the attachment proceeding subsequently commenced.

Section 686 of the code provides that, “Any party to a suit affected by an order discharging or refusing to discharge an order of attachment, shall be entitled to file a petition in error to reverse, vacate or modify the same as in other cases.”

Section 689 provides that, “ The original action shall proceed to trial and judgment in every other respect as though no writ of error had been prosecuted.” These sections show that for the purpose of testing the validity of the order of attachment, it is to be considered as a distinct proceeding, in no way affecting the original action or the issues in it, as either party is at liberty, by proceedings in error, to question the correctness of the rulings of the court against him, on a motion to discharge an attachment, without interfering with the progress of the original action.

While the provisions of section 218 of the code furnish a simple, speedy and efficacious mode of reaching, ascertaining and appropriating the property and effects of the debtor in the hands of third persons, even in cases in which there might be controversy, to the payment of the claims of his creditors, it was found necessary, in order to prevent abuses in applying the remedy, to place some restrictions upon the right of creditors to compel such third persons to appear and litigate such controversies in counties other than those in which they might reside, and the provision requiring the action under this section to be brought in the county whore such third person resides is not unreasonable; and, in the absence of statutory provisions on the subject, in reference to non-residents of the state, it follows that as to them the provisions of section 218 of the code are wholly inapplicable.

"We are of opinion, therefore, that there was error in overruling the motion to discharge the attachment, for which the judgments of the Superior Court in special and general term are reversed, and the attachment discharged.

Judgment accordingly.

Welch, C. J., White, Rex and McIlvaine, JJ., concurred.  