
    Weirick et al. v. The Mansfield Lumber Co. et al.
    
      Construction of remedial statutes—In obtaining justice — Section 10214, General Code — Attachment—Form of return—Section 11836, General Code—Court may not amend statute — Addition to return not 'essential, when.
    
    1. Remedial statutes require a liberal construction and a liberal application to the facts of any given case.
    2. Statutes pertaining to attachment and the procedure incident thereto are of a remedial nature.
    
      3. To reenforce this general rule the general assembly of Ohio has specially enacted Section 10214, General Code, providing that “The provisions of -part third and all proceedings under it, shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice.” Thereafter the general assembly made all the statutes pertaining to attachment a part of such “part third.”
    4. The return made upon the writ of attachment is governed by Section 11836, General Code, in which certain things “must” be shown. ■ The legislature having specified those things a court is not authorized to amend the statute by adding thereto. That is, as applied to this particular case, an amendment to the return showing that a copy of the order was left with the owner is not essential to the validity of the return.
    (No. 15383
    Decided June 26, 1917.)
    
      Error to the Court of Appeals of Richland county.
    The court of appeals found the facts of this case, so far as they are pertinent to this proceeding in error, as follows:
    “1. That on and prior to August 16, 1911, the defendant, Charles H. Walters was the owner in fee simple of lot number 1974, situated on Sturges Avenue, and lot number 3063, situated on Park Avenue West, of the consecutive numbers of lots in the City of Mansfield, Ohio. That prior to said 16th day of August, 1911, and on said.date, the defendant the Charles Hoffman Company had asserted a mechanic’s lien against said real estate, also, the plaintiff, The Mansfield Lumber Company, had prior thereto asserted a Mechanic’s lien on said premises, and the defendant, Edward Wentz, had obtained a judgment against the defendant, Charles H. Walters, and had issued execution thereon, and placed a levy on both of said lots.
    “2. That on August 16th, 1911, the defendant, W. M. Hahn, commenced an action against the defendant, Charles H. Walters, in the Court of Common Pleas of Richland County, Ohio, cause 11688, for $1,250.00, in which a proper affidavit of attachment was filed, making all proper allegations for a legal attachment under the laws of Ohio, properly verified; and an attachment was allowed to issue thereon to the Sheriff of Richland County, Ohio, on said date, and on said date, the Sheriff of Rich-land County, Ohio, did levy on said lots as the property of the debtor, Charles PI. Walters, and on the same day, the same Sheriff filed his return of his proceedings under said order in said Court of Common Pleas. ' Said return showed all'the facts, and that the Sheriff had done all things necessary by him to be done in the making of said attachment, and the only defect in said proceedings by the Sheriff was in not making a return of all of his proceedings. He omitted to return the fact that he had left a certified copy of the order of attachment with the occupant of the premises so attached, and the amendment of said return was for the purpose of showing that fact.
    “That subsequent thereto, to-wit, August 17th, 1912, the Sheriff of Richland County, Ohio, on his own motion, was by the said court in said cause 11688, permitted to amend his return, so as to show what he had actually done in his proceedings under said order, and had omitted to state in his said original return, and to state in his amended return, the.following as an amendment thereto: T also on the same day, August 16th, 1911, left a certified copy of the order of attachment with the occupant, C. H. Walters, of the residence on lot number 1974, and I also left a certified copy with the occupant, Dr. C. M. Morgan, in the residence on lot number 3063.’ That all proceedings by said Sheriff to amend said return were regular in every respect, and that the Court of Common Pleas of Richland County, Ohio,'Upon the evidence found that said Sheriff, in making said levy, had complied with the law in every respect, but had omitted to state all said facts in said return. That on February 25, 1915, the defendant W. M. Hahn, by the consideration of said Court of Common Pleas, obtained a judgment against the said Charles H. Walters on his said claim in said cause in said court, in the amount of $1508.25. The court further finds that in other respects the proceedings of the Sheriff under his order were regular, and that the attachment was in all other respects regular and legal, save as hereinafter held.
    
      “3. That on the 22nd day of November, 1911, the defendant, W. J. Weirick, commenced an action against the defendant Charles H. Walters, in the Court of Common Pleas of Richland County, Ohio, cause number 11792, to recover as damages the purchase price of certain shares of stock of the Mansfield Rubber Company, an Ohio Corporation, located at Mansfield, Ohio, of which the said Walters had been the promoter and chief manager, setting out in his petition certain false and fraudulent representations inducing said purchase by the said ■ Weirick, from, the said Walters, which false and fraudulent representations the said Weirick relied upon at the time of said purchase of said stock, believing the same to be in all respects true, in the amount of $650.00. At the same time, the said Weirick in said cause filed his affidavit in attachment, which affidavit is in the following words, save and except the caption thereto, the signature of the affiant, and the jurat: ‘W. J. Weirick, being duly sworn, says that the claim sued upon is for fraud and deception, on the part of the defendant Walters to induce said Weirick to purchase certain shares of stock in The Mansfield Rubber Company, an Ohio corporation, doing business in Mansfield, Ohio, and engaged in the manufacture of automobile tires. That said claim is just. That the amount he believes he ought to recover is six hundred and fifty dollars and interest from May 2, 1910. That the defendant is a non-resident of the State of Ohio.’ That on the same date attachment was ordered to issue, and in pursuance thereof, the Sheriff of Richland County, Ohio, attached the same premises, lot number 1974, and lot number 3063, and thereupon made the following return:
    “The State of Ohio, Richland County, ss: “Received this writ November 22, 1911, at eleven o’clock A. M., and in obedience to the command thereof, I did on the 22nd day of November, 1911, at 11:25 o’clock A. M. by the appraisement of a prior attachment, attached the property described in the schedule marked ‘A’ hereto attached and made a part of this return, as will fully appear by reference to said schedule ‘A’.
    “That on August 29, 1912, the Sheriff of Rich-land County filed his motion in said cause, praying for an order permitting him to amend his return by adding the following thereto:
    “ T also on the same day, November 22nd, 1911, left a certified copy of the order of attachment with the occupant (C. H. Walters) of the residence on lot number 1974. And I also left a certified copy of the order of attachment with the occupant (Doctor C. M. Morgan) of the residence on lot number 3063, November 22, 1911.
    “‘(Signed) P. S. Carroll, Sheriff,
    “ ‘By C. L. Hartenfels, Deputy.’
    
      “This motion the court granted on said 29th day of August, 1912, and on the same day, the return was amended as herein indicated to correspond with the facts of the proceedings had by the Sheriff at the time of the original levy. That on December 20, 1911, the said Walters filed his answer in cause and joined issue with the plaintiff in the allegations of his petition, and on February 13, 1915, W. J. Weirick, obtained a judgment on his said petition against the said defendant in the amount of $733.75 by the consideration of the court of Common Pleas of Richland County, Ohio. The court further finds that in other respects the proceedings of the Sheriff under his order were regular, and that the attachment was in all other respects regular and legal, save as hereinafter held.
    “4. On December 27, 1911, the defendant, The Richland Savings Bank Company, obtained a judgment on a cognovit note against the defendants, Charles H. Walters, Charles Hoffman, Jesse E. LaDow, B. L. Chase, William Isaly, Jas. E. Waite, C. R. Grant, and The Mansfield Rubber Company, in the Court of Common Pleas of said County of Richland, Ohio, subsequent thereto some part of said judgment was paid, leaving a balance due on said judgment of $1890.07, and on said date December 27, 1911, a judgment was caused to be rendered in said court against the said defendants, the said Charles H. Walters et al., on a cognovit note in favor of the defendant, The Farmers Savings and Trust Company, subsequent thereto, some part of the same being paid, leaving a balance due of $1276.97. On May 3rd, 1912, the defendant, ■
    
      The Ashland Bank and Savings Company, obtained a judgment on a cognovit note against the defendants, Charles H. Walters et al., which judgment amounts to $2176.92. That no execution on said judgments of said banks or either of them was caused to issue against the defendant, Charles H. Walters, until the 15th day of Septembér, 1914, at which date a levy was attempted, and a second return appears then to have been made. That on August 7, 1912, the plaintiff, The Mansfield Lumber Company, began this action, in the Court of Common Pleas of Richland County, Ohio, on its mechanic’s lien against the defendants, seeking to sell the property, the said lots, and to marshal liens. On June 30, 1913, Van C. Cook was appointed Receiver of the said real estate, took possession of the same, then renting and collecting the rents thereof, and on October 17th, 1914, the said receiver was given an order by the court to sell said real estate, and in pursuance thereof, the same was then sold.” Upon this finding of facts the court, of appeals determined the following conclusions of law relative to the claims of plaintiff in error:
    
      “1. That the Court of Common Pleas of Rich-land County, Ohio, was within its jurisdiction, and had authority in law, to permit the said Sheriff of Richland County to amend his respective returns of said attachments to correspond with the facts, but that said attachments were without any virtue or force in law to create a priority until on and after the dates of their respective amendments; that the several defendant banks were not suspended as preferential liens to said attachments or either of them by reason of no executions being issued thereon until the 15th day of September, 1914. That said affidavit of W. J. Weirick does not present a claim ‘arising upon contract’, within the purview of section 11819, G. C., nor does it show the ground of an attachment, to-wit: ‘Fraudulently incurred the obligation for which suit is about to be brought,’ within the purview of paragraph 10, of said section 11819, and said attachment is of no virtue or force in law by reason of such insufficiency of said affidavit.”
    “7. That said W. M. Hahn, by reason of the lien obtained by him in attachment perfected August 17, 1912, and the judgment thereafter obtained, has the sixth best lien upon said monies and funds in the sum of $1573.25, which sum is ordered, paid, provided there be money sufficient in the hands of said receiver partially or wholly to pay the same.
    “It is therefore ordered, adjudged and decreed that said receiver shall pay out and distribute said funds, to-wit:
    1. To payment of costs, receiver’s and attorney’s fees, and compensation as above set forth, and found, taxed and to be taxed at $. ..'.....
    2. To the Charles Hoffman Company,
    the sum of.................. 1,106.50
    3. To The Mansfield Lumber Com-
    pany, the sum of............. 275.34
    4. To Edward Wentz, the sum of... 3,419.51
    
      5. To The Richland Savings Bank
    Company................... 1,890.07
    6. To the Farmers Savings and Trust
    Company .................. 1,276.97
    7. To The Ashland Bank and Savings
    Company................... 2,176.92
    8. To W. M. Hahn, the sum of..... 1,573.25”
    Plaintiffs in error are in this court to reverse this judgment.
    
      Mr. C. H. Workman; Mr. W. J. Weirick; Messrs. Brucker, Voegele & Henkel and Mr. James W. Galbraith, for plaintiffs in error.
    
      Mr. J. E. La Dow; Messrs. Douglass & Hutchison; Messrs. Semple & Sherrick; Mr. W. S. Kerr; Mr. C. H. Workman and Mr. C. H. Huston, for defendants in error.
   Wanamaker, J.

The questions arising in this case grew out of attempted attachments by William M. Hahn and W. J. Weirick, the plaintiffs in error, and the one question that is common to both claims, as considered and determined by the courts below, relates to the sheriff’s return upon the writ of attachment. Did the attachment date from the amendment of the return or from the date of the original return?

An examination of the record herein, together with the statutes applicable thereto, discloses the fact that there is a prior and paramount question upon this return w'hich this court must consider and determine; and that is, Was or was not the amendment essential to the validity of the return?

The amendment in both returns relates solely to a report of the fact that “a certified copy of the order of attachment was left with the occupant of the residence.”

Under the statute was the amendment necessary to the validity of the attachment ?

It is a familiar and elementary rule that remedial statutes shall be liberally construed. In some states statutes of attachment have received such liberal construction, but in other states the policy of strict construction has obtained.

The general assembly of Ohio, however, has settled this question for the people and courts of this state in the following words, Section 10214, General Code:

“The provisions of part third and all proceedings under it, shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice.”

It should be observed here that the statutes relating to attachment, and the proceedings thereunder, are embraced within said “Part Third.” And hence the polestar in their construction shall be to “assist the parties in obtaining justice.”

What must be stated in a return upon a writ of attachment ?

This question is one not to be answered by the court; but one already answered by the general assembly of Ohio, by virtue of Section 11836, General Code:

“The officer shall return upon every order of attachment what he has done under it. The return must show the property attached and the time it was attached. When garnishees are served, their names, and the time each was served, must be stated. The officer shall return with the order all bonds given under it.”

Clearly there is nothing specifically said in this statute requiring the return to show that “a copy of the order” was served on the owner or occupant of the premises.

But it is urged that the first sentence of this statute is so general and comprehensive, and so imperative, as to make that duty mandatory. This answer would have much force but'for the language following, which expressly specifies certain things which the return “must” show, to-wit: 1. The property attached. 2. The time it was attached.

Here is the meat of the cocoanut. Return made upon these two facts completes the attachment and brings the property within the custody of the court, unless there are garnishees, when that fact must also appear in the return, agreeable to the statute.

It should also be noted that this same section requires that there shall be returned with the order the bonds given under it. So that we have here another specific thing to be done.

Further reference as to the return is made in Section 11826:

“Then with the freeholders, who must be first sworn by him, he shall make a true inventory and appraisement of all the property attached, which shall be signed by the officer and freeholders, and returned with the order. When the property attached is -real property, the officer shall leave with the occupant thereof, or, if there is no occupant, in a conspicuous place thereon, a copy of the order.”

Nothing here is said about the return showing that “a copy of the order” was so left.

It is an old rule of construction that where a statute specifically and expressly mentions certain things, other things belonging to the same class, or occurring at the same time, are excluded. In short, when a statute makes certain definite things mandatory, the presumption is that the other things associated therewith are not mandatory.

The old Latin maxim expressio unius est exclusio alterius has become a primary and well-settled rule of statutory construction.

In support of this contention it should be further observed that the copy of the order so served on the occupant of the premises is clearly for the sole benefit of the owner. The public have no interest in it. It is like a summons issued upon a petition. It is to advise the owner, through the occupant, that the court has seized his property awaiting the determination of a cause of action now pending in court, or to be brought in court.

The returns made by the sheriff in both the Hahn and the Weirick writs were originally sufficient in law under the statute, and, therefore, all matters pertaining to the amendments thereto become unimportant by reason of such amendments being merely so much surplusage.

A court cannot add to the requirements of a return specifically provided by the general assembly of Ohio by virtue of a statute in such case made and provided.

It should be noted, however, that the defendants in error strongly urge two Ohio cases upon the consideration of the court, The Ohio Life Insurance and Trust Co. et al. v. Urbana Insurance Co. et al., 13 Ohio, 220, and Green v. Coit, 81 Ohio St., 280.

The third paragraph of the syllabus in the first of these clearly distinguishes it from the instant case:

“An execution in favor of A. was levied upon the northwest quarter of section 35, but in the sheriff’s return it was described as being levied on the southwest quarter of that section. An execution in favor of B. was afterward levied upon the same land, and correctly described in the sheriff’s return.
“Held, that the return upon the execution of A. can not be amended so as to affect the priority of B’s lien.”

It will be observed that the defect in the return was a substantial misdescription of the real estate, upon a thing made specifically mandatory through the word “must” in Section 11836, General Code.

In the second case, the Coit case, there was also a misdescription as to the property attached, which in itself is a fatal defect under said section regulating the return, and in and of itself sufficient to support the judgment in that case.

True, the second paragraph of the syllabus holds that the provisions which make it the duty of the officer to leave a copy of the order are “mandatory requirements,” and that a return that fails to show compliance with these requirements is insufficient to give the court dominion over the property, yet, in so far as the Coit case extends the requirements of the return beyond the plain mandatory provisions of the statute, the same is disapproved.

The statute regulating what the return “must” show, rather than any previous decision of the court, is obligatory upon this court.

So far as the two cases above cited may be in conflict with this decision, the same are disapproved.

This holding disposes of all questions as to the return, and makes the Hahn attachment a. lien as of the date of the original return.

There is one question remaining as to the Wei-rick attachment, and that grows out of the affidavit. The question in short is: Was the affidavit legally sufficient to authorize a writ of attachment?

Let us examine the affidavit of Weirick in order to learn the “nature of the plaintiffs claim/” for obviously it is to this we must look in order to determine whether or not the claim was one “arising upon contract.”

The affidavit is as follows:

“W. J. Weirick, being duly sworn, says that the claim sued upon is for fraud and deception on the part of the defendant Walters to induce said Wei-rick to purchase certain shares of stock in the Mansfield Rubber Company, an Ohio corporation, doing business in Mansfield, Ohio, and engaged in the manufacture of automobile tires. That said claim is just. That the amount he believes he ought to recover is six hundred and fifty dollars and interest from May 2, 1910. That the defendant is a non-resident of the State of Ohio.”

Now, what does the statute require by way of affidavit before the attachment shall issue? Section 11820, General Code, reads:

“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 next preceding section, when there is filed in his office an affidavit of the plaintiff, his agent or attorney, showing:

“1. The nature of the plaintiff’s claim;
“2. That it is just;
“3. The amount which the affiant believes the plaintiff ought to recover; and
“4. The existence of any one of the grounds for an attachment enumerated in such section.”

This statute must be applied to the affidavit in question not with the strictness required in a criminal proceeding nor with the particularity essential in a formal pleading. It is enough if the owner is substantially advised as to the matters set forth in said section providing for the affidavit.

This affidavit clearly shows that “the claim sued upon is for fraud and deception upon the part of the defendant Walters to induce said Weirick to purchase certain shares of stock” etc.

• Any business man would understand the nature of this claim from said allegation. Read this language in a newspaper, or anything else than a law book, and any reader of average intelligence would understand it.

The language of the affidavit clearly shows that the claim arose out of a sale of stock and that said sale was brought' about by fraud and deception upon the part of the defendant Walters.

There might be a question as to whether the fraud preceded the contract or the contract preceded the fraud. This may well be left to the casuist.

One thing is quite sure, had there been no fraud there would have been no contract, and had there been no contract there would have been no fraud.

It might be more correct to say that the claim was one “arising from a contract,” or “because of a contract,” or was one “arising upon fraud that induced a contract.” But it is not the purpose of courts to play with phrases in order to juggle justice.

There was a contract of sale. The plaintiff in error paid his money pursuant to that contract. His injury was due to that contract, and no matter how deep such contract may have been steeped in crookedness and crime, within the spirit of the law this was a claim “arising upon contract.” Here is a practical illustration of “The letter killeth, but the spirit giveth life.”

It must be admitted that if the contract were an honest one, and culminated in a promissory note, upon which suit was brought, and an attachment ordered- and had, that then clearly said claim would be one “arising upon contract.” When, however, the contract made by the parties is crooked, fraudulent or criminal, and the party seeks to recover back the money paid on such contract, why should it then be held that it sounds exclusively in tort and the right of attachment does not exist?

The plain paramount purpose of this statute was to provide a remedy for an injury within the scope of the several statutes providing for attachment; that injury was not to be limited merely to honest transactions and honest debts resulting therefrom, but certainly with equal force and reason applies to dishonest transactions inducing contracts growing out of frauds and crimes. To hold that the attachment statutes related only to the former, and did not include the latter, is too absurd to require further argument. It is just such judicial jugglery that has put some courts into deserved disrepute. Such distinctions are too technical to promote justice, and the legislature evidently meant what it said when it laid down for courts the rule of construction in such cases in the following language, “shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice.”

Within the provisions of this statute the claim was one “arising upon contract,” and the “nature of the plaintiff’s claim” was sufficiently shown by the affidavit.

And the further fact that the affidavit charges fraud in connection with the contract shows sufficiently that the debt or claim was fraudulently incurred.

This is not inconsistent with the claim that it arose on contract, because a contract may grow out of dishonest as well as honest transactions.

In substance and effect an attachment is after all only an execution in advance. It subjects the property to the satisfaction of a debt, if the debt be properly proved as pleaded. Naturally there must come a time when that attachment shall ripen into an execution, which execution shall date from the time of the attachment. The attachment is subject to dissolution at the instance of the debtor. If no motion is made to dissolve it, if it is permitted to stand until the final adjudication, it is then too late for any other person in another or independent proceeding to attack or assail its validity. It is clearly too late for the defendant in the original proceeding to attack it.

It must follow that it is likewise too late for third parties in another proceeding to attack it.

The judgment of the court of appeals is reversed and the cause is remanded to the court of appeals for such other and further proceedings in accordance with this judgment and opinion as may be agreeable to law.

Judgment reversed.

Nichols, C. J., Newman, Jones, Matthias, Johnson and Donahue, JJ., concur.  