
    SUFFICIENCY OF AN AFFIDAVIT IN REPLEVIN.
    Court of Appeals for Muskingum County.
    A. B. Smith v. Lizzie Feasley.
    Decided, November 18, 1916.
    
      Replevin—Proceeding Properly Based on Affidavit—Verified by Attorney for the Plaintiff.
    
    An affidavit in replevin is not a pleading, and its verification is not governed by Section 11358, limiting the causes in which, the verification may be by an agent or attorney, but rather by Section 12052,. making an affidavit of an agent or attorney of the plaintiff sufficient.
    
      
      H. G. Wine, for plaintiff in error.
    
      A. A. George, contra.
   Houck, J.

Plaintiff in error contends that the common pleas court erred in sustaining a motion to the affidavit in replevin of the plaintiff below, the plaintiff in error, and also in dismissing the petition in the case. The affidavit in replevin was made by the attorney for the plaintiff, and the defendant below, the defendant in error, urges that it is not sufficient in law because it does not comply with the provisions of Section 11358 of the General Code of Ohio. Upon the other hand, the plaintiff in error contends that the verification of said affidavit in question was made under favor of Section 12052 of the General Code of Ohio, and that the same is in full compliance with law.

Upon an examination of these sections of the General Code, we are fully convinced that the claim of plaintiff in error is sound. An affidavit in replevin is not a pleading, and therefore Section 11358 of the General Code does not apply to the verification of, or as to who is authorized in a replevin case to make the affidavit, but Section 12052 governs. ■ The affidavit under consideration, as we view it, fully complies with all the provisions of Section 12052 of the General Code. Therefore, from our examination of the record in this case, we find error therein prejudicial to the rights of the plaintiff in error, and the judgment of the common pleas court is reversed and the cause remanded to that court with instructions to overrule the motion to the affidavit in replevin and the order dismissing the petition is set aside.

Cause remanded to the common pleas court with instructions to carry out the order of this court.

Shields, J., and Powell, J., concur.  