
    Price Hill Colliery Co. v. Old Ben Coal Corp. et al.
    
      (Decided June 16, 1930.)
    
      Messrs. Dempsey <& Dempsey, for plaintiff in error.
    
      Messrs. Nichols, Morrill, Wood, Marx & Ginter, for defendant in error, the Old Ben Coal Corporation.
    
      Mr. W. F. Fox, for defendant in error, the Universal Coal Sales Company.
   Hamilton, J.

Defendant in error, the Old Ben Coal Corporation, sued out separate writs of attachment against the Universal Coal Sales Company and the Price Hill Colliery Company. An affidavit for attachment was filed against each company.

The sales company and the colliery company each filed a motion to discharge the attachment against it, on the ground that the petition and the affidavits for attachment were insufficient to sustain the attachments, without bond.

The trial court overruled the motions to discharge the attachments, and from that judgment error is prosecuted to this court.

The Old Ben Coal Corporation moves to dismiss the error proceeding on the ground that the judgment was not a final order, and therefore not reviewable. That motion will be overruled; this court on January 13, 1930, in the case of Farmers Bank & Trust Co. v. Cooper Tire & Battery Co., 37 Ohio App., 54, 173 N. E., 743, having previously held such to be a final order affecting a substantial right. The attachments were issued without bond; the attachments being against foreign corporations which had not complied with the laws of the state of Ohio entitling them to do business in the state of Ohio. The affidavits in attachment allege these necessary facts. Section 11819, General Code, is authority for the attachments on these grounds, providing the parties are within the final clause of the section, which reads: “An attachment shall not be granted on the ground that the defendant is a foreign corporation or not a resident of this state, for any claim other than a debt or demand, arising upon contract, judgment or decree * * *."

Plaintiff in error contends that the petition fails to show that the demand is one arising upon contract, judgment, or decree against it, and argues that, since the judgment referred to in the affidavit was had against the Universal Coal Company, and not against the Universal Coal Sales Company or the Price Hill Colliery Company, the relief sought is one in equity in the nature of a proceeding in aid of execution, and that therefore the claim does not arise on contract, judgment or decree.

On the question as to whether or not a petition can be taken into consideration in determining the sufficiency of the affidavit, the authorities are not uniform. If there are ambiguous statements in the affidavit, which are explained in the allegations of the petition, courts have held that the petition may be considered as explanatory of those statements. But we do not understand that the petition is a part of the affidavit. These affidavits need no explanation. Whether or not the statements are true could not be determined upon the petition on the motion to discharge.

The bill of exceptions indicates that, at the hearing on the motions, certain evidence' was taken and affidavits filed going to the merits of the claim under the allegations of the petition, wherein liability and nonliability of the Universal Coal Sales Company and the Price Hill Colliery Company for the original claim, in which a judgment was secured against the Universal Coal Company for breach of contract, were sought to be shown.

Section 11820, General Code, provides the requisites of an affidavit upon which the order of attachment shall issue.

Subsection 1 of Section 11820 provides that the affidavit must show the nature of the plaintiff’s claim.

The statements in the affidavits show the nature of the plaintiff’s claim; that it arose out of a contract for the sale and delivery of coal; that the claim had been reduced to judgment; and that defendants were liable for the payment of the same.

Subsection 2 of Section 11820, General Code, provides that the affidavit must show that it is a just claim. The affidavit is “that said claim is just.”

Subsection 3 of Section 11820 provides that said affidavit must set forth the amount which the affiant believes the plaintiff: ought to recover. The affidavit set forth the amount of the claim, the sum of $11,776, with interest.

Subsection 4 "of the same section of the Code provides that the affidavits must set forth the “existence of any one of the grounds for an attachment enumerated in such section.”

The affidavit follows with the statement that the defendants are foreign corporations organized under the laws of another state, and that said defendants have not complied with the laws of the state of Ohio pertaining to foreign corporations.

The affidavits therefore, on the face thereof, comply with all the requirements of the statute.

Moreover, the proceeding is based on the main case claiming damages for breach of contract. The amount of damages was ascertained in the main action and reduced to judgment. The amount was certain, and enabled the plaintiff below to set forth in the affidavits the amount which it ought to recover. The basis of the claim is both on contract and a judgment, fully meeting the requirements of the statute.

If on the motions we were to consider whether the petition states an action at law or one in equity, the conclusion would make no difference. See Goble v. Howard, 12 Ohio St., 165. The petition, among other things, charges that the Universal Coal Company and the Universal Coal Sales Company and the Price Hill Colliery Company are one and the same; that, after the Old Ben Coal Corporation secured a judgment against the Universal Coal Company, it was discovered that the assets of the Universal Coal Company and all of its property had been taken over by the Price Hill Colliery Company and a new organization known as the Universal Coal Sales Company formed, all for the purpose of defrauding and preventing the collection of the judgment against the Universal Coal Company; that the Price Hill Colliery Company and the Universal Coal Sales Company were the true principals in the breach of contract case, or had become liable for the payment of the judgment by reason of taking over all of the assets of the judgment debtor.

Thus is presented an additional ground for claiming that the claim arises upon contract, in that by taking over all of the assets of the debtor corporation there was assumed a contract, implied in law, to pay the debts of the judgment debtor.

This proposition as to an implied contract in law is sound under the authorities collated in 15 A. L. R., 1112, and 30 A. L. R., 558, but it is not necessary to rely upon this rule in this case.

See, also, Auglaize Box Board Co. v. Hinton, 100 Ohio St., 505, 126 N. E., 881.

A like case to the one under consideration, between the same parties, based on the same main case and judgment, arose in the Supreme Court of Michigan, that is, Old Ben Coal Co. v. Universal Coal Co., 248 Mich., 486, 227 N. W., 794, 795, in which the court said, quoting from Spokane Merchants Assn. v. Clere Clothing Co., 84 Wash., 616, 147 P., 414, 416: “The court may ‘look through forms to substance, and ignore a mere colorable corporate entity to the end that rights of third parties shall be protected.’ ” And the conrt sustained the attachments.

The judgment of the court of common pleas of Hamilton county, overruling the motions to discharge the attachments, will be affirmed.

Judgment affirmed.

Cushing, P. J., and Eoss, J., concur.  