
    The Republic Tool & Manufacturing Co. v. Lenarz.
    
      Attachment — Section 10258, General Code — Services of executive officers not “work or labor.”
    
    Executive officers of a corporation are not entitled to a writ of attachment for “work, or labor” by force of Section 10253, General Code.
    (Decided April 16, 1923.)
    Error: Court of Appeals for Cuyahoga county.
    
      Messrs. Steams, Chamberlam & Boyon, for plaintiff in error.
    
      Messrs. Grossman & GtJossmcmi, for defendant in error.
   Sayre, J.

A motion was made in the Municipal Court to discharge a pending attachment in this case, but the motion was overruled.

The agreed statement of facts reads as follows:

‘ ‘ That the plaintiff, one Elmer Lenarz, had brought suit against The Republic Tool & Manufacturing Company, for salary due him upon an oral contract of employment, while he had been acting as a Vice President and General Manager of the said Company. It was agreed that the plaintiff below performed no manual labor in the ordinary sense of said term, that he was solely an executive of said company, and that whatever work or labor he may be said to have performed, was such work as executives are commonly called upon to do. Plaintiff below attached monies of the defendant company, alleging as his sole ground that said claim was for work or labor.”

Section 10253, General Code, provides that an attachment may issue if the affidavit, in addition to the statement of other facts, states “that the claim sued on is for work, labor or necessaries.” The affidavit in this case states that the claim is for work and labor.

The precise question then is, What is meant by the words “work, or labor” in 'Section 10253?

Do these words include the performance of the duties which ordinarily rest upon executive officers of a corporation?

We answer in the negative, but we a.re unwilling, however, to say that the words mean manual labor only, for we do not challenge the conclusion reached in the case of Northern Ohio Gas Appliance Co. v. Hallett, 16 C. C. (N. S.), 342.

The word “work” covers all forms of physical or mental exertions, or both combined, for the attainment of some object other than recreation or amusement. State v. Rose, 125 La., 462, 51 So., 496, 26 L. R. A. (N. S.), 821-823.

We do not undertake to state any rule which will distinguish claims for work and labor from all other claims, but will illustrate, in a general way, our conception of the meaning of the terms under consideration. They are intended to include certain classes, of services, such as are ordinarily performed by laborers, skilled and unskilled, clerks, bookkeepers, servants, typists and salesmen. In our judgment, there must be included also foremen, overseers, mine bosses, and all those employees, who, while they may do no manual labor, are on the job directing the progress of the undertaking or business from hour to hour. This view will include architects who superintend the construction of buildings. (Hughes v. Torgerson, 96 Ala., 346, 16 L. R. A., 600, and note.)

But we are unable to believe that the Legislature meant to include within the terms of the statute claims of physicians, attorneys, or executive officers. The latter, in the conduct of the business, stand in the same relation to the business as the individual owner does, when he manages and conducts his own business. He is the employer of those who work and labor. He could not have an attachment against his own property. Executive officers are employers, and, while they are not owners, they stand in the place of such owners so far as the conduct of the business is concerned, and it is often their management of the business that makes attachment proceedings necessary. The Legislature never, in our judgment, intended that such persons should have a right to a writ of attachment under the provisions of Section 10253, General Code.

The order of the Municipal Court, refusing to discharge the attachment, was erroneous and that court is directed to discharge the attachment issued in this case. The judgment will be reversed.

Judgment reversed.

Middleton, P. J., and Mauck, J., concur.

Judges of the Fourth Appellate District, sitting-in place of Judges Vickery, Sullivan and Levine, of the Eighth Appellate District.  