
    SUIT IN ATTACHMENT ON A PROMISSORY NOTE.
    [Circuit Court of Franklin County.]
    Oscar Orlopp v. Schueller, Administrator.
    Decided, October 23, 1903.
    
      Promissory Note — Suit in Attachment Upon — Administrator Holding an Undetermined Legacy — Made Garnishee — Jurisdiction of Probate Court is Interfered with Thereby — Common Pleas Court can not Order Administrator to Pay Money, Until — Jurisdiction not Lost by Failure to Make Order — Conflicting Bates in Petition— Purpose of Section 5522 Requiring the Nature of Claim to be Set Forth in an Affidavit for Attachment.
    
    1. A writing setting forth that, “I hereby certify to have received of D a loan for three months, $500,” with date and place of execution and name of maker, constitutes a promissory note upon which an action may be maintained.
    2. An attachment issued in a suit upon a promissory note is not insufficient in law because the date of the note is differently stated in the petition and the amended petition.
    3. An administrator may be made the garnishee in such a case where it appears upon the filing of his final account that the contingency of lack of funds to pay the legacy or a part thereof to the defendant is not likely to arise; such a process does not interfere with the settlement of the estate, nor is the legacy withdrawn from the custody of the administrator.
    Sullivan, J.; Wilson, J., and Dustin, J., concur.
    Error to the Court of Common Pleas of Franklin County.
   On January 8, 1902, defendant in error brought suit against plaintiff in error, in the Court of Common Pleas of Franklin County, to recover from plaintiff upon a certain paper writing, designated in the petition as a promissary note, averring the same to have been executed by plaintiff in error about the year 1875, in the sum of $500, payable to the defendant’s estate, and that he was unable to state the date at which said note matured or the rate of interest it bore, but that the same was past due.

It was further averred that plaintiffs, in 1878, removed from the state of Ohio to the town of Atcheson, in the state of Kansas, and is now, and ever since the year 1878, has lived beyond and without the jurisdiction of the state of Ohio; that through some inadvertance said note 'had been either lost or mislaid, but that, in a reasonable time, a copy thereof would be filed with the court. Then followed the averment that no payments had been made on said note; that there was due defendant in error on the same $500, with interest from 1875; that by the last will of Oscar Orlopp, late of Franklin county, deceased,» plaintiff in error was named as legatee; that the estate of said deceased testate was solvent; that the property bequeathed to plantiff in error was within the county of Franklin, state of Ohio. Defendant in error prayed for a personal judgment for amount of said note, and interest thereon from 1875.

On the same day, January 8, 1902, defendant in error filed an affidavit in the clerk’s office in which he set forth that he had commenced an action against the plaintiff in error in the Common Pleas Court of Franklin County, Ohio, upon a promissory note executed by plaintiff in error to the deceased, Daniel Deiss, for the sum of $500, with interest from 1875; that said claim was just, and said defendant in error ought to recover said amount and interest thereon from the year 1875; that plaintiff in error was a non-resident of Franklin county and state of Ohio; that affiant had good reason to believe, and he did believe, that Charles W. Haldy, administrator with the will annexed of the estate of Odo Orlopp, who died within said county of Franklin and state of Ohio, had property of the plaintiff in error in his possession liable to be attached in said action, consisting of money or other chattel property, and that the facts stated in said affidavit were true. Upon which affidavit the clerk of the common pleas court issued an order of attachment, and notice of garnishment to the said Charles W. Haldy, administrator.

On January 13, 1902, defendant in error filed an amended petition in the common pleas court. The amended petition set out a copy of the obligation averring that the paper writing was either a contract or promissory note, but the same paper writing referred to in the original petition. The amended petition sets forth a copy of the paper writing, which is in words and figures as follows:

“I hereby certify to have received of Mr. Dan Deiss, as a loan for three months, $500.
“Emillie Orlopp,
“Oscar Orlopp.
“Columbus, Ohio, August 12, 1872.”

On January 9, 1902, order of attachment and garnishment was served upon Charles W. Haldy, administrator of the estate of Odo Orlopp, deceased, by handing him personally a certified copy of same. Publication of the proceedings was made as provided by law. On March 14, 1902, the plaintiff in error filed a motion asking that said attachment be discharged for the several reasons set forth in said motion, appearing for the purpose only of making said motion, and without any intention of entering his appearance for any other purpose, or submitting to the jurisdiction of said court over his person.

This motion was overruled, to which an exception was taken by plaintiff in error, to which action of the court, in overruling said motion, plaintiff prosecutes error to this court. A bill of exceptions was taken, bringing upon the record all of the testimony produced upon the hearing of said motion. The garnishee made answer in the case March 18, 1902, and it shows that there will be in his hands about the sum of $1,500 coming to plaintiff on his legacy.

Whilst the motion sets forth several grounds and the same grounds in several different forms, there are but three insisted upon by plaintiff in error, in his brief. Counsel for plaintiff contends first, that the affidavit is insufficient in law to maintain an attachment because of the difference between the date of the instrument sued upon, as set forth in the original and amended petitions, and therefore a different date from which to compute interest; in other words, the attachment being issued upon the affidavit filed with the original petition setting forth a different date from that appearing in the amended petition, and a different date from which interest should be computed, the nature of the claim was not set forth in the affidavit. The statute requiring the nature of the claim to be set forth in the affidavit is for the purpose of determining whether it is of such a character as entitles the party to an attachment. In an action upon a promissory note, a party may have an attachment if any of the statutory grounds upon which it may be issued exists.

The date of the instrument does not determine its character. The instrument set forth in the amended petition is substantially in form the. same as referred, to in the original petition. It is evidently the same debt, and in form and substance it is a joint and several promissory note, and upon which either a joint or several action may be maintained. The affidavit, therefore, we think good.

Second. Counsel for plaintiff in error contend that a legacy, the amount of which has not been fully determined by a final account of an executor or administrator, can not be attached. Under this contention he claims that no legacy can be attached and the executor or administrator garnisheed. In support of this claim he cites a number of authorities. We are of the opinion that under Section 5531, Revised Statutes, an undetermined legacy in the hands of an administrator or executor may be garnisheed; that administrators and executors are included under the designation of “other” officers in the above section. When referred to in a number of authorities they are designated as officers of court. We refer specially to the case of Byers v. McAuley, 149 U. S., 608, 615, quoting:

“An administrator appointed by a state court is an officer of that court; his possession of the decedent’s property is a possession taken in obedience to the orders of that court; ff is in the possession of the court.”

Were it not for the section above referred to we would not be prepared to say that a legacy could be attached, especially if the amount of the legacy was undetermined. The answer of the garnishee shows that he will have, upon final settlement of the estate, about $1,500 to be applied to the legacy of plaintiff in error. We hold it is subject to attachment, citing in support of this holding, Stratton v. Ham, 8 Ind., 84, 85, and also Byers v. McAuley, supra, from which we quote “all remedies to which parties may be entitled against officers, not involving the withdrawal of the property or its proceeds from the custody of the officer and the jurisdiction of the court they may pursue.” The process given parties by Section 5531, Revised Statutes, does not withdraw the property from the custody of the officer or the jurisdiction of the court, or in any wise interfere with the proceedings of the probate court in the settlement of an estate, but is a remedy providing what a creditor may have to subject to the payment of a claim against a debtor who, upon a final settlement of an estate, may be entitled to receive money or property as a legacy. Upon the remaining question, that the court lost jurisdiction over the property because upon the answer of the garnishee it made no order as provided by Section 5550, Revised Statutes, we are of the opinion that the above section does not apply, where property is garnisheed in the hands of any one of the officers designated in Section 5531, Revised Statutes.

The service of process of garnishment upon an officer binds from date of service only such interest in the funds in his hands as may be determined as belonging to the debtor, by the court, under whose orders the officer holds such funds. The court issuing the order of attachment, has no power to order the funds taken from the custody of the court holding it. The order is limited to the amount that may be found coming to the legatee on distribution upon final settlement of the estate. Such order binds only such interest in the funds as may ultimately be found belonging to the debtor. The money being already in the custody of an officer who has given bond, the undertaking required by Section 5550, Revised Statutes, has no application.

The court issuing the order of attachment is without authority to require any part of the property or money, held by an officer under process of the court whose officer he is, paid into court issuing the order of attachment until a final adjudication by the court having custody of the funds. No bond could be required of such officer because the extent of the debtor’s interest can not be known until a final adjudication by the court having custody of the funds. The court below acquired no jurisdiction over the person of the plaintiff, but did acquire jurisdiction over a thing and did not lose it. We find no error of record prejudicial to plaintiff in error and the judgment is affirmed at costs of plaintiff in error.

A. H. Johnson and Henry Elliston, for plaintiff in error.

Gumble & Gumble, for defendant in error.  