
    Mary O'Farrell et al. v. Theodore L. Stockman.
    Wiere an attaching creditor files the proper affidavit entitling him to am attachment, his failure to file the statutory undertaking for the indemnity of the defendant does not render the attachment absolutely void, but is a mere irregularity, of which the defendant in attachment alone can taka advantage.
    Error to the district court of Lucas county.
    The case is sufficiently stated in the opinion of the court.
    
      M. I¿. da 12. Waite for plaintiffs in error:
    The simple question presented is, whether the attachment created a lien upon the property prior to that of the subsequent judgment.
    
      1. Section 193 of the code provides that, except upon th« ground that the defendant is a non-resident of the State, “ the order of attachment shall not be issued by the clerk ” until an undertaking has been executed, etc.
    The issuing of the order of attachment is the act of the clerk. In this respect he acts as a ministerial officer. He can act only when authorized to do so by the statute. If he omits any act required of him as a condition precedent to.the issuing of the order, the attachment is unauthorized, and creates no’ lien upon attached property not actually taken into the possession of the officer.
    See Statutes of Indiana, ed. of 1823, pp. 69 and 61; Cousins v. Brashier, 1 Blackf. 85; Barkeloo v. Randall et al., 4 Blackf. 476; Fellows v. Miller, 8 Blackf. 231; Hutcheson v. Ross, 2 A. K. Marsh. 350; Samuel v. Brite, 3 A. K. Marsh. 317; Martin v. Thompson, 3 Bibb. 252; Ford v. Woodward, 2 Smedes & Marsh. 260; Ford v. Hurd, 4 Smedes & Marsh. 683.
    2. It is said, however, this defect can only be taken advantage of on a motion to dismiss the attachment, which must be made before judgment in the action.
    This cannot be so. The writ was unauthorized and void. It has never in any manner been recognized by the court as a valid attachment.
    3. The appearance of the defendant cannot have the effect to waive any defect in. the proceedings complained of. The attachment was.no part of the process which brought him into court. That brought, or attempted to bring, in the property, not the defendant.
    4. It was said by the judge who delivered the opinion in the district court, that the provision in sec. 193 is like that in sec. 584 of the code, which is, that before any writs or orders for provisional remedies shall be issued, a praecipe shall be filed with the clerk.
    Sec. 193 declares that a writ shall not issue until the bond is filed. ■ In the language, therefore, the sections differ; but sec. 584 is for the protection of the clerk, 193 for the protection of the defendant. 2 A. K. Marsh. 350.
    
      The clerk may dispense with what is intended for his benefit He cannot, however, .act for the defendant.
    
      Kent, KTewton & Pugsley and C. Dodge for defendant in error: .
    1. The court having jurisdiction to issue the order of attachment, the irregular exercise of that jurisdiction cannot be a nullity, but the order is valid until vacated in the action wherein it was issued.
    2. A person not a party to the action cannot object to the non-performance of a condition precedent to the issuing of the order, which was intended for the sole benefit of the defendant, and which he has waived by failing to object during the pendency of the action.
    Both of these propositions are, substantially, decided in Ward v. Howard, 12 Ohio St. 158. See also Paine v. Mooreland, 15 Ohio, 435, 443; The Bank of the United States v. Vorhees, 10 Peters, 449, 479; Cumberland v. Hall, 3 McCord, 345; Drake on Attachment, secs. 116, 143.
   Welch, <T.

This was an action to recover the possession of a lot in the city of Toledo. Both parties claimed title under sale on execution, each under a separate judgment against the owner of the lot. The judgment under which Stockman claimed was obtained by a proceeding in attachment, which was commenced by filing the proper affidavit, but without executing an undertaking for the indemnity of the defendant, as required by the statute. The judgment under which the plaintiffs in error claimed was rendered after the service of the attachment upon the lot, but before the rendition of the judgment in attachment. Before the rendition of the latter judgment the defendant in attachment entered his appearance, but took no exception ón account of the want of an undertaking. The simple question, therefore, was, whether the attachment was absolutely void for want of an undertaking. The common pleas and district courts held that it was not, and accordingly gave judgment for Stockman. In this we see no error. The undertaking is not essential to jurisdiction in attachment. It is designed exclusively for the benefit of the defendant. He may waive it, and the omission to file it is a mere irregularity, of which he alone can take advantage. The effect of the omission is to render the proceeding voidable, but not absolutely void.

Judgment affirmed.

Brinke-rhorf, C.J., and Scott, White, and Day, JJ., concurred.  