
    Alton Pope et al. v. The Hibernia Insurance Company.
    1. Jurisdiction of a defendant can not be acquired by proceedings in attachment, on the ground of his non-residence in the state, when the petition-in the case, and the affidavit for attachment, fail to show that the cause of action is one arising upon contract, judgment, or decree.
    2. Jurisdiction can not be acquired in such case, by amendment of the petition and affidavit, showing a cause of action arising upon contract, without the issuance of an attachment after the amendment.
    -3 Where no jurisdiction is acquired as against the defendant in attachment, a garnishee in the case is not liable to an action, under section-218 of the code, for failing to answer as such garnishee.
    
      Motion for leave to file a petition in error to the District Court of Cuyahoga county.
    In the fall of 1871, Shoenfeld, Brothers & Co., of Chicago, had in their hands goods belonging to Alton Pope & Sons, of Cleveland, for sale on their account. The property was destroyed by fire. These goods were not insured; hut Shoenfeld, Brothers & Co. were insured on their own property in the Hibernia Insurance Company of Cleveland.
    ■ November 29, 1871, Pope & Sons brought suit, in the Court of Common Pleas of Cuyahoga county, against ■Shoenfeld, Brothers & Co., and caused an attachment to be issued against them, on the ground of their non-residence in this state, with notice of garnishment against the Hibernia Insurance Company. On the next day, a copy of the attachment and a notice of the garnishment were served ■on the treasurer of the insurance company.
    Shoenfeld, Brothers & Co. were not served with process ■otherwise than by publication, and never appeared in the case. The insurance company also made default, and filed no answer as garnishee. Judgment was thereupon rendered, June 4, 1872, against Shoenfeld, Brothers & Co. for $3,829.47.
    Pope & Sons then brought suit against-the insurance company for failing to answer as such garnishee. The ■company answered, by way of defense to this action, that no jurisdiction of the company was acquired by the service of notice of garnishment on its treasurer — such service not being in accordance with the statute. It further answered that the only ground of action stated in the original petition and affidavit. of attachment in the action against ■Shoenfeld, Brothers & Co., was their neglect of duty, in failing to procure insurance on the goods of Pope & Sons, destroyed by fire while in their hands, and did not state a cause of action arising on a contract, judgment, or decree; that, after publication and notice, under such petition and affidavit, the plaintiffs amended the petition and affidavit, stating the ground of action to be the neglect of Shoenfeld, Brothers & Co. to obtain an insurance of the goods of Pope & Sons, as they had agreed to do; that after such, amendment, there was no other or further service of process of any kind whatever; that neither Shoenfeld, Brothers & Co. nor the insurance company appeared in the case; and that, therefore, no jurisdiction of the parties was acquired in the original case. The facts alleged in the answer were not directly denied in the reply.
    On the trial, the court charged the jury as follows:
    “ In the view taken by the court of this case, the rights of the parties are determined by the pleadings of the case. According to the facts set forth'in the answer, which are not denied by the reply, the court, in the original action brought by the plaintiffs against Shoenfeld, Brothers & Co. in attachment, never acquired jurisdiction as against this defendant by the garnishee process in that case, and the order of attachment so issued was therefore wholly void, because no such case was made, in the petition in that attachment suit, as the statute requires for the issuing of an attachment against a non-resident; and the order of attachment being void for lack of jurisdiction, there was no jurisdiction acquired over the defendant as a garnishee in that proceeding, and, therefore, your verdict should be for the defendant.”
    To this charge, the plaintiffs excepted. The jury returned a verdict for the defendant, and judgment was rendered against him accordingly. The judgment of the Common Pleas was affirmed, on error, by the District Court, on the ground that the service of the garnishee notice on the treasurer of the insurance company was not made on the proper officer of the company, and was therefore insufficient to charge the company as a garnishee.
    To reverse these judgments, the plaintiff now moves for leave to file a petition in error in this court.
    
      J. JS. Ingersoll, attorney for plaintiffs in error:
    I. The service of garnishee process upon the treasurer of defendant, in the absence of the president and secretary from the state, was a sufficient and legal service, and binds the defendant. S. & S. 552, sec. 1; American Express Co v. Johnson, 17 Ohio St. 641.
    II. The amendment of the petition and affidavit in the original attachment suit was proper, and made good the garnishee proceedings. Code, secs. 134, 137; 19 Ohio St. 296; 23 Ohio St. 192.
    III. This is at most an attempt by defendants to dispute collaterally our judgment, and can not prevail. 10 Peters, 449; 15 Ohio, 435.
    
      Estep &; Burke, attorneys for defendants in error:
    1. The order of attachment was not lawfully issued,, because the suit was brought for a breach of duty — a neglect to insure — instead of for a breach of contract. The order of attachment was therefore improperly issued. S. & C. 1003, sec. 191.
    The amendment of the petition afterward did not cure-the defect, or confer jurisdiction on the court. Jurisdiction in such cases can only be acquired by compliance with the statute. The person whose property was attached was-never served with process. Hence the case was a mere proceeding in rem. The statute in such eases must be complied with, or the court has no jurisdiction.
    2. The service of the order on the insurance company was not according to the statute. S. & C. 1006, sec. 201; S. & S. 552, sec. (13) 1. The service here was made on the treasurer of the company, an officer not named in the statute, and hence was no service.
   Day, C. J.

The present suit was brought by the plaintiffs against the Hibernia Insurance Company, not on a-claim due to them, but upon a debt of the company to Shoenfeld, Brothers & Co., who were claimed to be their-debtors.

It is only through Shoenfeld, Brothers & Co. that the plaintiffs have a right of action. They base their right to pursue the insurance company solely upon proceedings in ■•attachment against Shoenfeld, Brothers & Co. and process ■of garnishment against the company. Failing to acquire a right of action thereby, this action against the company •must fail.

Shoenfeld, Brothers & Co., in the’ original suit of the ■plaintiffs against them, were not served with summons, nor -did they appear in the case. They were non-residents of -the State of Ohio, and, on this ground alone, it was sought -to acquire jurisdiction over them by proceedings in attachment.

Section 191 of the code authorizes the issuance of an attachment, when the defendant is a non-resident of the state; but it provides that an attachment shall not be granted on that ground, “ for any claim other than a debt ■or demand arising upon contract, judgment, or decree.”

The cause of action alleged in the petition and affidavit for an attachment in that case, was not one “ arising upon contract, judgment, or decree,” but was based solely on a breach of duty, without averring that the duty arose by -contract. All the proceedings in attachment and garnishment were had under this petition and affidavit. Being clearly unauthorized by the statute, no jurisdiction of the non-resident defendants was acquired thereby; and that failing, the insurance company was not bound to answer as garnishee. Indeed, the attachment,proceedings, as against ;both the defendants in the case and the garnishee, were a nullity for want of legal authority.

The garnishee not being bound to answer, no right of action accrued to the plaintiffs, under section 218 of the ■code, for failing to answer.

But it is claimed that the case was brought within the -statute by amendment of the petition and affidavit. It is true they were amended; but if a ease for an attachment was then made, none was issued. The attachment previously issued being a nullity, no jurisdiction could be .acquired under it by subsequent amendment. The amendment merely made a case which authorized proceedings fo acquire jurisdiction. It did not quicken that which was without legal vitality, and confer jurisdiction by virtue of what had been done without any bases of legal authority..

Amendments, where the court obtains no jurisdiction,, are of no avail. Those authorized by the code relate to cases in which the court acquires jurisdiction of the parties.

There was, then, no error in the judgment of the Court of Common Pleas, and no error in its affirmance by the District Court, though a different reason was' assigned by that court for affirming the Common. Pleas. As to the validity of that reason, we express no opinion.

Motion overruled.

McIlvaine, White, and Rex, JJ., concurring. Welch,, J., not sitting.  