
    Kirk v. Stevenson.
    
      Affidavit for attachment that property not exempt — Traversed by affidavit of defendant — Burden of proof — Motion to discharge attachment — Section 6522, Revised Statutes.
    
    1. Where the averment in an affidavit for attachment before a justice of the peace that the property about to be attached is not exempt from execution is traversed by the affidavit of defendant, and it is shown circumstantially by such affidavit that the property is exempt, the burden is on the plaintiff to maintain the truth of the statement by other evidence, and where no such additional evidence is offered the attachment should be discharged.
    2 Notice of a motion to discharge an attachment given the plaintiff by the defendant the day after the attachment is levied, and before judgment, is reasonable notice within the meaning of section 6522, Revised Statutes. And it is error, in such case, for the justice to overrule the motion for want of sufficient notice.
    (Decided January 31, 1899.)
    Error, to the .Circuit Court of Crawford county.
    Henry Stevenson commenced his action November 29, 1895, against Albert Kirk before a justice of the peace of Crawford county, to recover for money claimed to have been paid by'him as- surety for Kirk, and filed an affidavit for attachment in which it was stated that the property about to be attached is not personal earnings of defendant fob services rendered within three months, and is not exempt from execution, and that defendant is about to remove his property, or a part thereof, out of the county with intent to defraud his creditors, etc., etc. An order of attachment issued which was served December 2d, by attaching sundry articles of property, which were valued by the appraisers at $415.10. On the third day of December, at the time set for trial, but beforé the trial commenced, the parties being present, the defendant orally moved to discharge the attachment as to all the property attached, on the ground that said property is exempt, and thereupon filed a written motion and affidavit representing that he was a farmer, the head of a family, and not the owner of a homestead, and claimed a portion of the chattels attached as exempted absolutely and others by selection then and there made as tools and implements necessary for carrying on his business. Objection to a hearing of the motion was made by plaintiff for the reason that he has no notice and no time to prepare affidavits and other testimony to support the attachment. No continuance was asked by either party. Thereupon the justice overruled the motion on the ground that defendant did not give plaintiff notice of the motion as required by law, and that the demand for exemption was not made to the proper person.
    On error to the common pleas the ruling of the justice was reversed. The court found, also, from the affidavits, that Stevenson was not and is not entitled to hold the property attached, and that Kirk was and is entitled to the possession,of the same as his exemption aforesaid, and that said property was and is exempt from attachment and execution, and there being no evidence whatever to sustain said attachment upon said property as aforesaid, it is therefore ordered, adjudged and decreed that said order of attachment be and the same is hereby discharged as to all of said property so attached as aforesaid, and said Kirk is restored to right of possession of said property and to all rights in connection therewith of which he was deprived by reason of said attachment and the orders and judgments of said justice. This judgment was reversed by the circuit court.
    
      Edward Volrath, for plaintiff in error.
    
      Charles Qallinger, for defendant in error.
   By the Court:

The justice of the peace mistook his dutv. The notice given was a reasonable one considering that the attachment was served only the day before, and the motion, being interposed before judgment, was in abundant time. Section 6522, Revised Statutes. If the plaintiff desired to support his claim as to the attachment by further proof he should have asked a continuance. Swan’s Treatise, 442.

The affidavit of defendant traversed completely one essential ground of attachment made by the affidavit of plaintiff, and, as found by the common pleas, left no evidence whatever to sustain the attachment. Seville v. Wagner, 46 Ohio St., 52. Nor was the demand made of the wrong person. The justice had jurisdiction to entertain and dispose of the contention.

The common pleas properly reversed the order of the justice and discharged the attachment, and in reversing that judgment the circuit court erred.

Reversed.  