
    Smith v. Feasley.
    
      Replevin — Sufficiency of affidavit — Verified by attorney for plaintiff.
    
    An affidavit in replevin is not a pleading, and its verification is not governed by Section 11358, General Code, limiting the causes in which the verification may be by an agent or attorney, but rather by Section 12052, making an affidavit of an agent or attorney of the plaintiff sufficient.
    (Decided November 18, 1916.)
    Error: Court of Appeals for Muskingum county.
    
      Mr. H. C. Wine, for plaintiff in error.
    
      Mr. A. A. George, for defendant in error.
   Houck, J.

Plaintiff in error, who was plaintiff below, contends that the common pleas court erred in sustaining a motion to his affidavit in replevin, and also in dismissing the petition in the case. The affidavit in replevin was made by the attorney for the plaintiff in error, and the defendant in error urges that it is not sufficient in law, because it does not comply with the provisions of Section 11358, General Code. Upon the other hand, the plaintiff in error contends that the verification of said affidavit in question was made under favor of Section 12052, General Code, and that the same is in full compliance with law.

Upon an examination of these sections of the General Code, we are fully convinced that the claim of plaintiff in error is sound. An affidavit in replevin is not a pleading, and therefore Section 11358, General Code, does not apply as to the verification, or as to the party authorized in a replevin case to make the affidavit. Section 12052 governs. The affidavit under consideration, as we view it, fully complies with all the provisions of Section 12052, General Code. Therefore, from our examination of the record in this case, we find error therein prejudicial to the rights of the plaintiff in error, and the judgment of the common pleas court is reversed and the cause is remanded to that court with instructions to overrule the motion to the affidavit in replevin; and the order dismissing the petition is set aside.

Cause remanded to the common pleas court with instructions to carry out the order of this court.

Judgment reversed and cause remanded..

Shields and Powell, JJ., concur.  