
    Garrett & Sons v. Taylor & Williams.
    Without a petition by the creditor as prescribed by section 3297 of the code, the judge of the superior court has no jurisdiction to grant or issue an attachment against a fraudulent debtor. A mere affidavit setting forth the facts is proof, not pleading, and is no substitute for a petition. In this case, the attachment having been issued upon affidavit and without petition, a motion made by the claimants to dismiss the levy should have been granted.
    March 5, 1892.
   Judgment reversed.

Attachment. Fraudulent debtor. Before Judge Willis. City court of Columbus., April term, 1891.

Thornton & McMichael and McNeill & Levy, for plaintiffs in error.

Peabody, Brannon & Hatcher, contra.

Attachment on behalf of Taylor & Williams against Dewberry was issued and levied. Garrett & Sons interposed a claim, on the trial of which the property was found subject. The court overruled motions in arrest of judgment and for a new trial, and the claimants excepted. Among the exceptions are, that the court erred in refusing to dismiss the levy of the attachment, on motion of the claimants, on the grounds (1) that “there was no petition presented or filed to the judge,” fully and distinctly stating the grounds of complaint against the defendant in attachment and praying for an attachment against his property liable to attachment; (2) that there was no order of the j udge ordering or granting an attachment to be issued. The affidavit to obtain the attachment was sworn to, and bond executed, before the judge of the superior court on December 7,1888; and the attachment was issued by said judge on the same day. The ground sworn to was,' that Dewberry had “ sold his property, to wit a certain stock of goods in the city of Coluinbus, which is liable for the payment of his debts, for the purpose of avoiding the payment of his debts.” On December 14, the plaintiffs filed their declaration alleging that Dewberry was indebted to them on December 1st the sum for which the attachment was sued out under the code, §8297.  