
    Joseph Krumm et al. v. W. C. G. Krauss.
    An affidavit in attachment, stating as the sole ground for the attachment, that the defendant is a “non-resident of the county,” made before a justice of the peace, in a case subsequently certified to the Court of Common Pleas under section 53 of the justice act, is not sufficient to authorize the issuing of an order of attachment in the Court of Common Pleas, in which court an order of attachment on the ground of non-residence can issue only when it is shown that the defendant is a “ non-resident of the State"
    
    Motion for leave to file petition in error to reverse the judgments of the District Court and Court of Common Pleas of Putnam county.
    
      In proceedings in attachment before a justice of the peace, {he plaintiff (defendant in error), made oath that the defendants (plaintiffs in error), “ were non-residents of Putnam county; ” which is one of the grounds for attachment before a justice. S. & S. 420. The constable returned the ■summons “ not found;” and the order of attachment “no property or effects found,” with a suggestion that the defendants had an interest in certain real estate in the county. Under the 53d section of justices’ act (S. & C. 780), the justice certified the proceedings to the Court of Common Pleas, in which court, where the ground for the attachment is non-residence, the affidavit must show that the defendant ■is “ a non-resident of the state.” S. & 8. 549. An order of ■attachment was issued by the clerk of the Court of Common Pleas, without the filing of an additional affidavit in that court, under which the lands of the defendants were ■seized. The defendants moved to discharge the attachment on the ground that the order of attachment had been -illegally issued. The court overruled the motion, and the defendants excepted. Without awaiting a final judgment, the defendants (plaintiffs here), took the case to the District Court on error, the only assignment being, that the Court of Common Pleas erred in overruling the motion to •discharge the attachment. The District Court affirmed the ruling of the Court of Common Pleas, which affirmance is assigned for error here.
    
      J. Win. Baldwin, and Sutton $ Thomas, and A. W. Krumm, for the motion:
    The statutes relating to this case are 8. & S. 420; lb. 549 ; Justices’ Code, S. & C. Stat. 780, sec. 53; sec. 70 of the Code ; Code, sec. 191,192, 55, 193.
    The jurisdiction of the Common Pleas in this case was not appellate, but original. Van Cleve v. Wilson, 2 Ohio, '202; Humphrey v. Wood, Wright, 566.
    And there should have been filed in that court an additional affidavit, to the effect that the defendant was a nonresident of the State.
    
      
      Swan § Moore, contra,
    insisted that the Common Pleas has jurisdiction of the case on the papers filed before the justice and the transcript, by the terms of the statute (S- & C. 780, sec. 53), and that the filing of an additional affidavit that the defendant was a non-resident of the state, was unnecessary.
   By the Court.

An affidavit in attachment, stating as the sole ground for attachment that the defendant is a “ non-resident of the county,” made before a justice of the peace, in a case subsequently certified to the Court of Common Pleas under the 53d section of the justices’ act, is not •sufficient to authorize the issuing of an order of attachment in the Court of Common Pleas; in which court, an order of attachment on the ground of non-residence can issue only when it is shown that the defendant is a “ nonresident of the state.”

Motion granted, judgments of the District Court and Court of Common Pleas reversed, and attachment discharged.  