
    Bingham et al. v. Hill.
    A summons and an order for the delivery of specific personal property were issued, upon a petition, and a single affidavit, duly sworn to, annexed, which, in addition to a verification of the petition, contained allegations sufficient to entitle the party to such an order. On error to reverse a final judgment founded on such petition and order, Held, that there is no substantial error to the prejudice of the other party, which will warrant a reversal, the error being one of form and not of substance.
    Error to the District Court of Cuyahoga county.
    The several grounds assigned for a reversal of this judgment have been considered, but only one of them is reserved for report.
    As to that, the facts are these : Harriet E. Hill filed her petition for the recovery of specific personal property, and for damages for its detention. Instead of a verification to the petition, and a separate affidavit to obtain the order of delivery, there was but one affidavit. In it there is a statement that the facts stated in the petition are true and an additional statement of facts which is required by the statute to obtain an order of delivery. It was duly sworn to and attested.
    On this a summons and order of delivery was issued and served. The property was seized and delivered to the plaintiff on her complying with the statute.
    The defendants made a motion to set aside the service of process and strike the petition from the files for two reasons:
    1. There was no petition verified as required by law.
    2. There was no affidavit for replevin.
    This motion was overruled and exception was taken. A judgment was rendered for the plaintiff. To reverse the judgment of the district court affirming this judgment is the case now here.
    
      Mix, Noble & White, for plaintiff in error.
    
      Groot & Blcmdm,, for defendants in error.
   Johnson, J.

I. As to the verification of the petition. It is in due form, and properly sworn to. If it is defective, it is because the affidavit, in addition to the proper averment, as a verification, contains additional allegations to entitle the affiant to an order of delivery also.

As a verification this additional matter may be regarded as surplusage. It does not vitiate.

II. It is said there is no affidavit which entitles the plaintiff to -an order of delivery. It is conceded that the affidavit filed, contains all the necessary statements to authorize the issue of an order of delivery, but the claim is, there should be a separate affidavit, and that one affidavit, which is good both as a verification and for an order of delivery, renders the process issued thereon void. This is the better practice, and a departure should not be encouraged. Here, however, the petition is good in form and substance, and the affidavit contains all the facts, and is in due form necessary to a verification, and also such additional facts as are required to entitle the plaintiff to an order of delivery. It is properly sworn to. This departure from the better practice is in a matter of form and not of substance. There is no substantial error to the prejudice of the plaintiff in error, which will authorize or warrant a reversal Rev. Stat. § 5115.

Judgment affirmed.  