
    John Hoover v. Elizabeth H. Gibson.
    •Under chapter 3, title 8, of the code, an attachment can not be issued against the property of a married woman in an action to charge her separate estate, and in which no personal money judgment can be rendered against her.
    Motion for leave to file a petition in error to reverse the District Court of Tuscarawas county.
    The original action was brought in the Court of Common Pleas, by the plaintiff in error, against the defendant :in error and Isaac N. Gibson and Charles N. Gibson, on three several promissory notes, executed by the defendants to the plaintiff, and dated August 8, 1873; that is to say: One note for $500, payable in six months ;• another for $900, payable in nine months, and the other for $950, payable in one year from date, with interest, etc. It was alleged in the ■petition that the defendant, Elizabeth H. Gibson, at the ¡time of making said notes, was a married woman, the wife ••of said Isaac N. and the mother of said Charles N. Gibson, and was possessed of a separate estate, consisting of certain real property of the value of $3,000, and of certain goods ¡and chattels of the value of $3,500; that neither Isaac N. ••nor Charles N. Gibson was possessed of any property subject to levy and sale on execution; that the consideration •of said notes was a stock of groceries sold by the plaintiff' to Isaac N. and Charles N. by and with the knowledge and -consent of Elizabeth; that at the time of said sale and the ¡execution of said notes, it was understood and agreed by ■.and between the plaintiff' and Elizabeth that the sale was made upon the credit and liability of her separate property, aud that she intended and did charge her separate estate with the payment thereof. It is also alleged that neither of said notes was then due, but that said Elizabeth had, ¡since the making thereof, disposed of her separate personal property, with the fraudulent intent to cheat and defraud ¡her creditors, etc.; and that said Isaac and Charles had also sold and disposed of their, property with like intent, whereby a right of action had accrued to the plaintiff to have an order of attachment issued against the property of the defendants, etc. The prayer of the petition was for judgment against Isaac and Charles, from time to time, as the notes might mature, and for an account against Elizabeth and an order subjecting her separate estate to the payment of the account, etc.
    An order of attachment was granted and issued under section 230 et seq. of the code, and was levied upon the separate property of the defendant in error.
    On motion and affidavits, the .attachment was afterward discharged by the judge of said court, who signed a bill of exceptions containing all the testimony.
    The order discharging the attachment was afterward, on petition in error, affirmed by the District Court, and this proceeding is prosecuted, to reverse the judgment of affirmance, etc.
    
      A. L. Neely, for plaintiff in error:
    An order of attachment may properly be issued in an action against a married woman on her promissory note, in a ease like this, in which a personal money judgment could not be ren dered.
    Section 230 of the code, under favor of which the order of attachment in this case was allowed, provides, in the first paragraph, that “ where a debtor has sold, conveyed, or otherwise disposed of his property with the fraudulent intent. to cheat or defraud his creditors, or to hinder or delay them in the collection of their debts,” the creditor may-have an order of attachment against ’the property of the-debtor before the debt is due.
    Section 191 (S. & C. 1002) authorizes an attachment in a. “ civil action for the recovery of money.”
    This is a civil action for the recovery of money, although: a persona] judgment is not sought. The code defines a judgment to be the final determination of the rights of the.parties in an action. Sec. 370, S. & C. 1048.
    
      Under the code of civil procedure, orders of attachment are allowed in equitable actions. Ward v. Howard, 12 Ohio St. 162; Goble v. Howard, Ib. 165.
    In Carson v. Ball, 47 Barb. 452, it was held that “ the word ‘action,’ as used in the chapter of the code (sec. 222, Code of New York), relating to attachments, includes all civil actions.”
    
      F. Douthitt, for defendant in error:
    I. No attachment should have issued in the case, as the action was purely an action in equity brought to charge certain alleged equitable indebtedness upon the separate property of a married woman, and was in no sense an action for the recovery of money within the meaning and provisions of seótion 191 of the code.
    Under the practice before the introduction of the code, it was well settled that no attachment could be sustained, except on actions at law. Drake on Attachment (3 ed.), sec. 4, p. 5 ; sec. 9, p. 10.
    An action may be brought for certain specific relief, and also for a recovery of money. In such action, so far as the claim is for the recovery of money, an attachment may issue. The cases cited by counsel for plaintiff only go to this extent. But no ease has yet gone to the extent that an attachment can issue, where a money judgment can not be rendered.
    II. Attachment can not properly issue in any action in which an execution can not issue after judgment in the same case. Ward v. Howard, 12 Ohio St. 160; sec. 221 of Code.
   McIlvaine, J.

Can an order of attachment properly issue against the property of a married woman, in an action to charge her sepai’ate estate with the payment of her general engagements, and in which a personal money judgment Is not sought, and can not be rendered against her?

The remedy by-attachment obtains solely under and by virtue of the provisions of chapter 3, title 8, of the code of civil procedure. Section 191 provides that “the plaintiff, in a civil action for the recovery of money, may, at or after the commencement thereof, have an attachment against the property of- the defendant,” and upon the grounds therein stated. Section 280, under favor of which the order of attachment in this case was sought to be enforced, provides that “ a creditor may bring an action on his claim before it is due, and have an attachment against the property of his debtor,” where the debtor has sold his property with the fraudulent intent, etc. This section authorizes a resort to the remedy by attachment before the claim is due, but it does not extend the remedy to an actiou or class of actions other than those named in section 191, to wit, actions “ for the recovery of money.” On the other hand, it limits the use of this remedy, in actions on claims not due, to such as are founded upon or sound in contract, as is clearly manifested by the necessary relation of “creditor and debtor” between the parties; while section 191 extends the remedy to all actions “ for the recovery of money,” whether sounding in contract or in tort. The question to be determined then is, was the action below, in so far as it related to the defendant in error, “ for the recovery of money,” within the meaning of section 191 ?

If the class of actions embraced by the descriptive words of this section be limited, as it unquestionably is in section 263, under the same description, there could be no doubt as to the proper answer to the question. It would be claimed by no one that an issue of fact joined between the plaintiff and Mrs. Gibson, in the court below, would have been triable, as a matter of right, by a jury. It has been held, however, that the remedy by attachment may be had, under section 191, in equitable actions for the recovery of money — that is, in actions for specific relief and also for the recovery of money. Goble v. Howard, 12 Ohio St. 165.

It is claimed that, under the doctrine of that case, the attachment against Mrs. Gibson was properly issued. We do not think so. The decision in that case was based on "the ground that the plaintiff had a right to demand a personal judgment against the defendant for the money found to be due him upon a statement of the partnership accounts. 'The reasoning of the court in that case will not support the claim made by the plaintiff in error in this case. , Here, it is conceded, no personal judgment could have been rendered against the defendant in error. The only judgment allowable in such case, is one against her separate property — a judgment which can not be enforced or satisfied by process of execution, but only through the aid of a receiver.

Without, therefore, questioning the soundness of the ■rule, that attachment may issue in equitable actions, wherein personal money judgments may be rendered against the defendant, we are of opinion that, where no :such judgment can be rendered, the action is not “ for the recovery of money” within the meaning of section 191 of the code.

Motion overruled.

Day, C. J., White and Rex, JJ., concurring. Welch, <T., ■not sitting.  