
    Lampert, Appellant, v. Conway, Appellee. Lampert, Appellant, v. Hood, Appellee.
    (Decided January 4, 1940.)
    
      Mr. T. A. Billingsley, for appellant.
    
      Mr. Wilbur D. Spidel, for appellees.
   Geiger, J.

These two cases involve the same question and will he decided together. The cases had their origin in the court of a justice of the peace of Green-ville township, Darke county, Ohio. The bills of particulars are identical except so far as the amount involved is concerned, and the party defendant.

It is alleged that on May 4, 1939, plaintiff purchased from the defendants named certain sows; that’ these hogs had been exposed to cholera and other diseases, all of which was unknown to plaintiff but known to the defendants; that by reason of this infection the hogs became ill and communicated the disease to other hogs owned by plaintiff and by reason thereof veterinarian expenses were incurred; that other hogs on the plaintiff’s place became infected and either died or were so diseased as to be worthless. Plaintiff in each case says that he is entitled to damages as prayed for and asks judgment in the sum of $217.63 against Hood and $232.23 against Conway,

In each case an affidavit in attachment was filed, stating the amount claimed which plaintiff should recover and that there was property of the defendant about to be attached, on the ground that the defendant was not a resident of the county of Darke, and on other grounds set out in the printed form of the affidavit, but it is agreed that the nonresident provision of the statute is the one upon which plaintiff relies.

The amount in which each defendant is indebted to the plaintiff is alleged to be for “damages, injuries and medical services incurred.” The property of each defendant was seized by the constable and appraised. Each defendant filed a motion to dismiss the attachment on six different grounds, the first of which is the only one relied upon, namely, that the attachment was issued unlawfully in the court of the justice of the peace on a claim for damages, it not being within the province and jurisdiction of the justice of the peace to issue a writ of attachment on a claim for damages.

Motions were also filed to quash summons for the reasons therein stated.

The justice of the peace sustained the motions to dismiss the attachments and the causes were appealed to the Court of Common Pleas and there heard after it was agreed by counsel for both plaintiff and defendants that the sole ground of attachment relied upon was that the defendants were nonresidents of the county and it was further agreed that the defendants were nonresidents. The court found that the affidavit for attachment and the bill of particulars disclosed that the claim of the plaintiff was one for damages arising from a tort, that the motions to discharge the attachments were well taken and that each affidavit was defective in that it stated that the claim of the plaintiff is one for damages when the ground for attachment relied upon by the plaintiff is that the defendants were nonresidents. The court ordered that the attachments be discharged and the causes remanded to the justice of the peace.

The finding of the court is embodied in an entry from which the appeal is taken.

.The assignment of errors is to the effect that (1) there was error in affirming the judgments of the justice, (2) there was error in.the conclusion that the affidavits were not sufficient to comply with Section 30253, General Code, and (3) there was error in dismissing the appeals from the docket of the justice of the peace.

The questions involved have given rise to an interesting discussion by counsel representing the plaintiff and defendants.

■ Plaintiff points out that in each of the bills of particulars the claim is made that the plaintiff purchased hogs which were infected, thereby causing him not only loss of the purchase price but incidental damages.

Counsel calls our attention to Section 13373, General Code, a penal statute relating to domestic animals, which provides, in substance, that whoever transports, within this state, a hog, infected with cholera shall be punished as therein provided and “be liable for all damages resulting from such disease thereby. ’ ’

Counsel asserts that this section creates a civil liability, and it is claimed that the courts of Ohio have held that where the statute creates a civil liability the same furnishes a basis for attachment upon the ground of nonresidence. Counsel cites cases supporting his position. The first case is Harlan v. Capital Investment Co., 11 N. P. (N. S.), 492, 22 O. D. (N. P.), 12, where it is held:

“An attachment will lie against a foreign corporation in an action for recovery of money lost in gaming.”

Baker v. Morehead & Co., 7 N. P. (N. S.), 384, 19 O. D. (N. P.), 230, holds that an order for attachment without bond will lie against the defendant foreign corporation in an action for the recovery of money lost in the scheme of chance commonly called a “bucket shop.” The court in deciding the case alludes to a number of interesting decisions in reference to what constitutes contracts, whether they be constructive, express or implied and holds that the loss of money through the operation of a “bucket shop’’ falls within the definition of a constructive contract and authorizes the loser to sue ex contractu, and after discussing the various cases, overrules the motion to dismiss the attachment on the ground that the claim is not founded upon a contract.

Northern Natl. Bank v. Maumee Rolling Mill Co., 2 N. P., 260, 2 O. D. (N. P.), 67, decided in 1894, holds that an action by a creditor of an insolvent corporation to enforce the statutory liability of a stockholder for the debts of the corporation is an action arising upon contract within the meaning of the statute relating to attachments against the property of nonresidents. The court, after examining the question in detail in reference to the liability of a stockholder of an insolvent corporation, states “that the action is for money, and that the claim is upon a contract liability, and therefore that an attachment may properly be issued.”

Cleveland Gas & Electric Fixture Co. v. Mount Gilead Electric Light & Power Co., 6 N. P., 218, 8 O. D. (N. P.), 134, is directly in conflict with the last cited case and holds that by the word “contract” as used in the attachment statutes is meant the general understanding and definition of contract in law, which is an agreement between two or more parties to do or not to do a certain thing. An attachment can not be issued on the statutory liability of a nonresident in an insolvent corporation. The judge in his opinion directly challenges the holding of the court in Bank v. Rolling Mill Co., supra. The Supreme Court had an opportunity to pass upon this mooted question in Hough v. Dayton Mfg. Co., 66 Ohio St., 427, 64 N. E., 521, but decided the case on another issue, thus declining to pass upon the question which had been in controversy in the courts.

Several other cases are referred to along this line which we have examined. Wise v. Martin, 7 N. P., 660, 5 O. D. (N. P.), 550, involved the recovery of money lost in the operation of a slot machine.

Section 13373, General Code, penalizes “whoever transports a hog within this state, infected with cholera.”

We are of the opinion that this section and the civil penalty therein provided is not available for supplying the necessary allegation that the claim is a debt arising upon contract.

In the justice’s statute (Section 10253, General Code), the affidavit must show that the claim is a debt arising on contract. In Section 11819, General Code (relating to procedure in the Common Pleas Court) the attachment shall not be granted on the ground of nonresidence for any claim other than a debt arising upon contract, judgment or decree. The affidavit filed before the justice must show that the claim arises upon a contract, while Section 11819, General Code, does not definitely provide that this fact must appear in the affidavit.

What is a contract? See Columbus, H. V. & T. Ry. Co. v. Gaffney, 65 Ohio St., 104, 61 N. E., 152.

In Weirick v. Mansfield Lumber Co., 96 Ohio St., 386, 117 N. E., 362, it is stated in the first and second paragraphs of the syllabus:

“1. Remedial statutes require a liberal construction and a liberal application to the facts of any given case.

“2. Statutes pertaining to attachment and the procedure incident thereto are of a remedial nature.” , Section 8395, General Code, a part of the Uniform Sales Act, provides that when a buyer, makes known to the seller the particular purpose for which the goods are required and relies on the seller, whether he be the grower or manufacturer, there is an implied warranty that the goods shall be reasonably fit for such purpose. An implied warranty or condition as to quality or fitness may be annexed by the usage of trade.

Pope v. Hibernia Ins. Co., 24 Ohio St., 481, holds in the first paragraph of the syllabus:

“Jurisdiction of a defendant can not be acquired by proceedings in attachment, on the ground of his nonresidence in the state, when the petition in the case, and the affidavit for attachment, fail to show that the cause of action is one arising upon contract, judgment, or decree.”

Adkins v. Newcomer, 9 N. P. (N. S.), 305, 20 O. D. (N. P.), 121, holds in the second paragraph of the syllabus:

“Nonresidence is made a ground for attachment under Section 6489 only when the claim is a debt or demand arising on a contract, * * *.”

Whatever may be the difference between the affidavit called for by Section 10253, General Code, and Section 11819, General Code, relating to attachments in the Common Pleas Court, Section 10253, General Code, provides definitely and specifically that the affidavit must show in case of attachment for non-residence “that the claim against such defendant or said defendants is a debt or demand, arising upon contract, judgment or decree. ’ ’ The affidavits in this case show that the debt is “for damages, injuries and medical' services incurred.” This falls short of a showing that the debt arose upon contract as required by the statute.

The judgments of the court below are affirmed.

Judgments affirmed.

Hornbeck, P. J. and Barnes, J., concur.  