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Superior Court of Cincinnati.

*

What is meant by the words “authorized agents or distributors of defendant's product?" 3. What were "the provisions and conditions of the agreement” on the plaintiff's part referred to in the petition ?

Taking the second branch of the motion first, it is my judgment that this part of the motion should be granted. While it may not be material in the least to the controversy between the parties, yet for the court to get an intelligent understanding of the subject of the controversy it is always proper that explanatory averments should be made, by way of inducement, of matters connected with the subject of controversy that otherwise would be left vague and uncertain.

2. As to the first branch of the motion, in reference to the phrase, among other things,” it is my judgment that those words ought to be stricken out, as surplusage and immaterial,

While a plaintiff must state the contract sued on, at least so much thereof as embraces the defendant's promise, truly and correctly, yet “it is sufficient to state those parts of it whereof a breach is complained, or in other words, to show so much of the terms beneficial to the plaintiff in a contract, as constitutes the point for the failure of which he sues ; and

it is not necessary or proper to set out other parts not qualifying or varying in any respect the material parts above mentioned.” 1 Chitty on pl., * 311. Now, the court cannot take judicial notice of what the terms and conditions of the contract really are, save as disclosed by the petition, and in the first instance, when the question is presented by a motion of this kind, which is in the nature of a special demurrer, must assume that the substance of the contract, at least so much of the contract as is beneficial to plaintiff, is as stated by him in his declaration, and that without any qualification or condition. The plaintiff has picked out what he judges he is entitled to recover on, and we must presume for the purpose of the motion that he has judged rightly. The statement of additional matter would be needless prolix. ity, and add nothing to the cause of action.

While it may turn out that he has not stated the contract correctlythat is, incorporated all that was essential to his right to recover on the particular contract--the question as to that can not be made by motion, or speciai demurrer. That is matter of substance, and is reached by tendering a proper issue of fact, and, when the proof comes on, the plaintiff would fail by reason of a variance between his contract as stated and the evidence thereof he offers. Nevertheless, as the words complained of tend to raise an uncertainty, they ought to be stricken out.

3. As to the third branch of the motion involving the averment generally of the performance by plaintiff of the conditions and agreements on his part, I wish to refer to my decision in the case of Lauer, administratrix, v. Equitable Life Assurance Co., 10 Dec., 397, decided concurrently with this case, in which I made a careful examination of

Block v. Distilling Co.

this point, and in which I came to the conclusion that when performance of conditions is pleaded in actions on contract, the averments thereof are intended, however general in their nature, to refer alone to such conditions as are stated in the pleading as a part of the defendant's contract, or necessarily implied from the nature of the particular contract sued on. In other words, that so much of the petition or declaration as is devoted to averment of performance of conditions precedent is not by way of explication of the terms and conditions of the contract, which must be independently set forth in the petitios or declaration when the contract itself is stated, either expressly or by way of necessary inference, but are averments which are to show that the conditions of the contract, as they are stated or described, when the contract is set forth, have been fully complied with, and thus the obligation of the defendant has been fixed.

That was the rule at common law, where in pleading such performance it was incumbent upon the plaintiff to do it specifically—that is, to take each condition contained in the contract and show by his averments that he had performed them exactly and in accordance with the intent of the contract. Now, such performance could not be averred, unless the conditions had been previously averred, and that must be done when the contract or promise is stated. In other words, these two por. tions of the declaration or petition go together, the averments as to performance following as a necessary sequence to the statement of the contract, and, consequently, the conditions whose performance is averred must be, and can be, only those which form part of the contract or promise as stated. When a pleader avers generally that he has performed all the conditions on his part to be performed, that, read in connection with the contract as previously stated by him, means that he has performed all of the conditions set forth or required by the contract stated. As a consequence of this construction, no uncertainty as to the existence of other conditions can arise from the general averment permitted by the code, for in its effect it is to be limited to the contract described in the petition.

Of course, as said in the Lauer cases, there may be conditions over and above those set forth in the statement of contract as made by the pleader; but, if that turn out so, then the delinquency is one, not of form, but of substance; the plaintiff simply has not stated the contract truly and correctly; and the defendant meets that by tendering an issue on that fact. If the defendant is right, then plaintiff is sure to run up against a variance.

For these reasons, which are elaborated in the Lauer cases, this branch of the motion will be denied.

William Worthington, for the motion.
Thornton M. Hinkle and Frederick W. Hinkle, contra.

Hamilton Common Pleas.

ATTACHMENT AND GARNISHMENT.

[Hamilton Common Pleas, March, 1900. ]

* W. E. CALDWELL Co. v. BURTON LUMBER Co. 1. ATTACHMENT AND GARNISHMENT-JUDGMENT.

In an attachment case under sec 5551, Rev. Stat., where the defendant is served

by publication and the garnishee answers that he does not owe, although the existence of a res does not affirmatively appear, it such disclosure is unsatisfactory to the plaintif, the latter is entitled upon default to a judgment for the entire amount due, in order that he may subsequently pursue such garnishee in an action under sec. 5553, Rev. Stat., which actions, though separate

in form, are on the doctrine of relation, to be treated as one proceeding. 2. CONDITIONAL APPEARANCE AMOUNTING TO VOLUNTARY APPEARANCE.

The appearance of the defendant for the sole purpose of objecting to the juris

diction of his person is not a voluntary appearance; but any step, such as an objection to the jurisdiction of the subject-matter, or the authority of the court to enter the judgment (which are not well founded) or an objection to the finding of a res, is a waiver of the jurisdiction of the person, whether

intended or not, and constitutes a voluntary appearance. 3. Court MAY PERMIT WITHDRAWAL OF APPEARANCE.

There is a presumption that an attorney in good standing bas authority to

enter the appearance of his client. The court has, however, a discretionary power to permit an attorney to withdraw an entry of appearance made

without authority or under a misapprehension of his authority. PFLEGER, J.

Plaintiff sued the defendant, a non-resident, in attachment and served a garnishee. No service was had on the defendant except by publication ; no real estate or chattels were attached and the garnishee answered that he was not indebted in any sum. The plaintiff demanded judgment by default against the defendant for the full amount claimed in the petition, although no jurisdiction of the person of the defendant was had or a res belonging to the defendant appeared, in order that he might pursue the garnishee, because his disclosure was not satisfactory to the plaintiff, as provided under sec. 5551, Rev. Stat.

Section 5553, Rev. Stat., provides that "final judgment shall not be rendered against the garnishee until the action against the defendant in attachment is determined." Local counsel appeared in behalf of defend. ant who claimed that he did not enter appearance for his client except only for the purpose of questioning the jurisdiction of the court, and insisted that no judgment could be rendered, because it did not appear that the garnishee had any property or money belonging to the defendant.

Counsel for defendant cited Myers v. Smith, 29 Ohio St., 120 (1877), which holds that“ if the proceeding is purely in rem and the jurisdiction depends on property of the defendant subject to garnishment being in the hands of the garnishees, the fact that such property exists must be found before the suit in attachment can proceed to final judgment." * Note by the

This case was reargued on the findings made in the first syllabus, upon the court's owu motion, and has not as yet been determined.

Caldwell Co. v. Lumber Co.

Plaintiff's counsel answered that this was mere obiter ; that in 1855 the superior court, in general term, in Vallette v. Trust Co., 2 Handy, page 1, held that the plaintiff is not postponed in obtaining his judgment in such a case until by the answer of the garnishees or otherwise it should appear that they or some of them are indebted to the defendant; that the affidavit of the plaintiff that there was property or debts to be appropriated to the payment of his claim must be considered as sufficient, and when he has completed a service by publication and the time for answer has expired, and he has offered the proof required, in the absence of any defense, he must be considered as entitled to a judgment for the amount.

This decision, it is claimed, should not supersede the decision in Myers v. S nith, supra, rendered by the Supreme Court twenty-two years thereafter.

Plaintiff's counsel also cite Whitman v. Keith, 18 Ohio St., 134 ; Pope v. Insurance Co., 24 Ohio St., 480, and Squair v. Shea, 26 Ohio St. 645, as indirectly in point in that each indicated from the statements of the cases that judgments for the full amounts claimed by the plaintiffs in attachment were rendered. The last case seems to bear this out. They were all lecided on other points and can not aid in the determination here. In Bark v. Railway Co. 21 O. S. 221 it was held proper for the court to hear testimony to determwe whether there was property.

Counsel on each side claims that the actual practice has been according to his construction. The question has long been a mooted one. An examination of authorities outside of Ohio seems to support the contention of the defendant. These, however, are based upon statutes other than our own. The argument seems reasonable that where there is no jurisdiction of the person nor of the res, the authority of the court is ended. A brief relerence to them may be made.

The fact of the indebtedness from the garnishee to the defendant should be conclusively shown to authorize the court to act and render a conditional judgment. When the garnishee failed to appear or answer, it was his privilege to be again called into court, and until an indebtedness is disclosed the court can not take jurisdiction to render a judgment to sustain subsequent proceedings against the garnishee, because the same are null and void. Hagerty v. Ward, 25 Texas, 145 ; Spears v. Chapman, 43 Mich., 541. Unless the liability of the garnishee is clear and unqualified, as shown by his disclosure, no judgment can be rendered. Smith v. Holland, 81 Mich., 471 ; Ruehl v. Ruoft, 113 Mich., 294. The effect of the gurnishee's answer, that he is not indebted is to stop further proceedings against the defendant, because the court has nothing upon which it can base jurisdiction to proceed. Shinn on Attachment, sec. 642 (e). The action must fail and all proceedings under it are wholly void. Ib., sec. 680. If, however, the garnishee admits an indebtedness

It to the principal defendant, the court has jurisdiction of the res and may,

Hamilton Common Pleas.

in effect, render judgment against the defendant to the extent of the value thereof and also against the garnishee for the same. Ib., sec. 681.

In some courts, by the rules of practice, a judgment in form is entered against the defendant for the amount by the plaintiff proven to be due, and a judgment with execution is awarded against the garnishee to turn over the funds in his hands in any amount not exceeding the amount of the debt and costs. Shinn on Attachment, sec. 681. Judgment nisi must be for a specific sum in numero. Dickerson y. Walker, 1 Ala., 48; 21 Ala., 556; Shinn on Attachment, sec. 683. The publication may be sufficient to enable the plaintiff to obtain judgment which he can enforce by sale of the property, but for any other purpose such judgment would be ineffectual. Cooley's Coust. Lim., sec. 404.

A construction of our statute is therefore necessary. That final judgment shall not be rendered against the garnishee until the action against the defendant in the attachment is determined, applies under sec. 5551, Rev. Stat., to a garnishee who fails to appear anu answer, as well as to one who appears and answers, and his disclosure is not satisfactory to plaintiff (as for instance, where he denies any indebtedness, or admits less than he is actually owing), and to a garnishee who fails to comply with the order of the court to deliver the property or pay the money into court.

If, under the authorities cited and the decision of Myers v. Smith, supra, the jurisdiction of the court depends upon the affirmative finding that some property exists upon which to base the judgment in an attachment case, such finding could not be had if the garnishee either failed to appear and answer or if he denied all indebtedness until the issues were tried in the auxiliary suit against the garnishee, which under the code. in point of time, must be subsequent to the finding and judgment in the attachment case. The actions are separate in form yet they are so closely related and dependant upon each other as to be practically one action and treated as such. And, to illustrate, in the event the garnishee admitted owing but $5.00, when it could be shown in the action against him that he owed $500, unless the judgment were for the full amount claimed by the plaintiff, it would be necessary for the plaintiff to split his claims and judgment to $5.00 and should he proceed against the garnishee on such a judgment, he could not recover more than the the garnishee. Although both actions can proceed at the same time, amount of such judgment even though in the suit against the garnishee $500 appeared to be due from the plaintiff would not have time to return to the original action in attachment, it still pending, or bring a new one for the difference in time to obtain the benefit of the amount fouvd due in the auxiliary suit; nor could there be but one trial against the garnishee, and this probably would be considered res adjudicata. More difficult, however, would be the situation if the garnishee failed to appear and answer, or, as in the case at bar, the garnishee denied any indebtedness,

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