Opinion by

. There was no evidence conducing to show that the appellees were actuated by malice, and that they sued out the attachment without probable cause. Appellant was indebted to them at the time they sued it out, and was a non-resident of the state of Ohio which, by the law of that state, as the proof shows, constituted a *130ground for an attachment; consequently Instruction No. 2 asked for by appellant was properly overruled.

The judgment rendered in favor of appellees against appellant in the Court of Common Pleas for Hamilton County, Ohio, appears to have been in the nature of a judgment in rem and not a personal judgment. And for that reason, if for no other, Instruction No. 3 could not have been given.

It is conclusively shown that the Common Pleas Court of Hamilton County, Ohio, had no jurisdiction as to the person of appellant, no process was actually served on him, nor did he enter his appearance and respond to the petition; he was not, therefore, subject to a judgment of the court in personam. And, although a personal judgment may have been sought in the petition, and one in form rendered by the court, still such judgment, where the record shows that there was no actuál service of process, nor personal appearance cannot be the foundation of an action in this state.

As no errors are perceived in giving or in overruling instructions, and the verdict is sustained by the weight of evidence, the judgment must be affirmed.