Sleet v. Williams

Ohio Supreme Court
Sleet v. Williams, 21 Ohio St. (N.S.) 82 (Ohio 1871)
Day, McIlvaine, Scott, Welch, White

Sleet v. Williams

Opinion of the Court

Welch, J.

We think the court erred in holding this affidavit insufficient. It substantially conforms to the stat*86utory requisitions. These requisitions are, not that the affidavit shall be in any prescribed form of words, but that it shall be an affidavit “showing” the existence of certain facts. None of the statutory requirements are wanting in this affidavit, unless it be the statement of the plaintiff’s belief that he ought to recover the sum of $1,189.00. In place of this, we have the positive statement that that sum is due to him from the defendant, upon the claim. We think the latter statement fairly includes and implies the former. One can hardly have the knowledge that money is justly due to him upon a contract, without the belief that he ought to recover it from the debtor.

But counsel say that there was no error in the order of the court discharging the attachment, because, however perfect in form the affidavit may be, it is shown to be false. The answer to this is, that there is no bill of exceptions in the case, setting forth the affidavits read in evidence, or the finding of the court thereon. We cannot notice these affidavits. They are merely introduced into the record by the clerk. They may constitute all the evidence heard upon the motion, and they may, so far as we can officially know, constitute only a part of it.

Judgment reversed, and cause remanded for further proceedings.

Scott, C. J., and White, Day and McIlvaine, JJ., concurred.

Reference

Full Case Name
James Sleet v. Bell Williams
Status
Published