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Schoppenhast v. Bollman and Wife.

the statute prescribing the mode of proceeding in attachments.

Before examining the record upon the points in controversy, we will state some propositions in relation thereto, which appear to be settled:

1. Where the defendant, in the main action, is personally served with process, the attachment is not the foundation of the jurisdiction, but is a conservatory measure allowed to the plaintiff for the purpose of securing his demand. Drake on Att., 692.

2. Where the proceeding is ex parte, without any service upon or appearance by the defendant, jurisdiction is acquired over him through an attachment of his property. Id.

Upon the first proposition, if the attachment illegally issues, it is nevertheless the privilege of the defendant alone to take advantage of it.

In the second case, as the attachment is the basis of the jurisdiction, if it be issued without legal authority, the proceedings under it are void.

From these propositions it results that, where the defendant is personally before the Court the garnishee is not in a condition in which it is compulsory upon him to question the jurisdictional legality of the proceedings, or their regularity as to the defendant. But where the defendant is not personally before the Court, the garnishee is concerned, as to the main action, only in the question of jurisdiction. Where that has attached, his right to inquire into or interfere with such procedure is at an end; for all that he is interested in is, that the attachment proceedings against himself shall protect him in another suit. That they will do so though there be in them errors and irregularities, for which the defendant might obtain their reversal, there can be no doubt. 3 B. Mon. 502; 12 Ill. 358; 1 Iowa 86; 8 Blackf. 419.

He could not, therefore, reverse a judgment against him on

Schoppenhast v. Bollman and Wife.

account of mere irregularities in the main action. They effect only the defendant, and it is for him to take advantage of them or to inquire into the merits as between himself and the plaintiff. 9 Missouri, 421; 29 Alabama, 141; 1 Ind. 156; 14 Louisiana, 511.

It follows that a garnishee, to be entitled to the benefit of a payment made under a judgment against him as such, is not to be held responsible for the regularity of the proceedings in the suit in which he is garnished. 19 Alabama, 246; 3 Stewart, 326; 8 Blackf. 418.

One of the grounds for an attachment is, "that the defendant is secretly leaving the State with intent to defraud his creditors." 2 G. & H. 138. It is further provided that, "the plaintiff, or some person in his behalf, shall make an affidavit showing: 1st. The nature of the plaintiff's claim; 2d. That it is just; 3d. The amount which he believes the plaintiff ought to recover; 4th. That there exists in the action some one of the grounds for an attachment above enunciated." Id. 140.

The affidavit filed in the case under consideration was made by the plaintiff, and averred that he had a just and legal demand then due against the defendant, in two notes, for the sum of 325 dollars with the interest thereon; that defendant was about to leave, &c.

There was a complaint also filed on the two notes, giving copies of them. Afterwards, and before the trial, another note between the same parties fell due, and by an amendment was included in the complaint, and the judgment embraced the amount of all three of the notes. No additional affidavit was filed.

We are of opinion that, under the circumstances, the judgment in the attachment thus set out was not absolutely void, for this reason: The proceedings were irregular and said judgment perhaps erroneous, but such as the garnishee might regard in making payment, and such as he may rely upon in

Schoppenhast v. Bollman and Wife.

defence of this action upon said notes. But however this may be, there is another view which leads to the same result.

We are asked to say that the proceedings thus set forth are absolutely void, because this third note was thus included in the judgment.

This would be placing the whole defence upon the second paragraph of the answer; whereas the third paragraph was limited to this third note and shows that the same had been assigned by the present female plaintiff to a firm of which her husband was a member, and they assigned it to others, who sued the present appellant upon it, and he, in defence, set up the attachment proceedings now relied upon, as to all of said notes except a sum named, which had been tendered, and a reply in denial was filed; a trial had, and judgment for said sum so tendered. As to the third note, the judgment so rendered for said balance would, under the circumstances, whilst it remains in force, preclude another action upon the same note. However erroneous said judgment might be, yet in it the said note was emerged, on the facts shown.

As to the other two notes, the other paragraph of the answer sets up the attachment proceedings and payment as a garnishee, as a defence. We believe in that the defence was well made for the reasons heretofore given.

As to the question of notice of the pendency of the attachment proceedings, it is assumed in the brief of the appellee that three weeks publication, sixty days before, &c., was necessary, and that said time did not elapse before the institution of proceedings by one Hausman, and the term at which judgment was rendered, and that said proceedings were independent of the first proceedings in attachment, and not a claim filed thereunder.

There is no statute cited requiring sixty days publication, nor have we found any other than the general provision in reference to publication of notices; § 38, p. 63, 2 G. & H.;

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and that fixes the time at thirty days. We are also of opinion, from the whole record, that the proceedings by Hausman was for the purpose of becoming a party to the action, as provided in favor of any creditor. Id. p. 147. Such being the fact no notice, other than in that action was necessary. Per Curiam.-The judgment is reversed, with costs. Cause remanded.

N. B. & C. Taylor, for the appellant.
J. Caven, for the appellees.

THE STATE v. HAYS.

MARRIED WOMEN-CRIMINAL LAW AND PRACTICE.-The wearing apparel of a married woman, furnished by her husband as a marital duty, remains his personal property during his life, and he can sell it or give it away during that period, but she may retain such as she may have at his death as her paraphernalia; and an indictment, for the stealing of such apparel, during the husband's life, charging it to be the property of the wife, can not be sustained.

APPEAL from the Miami Circuit Court.

PERKINS, J.-Margaret Hays was indicted for stealing certain articles of clothing, such as dresses, &c., charged to be the property of Matilda Risinger.

The Court instructed the jury, that, if they found that the goods stolen were articles of wearing apparel of Matilda Risinger, and that she was, at the time of the theft, the wife of John Risinger, and said goods were simply provided for her by her husband, under the legal obligation of husbands to support their wives, and were not specially presented to her as a gift, then the goods were not her separate property, but

Reveal v. Conner et al.

were the property of her husband, and the indictment could not be supported, &c.

The instruction was right. The wearing apparel of a married woman, furnished by her husband as a marital duty, remains his personal property during his life, and he can sell it or give it away during that period, but she has a right to retain it after his death, as her paraphernalia. Bouvier's Dic. h. t.; Wharton's do. h. t., and authorities cited.

Per Curiam.-The judgment is affirmed, with costs.

Oscar B. Hord, Attorney General, and T. C. Whiteside, for the appellant.

REVEAL V. CONNER et al.

PLEADING PRACTICE.-The statute which requires, that "when any pleading is founded on a written instrument, or on account, the original, or a copy thereof, must be filed with the pleading," is imperative. 2 G. & H. 104, § 78. And, if a complaint is defective in this particular, it will be demurrable, and, if not demurred to, and a verdict is rendered thereon in favor of the plaintiff, yet judgment can not be rendered in his favor over a motion in arrest, and, if neither a demurrer nor a motion in arrest is interposed, still, the error will be available in this Court on appeal. 2 G. & H. 77, § 50; id. 81, § 54.

APPEAL from the Hamilton Common Pleas.

HANNA, J.-Suit against appellant and two others, charged as makers of a promissory note. Appellant answered in derial. Trial, finding and judgment for the plaintiffs, over a motion for a new trial and in arrest.

There is but one point made in the brief of appellant, and that is, that the judgment should have been arrested, because VOL. XXI.-19.

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