The record discloses that defendants in their affidavits admitted they were nonresidents of this state. The other averments in their affidavits traversed the allegations of plaintiff's petition and included a denial that defendants were associated together in relation to the transactions referred to in plaintiff's petition and further denials by both defendants that defendant Goebel, either individually or as an associate of defendant Lee, had ever done business with or promised to pay plaintiff for shipments of coal.
Plaintiff took the position that these averments in defendants' affidavits related to the merits of the *Page 25 principal action and ought not to be considered in a hearing of a motion to discharge the attachment where defendants appeared specially and solely for the purpose of the motion. There is abundant authority to support this position. 4 American Jurisprudence, 934, Section 635; 7 Corpus Juris Secundum, 606, Section 416; Asamen v. Thompson, 55 Cal.App.2d 657,131 P.2d 839; Singer v. Shapiro, 133 N. J. Law, 133,43 A.2d 12; Aurbach v. Grand National Pictures, Limited, 176 N. Y. Misc., 1031, 29 N. Y. Supp. (2d), 747, affirmed without opinion263 App. Div. 712, 31 N. Y. Supp. (2d), 670; Republic TruckSales Corp. v. Peak, 194 Cal. 492, 229 P. 331.
There was no indication by the trial court that its consideration of the affidavits of defendants was limited to a determination whether plaintiff could sustain his claim of contractual relations with both defendants as joint obligors. Plaintiff did not testify in support of the allegations of his petition and affidavit in attachment that were traversed by the affidavits of defendants. However, plaintiff did offer to submit to interrogation by the trial court. The court declined to examine him. In view of these circumstances, the application herein of the rule laid down in Coston v. Paige, 9 Ohio St. 397, Seville v. Wagner, 46 Ohio St. 52, 18 N.E. 430, andMorelli v. Thombs, 35 Ohio App. 233, 172 N.E. 381, is unwarranted.
It is settled law that the attachment statutes of Ohio and the procedure incident thereto are of a remedial nature and must be construed liberally for the benefit of the attaching party.Northwestern Yeast Co. v. Broutin, 133 F.2d 628; Weirick v.Mansfield Lumber Co., 96 Ohio St. 386, 117 N.E. 362; Hart v.Andrews, 103 Ohio St. 218, 132 N.E. 846; Smith v. Buck,119 Ohio St. 101, 162 N.E. 382, 61 A. L. R., 1343.
Assuming this court has jurisdiction on appeal, the *Page 26 attachment ought to be sustained and the cause remanded to the Common Pleas Court for further proceedings on the motion to discharge the attachment so as to enable the trial court to inquire and the plaintiff to testify in respect of his alleged contractual relations with both defendants jointly.
I am of the opinion, also, that upon a hearing of a motion to discharge the attachment under the circumstances disclosed by the record in this case, the plaintiff is not required to sustain the burden of proof on the issue of the alleged contract with both defendants. If, upon a hearing of the motion, the court is satisfied that plaintiff's claim is fictitious or not supported by credible evidence, the attachment ought to be discharged. However, if plaintiff offers evidence that establishes a prima facie case and a bona fide dispute between the parties on such issue, the attachment ought to be sustained. Granting that a joint contract is a condition qualifying plaintiff's right to an attachment against the property of both defendants as nonresidents of the state, it is also a matter that relates directly to the merits of the main action and plaintiff is entitled to a determination thereof, upon the weight of the evidence, in a trial by a jury.
PHILLIPS, J., of the Seventh Appellate District, sitting by designation in the Eighth Appellate District.