(concurring). The principal assignment of error is pointed to the ruling of the trial court in permitting respondents to amend their affidavit for attachment. We conclude from a review of all the authorities cited by both appellant and respondents, and such *203others as we have been able to examine, that the ruling of the trial court permitting plaintiffs to amend the affidavit for attachment should be sustained. (Tilton v. Cofield, 93 U. S. 163, and cases cited; Erstein v. Rothschild, 22 Fed. Rep. 61.) These cases contain a very able and conservative treatment of this question. (See also, Coston v. Paige, 9 Ohio St. 397; Wheeler v. Farmer, 38 Cal. 203.) In our opinion, the statute of this state authorizing amendment of pleadings or proceedings in civil actions (Code Civ. Proc., §§ 112-19) contemplates such affidavit as one of the proceedings in working out the remedial rights of a party, and that an amendment of the nature offered in this case should be permitted, especially where the court has acquired jurisdiction of defendant by personal service, and he is present, defending, as in the case at bar. The amendment in this instance was in relation to pleadable and controvertible facts (Code Civ. Proc., § 183) on which was predicated the right to an attachment process prior to the maturity of the debt sued on. Of course, in permitting an amendment of the affidavit by incorporating therein averment of facts for the first time, by which the other party might be taken by surprise, the court should grant such party proper time to controvert, and prepare to defend against such allegations. But in the case at bar defendant could not have been surprised or prejudiced by the amendment of the affidavit, inasmuch as the facts inserted therein by amendment had already been alleged in the complaint.
The assignment of error on the admission of the testimony of Gaines, to the effect that on or about May preceding the transaction in question, which was alleged to have taken place in October, Kleinschmidt stated to witness that defendant the Mady Clothing Company had commenced business “with a clean balance sheet,” cannot be sustained. Kleinschmidt is alleged in the complaint to have been a party to the alleged fraudulent scheme set forth, whereby the company was disposing of its effects for the purpose of hindering, delaying, and defrauding its creditors; and prior to the admission of said testimony, it was shown that, when the alleged conversation occurred, Kleinschmidt was an officer and stockholder in defendant the Mady Clothing Company. The objection was that the state*204ment made in that regard, and under the circumstances shown by Kleinschmidt, could not bind the defendant corporation. This is no doubt true; nor was the said testimony introduced for any such purpose. The testimony in question was evidently introduced to show the conditions as to indebtedness existing between said company and Kleinschmidt, in May, according to the statement of Kleinschmidt, who afterwards asserted a large indebtedness against said company, which plaintiffs had alleged was a fraudulent and fictitious claim, asserted through collusion of said company with Kleinschmidt; which claim was made the basis of seizure of the company’s goods. We think said testimony objected to was admissible.
The point raised by appellant to the effect that plaintiffs were barred by a former adjudication from showing the fraud set up in this action to justify the issuance of attachment process prior to the maturity of the debt sued on is untenable, because no such bar (if the facts supporting it existed) was pleaded by defendant. The answer “ put in issue the matter alleged in the affidavit” (Code Civ. Proc., § 183) to support such attachment, but in no manner pleaded any other adjudication or judgment in bar. (Code Civ. Proc., § 103; Bliss on Code Pleading, § 303; 1 Estee on Code Pleading and Practice, § 328; 2 Estee on Code Pleading and Practice, §§ 3267-70, and cases cited; Boone on Code Pleading, § 161.)