dissenting.
It seems that the giving of an undertaking, “to the effect that the defendant shall- perform the judgment of the court,” should presuppose the suing out of a valid attachment by plaintiff. Such must have been the legislative intent. Rev. St. 1913, sec. 7769. Will it be contended that, under the statutes in question, an attachment in which no undertaking has been given or one in which no affidavit has been filed would confer *147jurisdiction of subject-matter1? And if at any stage of the proceeding it should be shown that the affidavit is false, or that no undertaking had been given, and that the court therefore never in fact had jurisdiction of the subject-matter, it would seem that the situation would be the same as if no affidavit was filed in the first instance.
In 1909 the Ohio court in Edwards Co. v. Goldstein, 80 Ohio St. 303, cited in the main opinion, in construing statutes identical with ours, held: “A defendant may at any time before judgment, under section 6522, Revised Statutes, move for the discharge of an attachment under which his property has been taken, although he has- previously given a bond for its discharge under section 6513, Revised Statutes.” In the body of the opinion it is said: “Certainly the statute does not in terms express the legislative intention that- the validity of the attachment may or may not be contested after the giving of the bond by the defendant.”
The section under consideration has not heretofore been construed by this court, and, unless the Ohio interpretation is clearly wrong it should be adopted, and mainly for the reasons stated on this point in the majority opinion.