dissenting:
Being unable to concur in the conclusions reached by the majority, I must respectfully dissent.
R.C. Chapter 2716 does not preclude the defendant's raising at the garnishment hearing the question of sufficiency of the affidavit for garnishment. Rather, R.C. 2716.13(CXlXa) expressly provides that the notice to the defendant shall include a notice stating in part:
"If you dispute the judgment creditor's right to garnish your property and believe that he should not be given your money *** because they are exempt or if you feel that this order is improper for any other reason, you may request a hearing ***." (Emphasis added.)
A claim that the order is improper because of the affidavit upon which it is based is clearly within the contemplation of "any other reason" as set forth in the statute. The testimony of Sheffer would have been pertinent to this issue. The trial court erred in refusing to permit defendant to examine the witness. The statement of the witness referred to in the majority opinion was not under oath, does not constitute evidence, and cannot properly be considered for any purpose.
As to the second assignment of error, I concur in the majority opinion that the factual determination is not improper since it is within the province of the trier of fact not to believe the testimony of a witness, even if that testimony constitutes the only evidence upon an issue.