Hines & Hobbs v. H. I. Kimball & Co.

McCay, Judge.

Without question, a claimant may attack the plaintiff’s judgment for any thing which makes it void. He may do this even collaterally on the trial of the claim. So, too, does it seem to us he can do it directly by a motion in the Court of its origin: Revised Code, sections 3534, 3535, 3538. We do not think this attachment void. It sets forth that H. I. Kimball & Company are indebted; that H. I. Kimball & Company are a firm of which the partners are H. I. Kimball and other persons to the affiant unknown, and that H. I. Kimball & Company abscond.

It is said that this is only saying that H. I. Kimball absconds, since it is impossible that the affiant can swear that the firm absconds, when he knows none of the firm but H. I. Kimball. But this is not clear. He may well know that H." I. Kimball and various other persons, some of whom were his partners, have all gone, and yet not be able to say distinctly which ones of the lot were the partners. He swears that the firm — all of it, has absconded. This may be true, it may not. But if the affidavit is admitted, as it must be on a demurrer, we think it is sufficient. It swears all that the law requires— the existence of the debt and of the firm, and that the firm absconds.

Judgment reversed.