Ahlgrim Son v. Wolf

The Municipal Court of Cincinnati sustained a motion to discharge an attachment under which $300 was garnisheed in the hands of Grand Lodge of the Brotherhood of Railway and Steamship Clerks, Freight Handlers and Station Employees.

In the affidavit in attachment, it was averred that the property sought to be attached was not exempt from execution.

The motion to discharge the attachment alleged that the fund was exempt from attachment, and Section 9482, General Code, was cited in support of the allegation.

The entry sustaining the motion recited that "said motion was presented to the court on arguments of counsel and thereafter on briefs of counsel submitted to the court, and the court, being advised in the premises, finds that said motion is well taken."

The Common Pleas Court affirmed the Municipal Court and the cause is now before this court on appeal from that affirmance.

No affidavits were filed in support of the motion to discharge the attachment, and we are not advised through the medium of a bill of exceptions as to what took place at the hearing of the motion.

If the answer of the garnishee could be considered we would conclude that it discloses nothing indicating whether the fund in its control is or is not exempt.

In view of the recital in the order discharging the attachment, this case must be considered on appeal on the premise that no evidence in any form was introduced at the hearing, and that the court concluded for some legal reason that the fund was exempt, notwithstanding the averment in the affidavit that it was not exempt.

While the burden of proof was upon the plaintiff to sustain its attachment by the greater weight of the evidence (Seville v.Wagner, 46 Ohio St. 52, 18 N.E. 430; Morelli v. Thombs, 35 Ohio App. 233, 172 N.E. 381) the averment in its affidavit is sufficient for that purpose in the absence of any countervailing evidence.

For this reason, the judgment of the Court of Common Pleas, affirming the order of the Municipal Court discharging the attachment and garnishment is reversed and the order of the Municipal Court is also reversed, and the cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

HAMILTON, P.J., ROSS and MATTHEWS, JJ., concur.