Opinion
No. 1963
Decided April 8, 1948.
Replevin — Affidavit on information and belief sufficient — Section 12052, General Code — Motion to set aside writ properly overruled — Where filed after seizure of property.
1. An affidavit of plaintiff, in an action in replevin, is sufficient, within the provisions of Section 12052, General Code, if it is signed by the affiant only on information and belief.
2. A motion to set aside a writ of replevin, based on insufficiency of the affidavit, is properly overruled where the motion was filed after the property involved had been seized.
APPEAL: Court of Appeals for Montgomery county.
Messrs. Scharrer, Scharrer Hanaghan, for appellees.
Mr. Irvin Carl Delscamp, for appellant.
This is an appeal on questions of law from the Court of Common Pleas of Montgomery county. The action was one in replevin wherein the plaintiffs sought to recover certain chattel property from the defendant.
The record discloses that the petition and affidavit in replevin were filed on August 8, 1947; and on August 11, 1947, the property was seized by the sheriff, taken into his custody and no redelivery bond was posted by the defendant.
On September 5, 1947, the defendant filed a motion to set aside the writ of replevin for the sole reason that the affidavit was not sworn to positively but rather on belief, the affidavit being as follows:
"Thomas J. Nugent, being first duly cautioned and sworn according to law, says that he is one of the plaintiffs in the foregoing cause of action, and that the facts stated therein are true, as he verily believes."
The sole question for determination is the sufficiency of the affidavit. We think that the trial court properly overruled the motion to dismiss for two reasons.
First, the affidavit conforms with all the requirements of Section 12052, General Code, which provides:
"An order for the delivery of property to the plaintiff shall be issued by the clerk of the court in which the action is brought, when there is filed in his office an affidavit of the plaintiff, his agent or attorney * * *."
Counsel agree that the affidavit is not a pleading, but counsel for the defendant, appellant herein, urges that, since it is not a pleading, it must, therefore, resolve itself to be evidence, and if it is evidence it must be positively sworn to. We are of the opinion, however, that it is not evidence. It is filed for the sole purpose of complying with the requirements of the section of the Code as above stated. It is not evidence which may be used upon the trial to prove any material questions at issue. As to those matters the testimony of witnesses must be so taken as to subject the witness to cross-examination. An affidavit is an ex parte declaration and does not conform to this requirement. It is merely a statement of fact from which judicial conclusions may be drawn. It is not a pleading in which allegations of conclusions of fact may be permissible, but is a statement of a fact. The Code provides that the affidavit may be made by the plaintiff, his agent or attorney. Section 12052, General Code, does not require the affiant to have personal knowledge of the facts as required by Section 11358, General Code, which provides when an agent or attorney may verify a pleading. Since personal knowledge is not required, one signing as agent or attorney, without personal knowledge, can do so only upon information and belief.
Counsel for defendant seems to rely on the case of Bobilya v. Priddy, Assignee, 68 Ohio St. 373, 67 N.E. 736. We have examined that case and find the facts to be somewhat similar with the exception that the affidavit was sworn to positively and not merely on belief. The court did not say that a positive affidavit was required in order to sustain the writ. The court, however, did comment upon the fact that a positive affidavit had been filed.
A second reason to support the ruling of the trial court is that the motion was filed after the property had been seized, which was too late. The affidavit of replevin is filed to obtain a provisional remedy, that is, to acquire possession of the property. Bates' Pleading, Practice, Parties and Forms (4 Ed.), 2121, Section 2487. After this has been done the purpose of the writ has been served.
In the case of Harrison v. Mack International Motor Truck Co., 20 Ohio App. 256, 151 N.E. 797, it was held:
"Where a writ of replevin has been issued and served, and the possession of the property secured thereby for the plaintiff, it is too late to question the validity of the affidavit on which the writ was issued."
We find no error in the record and the judgment is affirmed and the cause ordered remanded.
Judgment affirmed.
WISEMAN, P.J., concurs.
HORNBECK, J., concurs in the judgment and in paragraph one of the syllabus.