No. 9503 | N.D. Ohio | Oct 2, 1917
This action was begun in the court of common pleas, Cuyahoga county, and was removed to this court by the defendant, a foreign corporation. No process was served personally on the defendant, but plaintiff had sought to obtain jurisdiction in the state court by filing an affidavit and procuring the issue of an order of attachment, which was levied on the property of the defendant. After removal here, the defendant corporation, appearing specially for the purpose, moved to discharge the attachment, because no sufficient affidavit had been filed in the state court authorizing the issue of the order of attachment. This motion was at a former day of this term sustained, and the attachment was discharged.
Thereafter the plaintiff filed in this court an affidavit, sufficient under the stale law, and obtained the issue of an order of attachment, which has been duly levied on property of the defendant. No other process has issued from this court, and no personal service on the defendant has been made. In this state of the record, defendant again appears specially for the purpose, and moves to discharge this attachment,
In Lebensberger v. Scofield (6 C. C. A.) 139 F. 380" court="6th Cir." date_filed="1905-07-20" href="https://app.midpage.ai/document/lebensberger-v-scofield-8758244?utm_source=webapp" opinion_id="8758244">139 Fed. 380, 71 C. C. A. 476, the action had been commenced in a state court, an order of attachment was issued and levied, but no personal service had been made. In this condition, the petition for removal was filed, and the case transferred to the federal court. After removal, process was sued out and personally served on the defendant. After this service, the attachment issued and levied before removal was on motion discharged. It was held that the federal court had power to complete the service, and that the fact that the defendant had become a citizen of the district between the time when the attachment was levied and the process issued
On principle, it seems to me, if sufficient action had been taken in the state court before removal, so that, despite an order discharging an attachment after removal, plaintiff would still be in the situation of having an action pending, this court has power to perfect its jurisdiction by taking such further steps as are warranted under the state law. If, for instance, an attachment were discharged here merely because of some defect in the manner of levying the attachment, or even because of some defect or irregular action of the clerk in issuing the same, then it seems to me the jurisdiction of this court might be perfected. If this were not so, the anomalous condition would be produced of permitting the party removing the cause to come here with all the rights and remedies accorded to him by the state law, while the other party would be brought here denied of some ,o£ those rights and remedies. The net result would be that the defendant defeats the plaintiff’s action by removing it. If, on the other hand, the attachment were discharged here-because no sufficient affidavit had been filed in the state court authorizing the issue of an attachment, and the pendency of the action both here and in the state court depended on nothing else than the attachment proceedings, then a discharge of the attachment would leave no valid proceedings, properly begun, but not completed, upon which to base further steps to perfect the jurisdiction of this court.
In the present case the attachment was discharged here because no sufficient affidavit had been filed, justifying the issue of an order of attachment. An order of attachment issued without a sufficient affidavit is absolutely void. Endel v. Leibrock, 33 Ohio St. 254; Leavitt v. Rosenberg, 83 Ohio St. 230, 93 N. E. 904. Such is the present situation. The order of this court discharging the attachment for want of a sufficient affidavit shows that the entire attachment proceedings were void, and, being void, the situation is as if no such proceedings had been begun. The jurisdiction both of the state court and of this court over the defendant depends exclusively upon the attachment proceedings, and, inasmuch as those proceedings were utterly void, there is nothing left upon which to base further steps to perfect the jurisdiction of this court In that situation, the filing of a new affidavit, and the issue of a new order of attachment in this court, is the equivalent of beginning an action by the issue and levy of an order of attachment without personal service on the defendant.
If the order of attachment had been discharged in the state court for the reason for which it was discharged here, the plaintiff would not have a pending action in the stale court. He would have, it is true, a petition lodged in the clerk’s office, with a number on the appearance docket of the court; but each act and step required by law to begin an action would have to be commenced over again. Under the Ohio law, an action is pending, so as to stop the running of the statute of limitation, from the time process is issued, only when actual service is made within 60 days thereafter. G. C. §§ 11230, 11231. An attachment can be issued only at or after the commencement of an action. G. C. §§ 11279, 11280. All of the steps indicated by these sections as necessary to give a plaintiff the status of one having an action pending in court
I am therefore of opinion that an order should be entered, discharging tire attachment and striking plaintiff’s petition from the files of this court. An exception may be noted in behalf of plaintiff.
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