Sirman v. Moore

Conrad, J., delivering the opinion of the court: Section 4134 of the Revised Code of 1915 gives to the debtor in a foreign attachment proceeding the right to come into court within a year and by petition to show that he has a legal defense to the action, and thus appearing he shall be given the opportunity to avoid or disprove the claim of the plaintiff. And this would seem to be his right regardless of the fact as to whether or not he had notice of the attachment proceeding. In the pending matter, Mr. Layton, the plaintiff’s attorney, seems to have proceeded in an entirely regular and proper way, and the court is satisfied that he told the petitioner at his first interview with him that action had been brought, but petitioner evidently was unacquainted with the foreign attachment proceeding, and supposed when suit was brought he would be summoned personally by the sheriff, and in this he was further misled by the suggestion of Mr. White, his tentative counsel, who advised him (not knowing that he was a nonresident of the state) that he need not do anything until he was summoned by the sheriff. The petitioner having appeared in this court within a year from the date of judgment obtained, and the allegations of his [376] petition being deemed sufficient, the rule is made absolute, and it is ordered by the court that the judgment be vacated and the defendant is allowed to plead within ten days.