JURISDICTION OVER NON-RESIDENT DEFENDANT.

Court of Appeals for Butler County.

#### George B. Orr v. Robert H. Shoemaker.

Decided, May, 1914.

*Attachment*— Motion *to Discharge Not an Appearance Conferring Jurisdiction Over the Person of the Defendant, When*— Subject-Matter *of Action is Existence of the Indebtedness Charged and Not Ownership of the Property Attached.*

1. Jurisdiction oyer the person of a non-resident defendant in a suit in attachment is not acquired by the filing of a motion by him for a discharge of the attachment for the reason that he is not the owner of the property upon which it has been levied.

2. The overruling of a motion for judgment by default is not a final order to which error can be prosecuted.

*Harry T. Klein*and *Sam D. Fiiton,*for plaintiff in error.

Jones, O. B., J.; Swing, J., and Jones, E. H., J., concur.

The point involved in this case is whether the defendant, by-filing of the motion to discharge the attachment, inadvertently entered his appearance in the cause and thus gave the court jurisdiction of his person.

Defendant is a non-resident of Ohio. Two causes of action are embraced in the petition; one upon a promissory note and the other upon an account. A farm and,certain chattel property upon it located in Butler county, were attached in said proceeding.

Defendant filed a motion in the following words:

> “Now comes the defendant herein, by his counsel, and without entering his appearance herein and without waiving any of his rights, and for the purpose of this motion only, moves the court to discharge the attachment herein and to release the property claimed to have been attached in this proceeding, for the reason that said property is not subject to attachment herein as the defendant is not the owner of said property, and the court therefore has no jurisdiction of the subject matter.”

*211On hearing, this motion was overruled by the court. After-wards, in August, 1913, plaintiff filed a motion ashing for judgment by default against the defendant, on the ground that the defendant had entered -his appearance by filing the motion above quoted, and was in default for answer.

If this motion of defendant was for the purpose of contesting the merits of the cause in any particular, or the jurisdiction of the court upon the subject-matter of the action, it would constitute a waiver of all objections to the jurisdiction of the court over the person of the defendant, even though he had distinctly protested against such jurisdiction, as he did in this case. *Elliott*v. *Lawhead,*43 O. S., 171; *Long*v. *Newhouse, 57*O. S., 348, 370; 3 Cyc., 508.

It is clear, however, that the purpose of this action was to challenge the jurisdiction of the court to his person, by showing that the property sought to be attached was not his property and therefore the court had acquired no such jurisdiction over his-person, and he had not been brought before the court. The subject-matter in the case was not the ownership of the property sought to be attached, but was simply whether he was indebted on the note and upon the account. The only question, therefore, brought before the court by the motion was whether the court had acquired a jurisdiction as against him. This is the construction that must be placed upon the motion, although it is not clearly drawn. The use-of the words “subject-matter” in it does not refer to the subject-matter of the ease itself, but rather to the property sought to be attached. ’

The motion filed in the case of *Newcomer*v. *Atkins,*9 N.P.(N.S.), 308, contained several paragraphs addressed to the merits of the ease, and yet the court properly held that the purpose of the motion was only to secure a discharge of the attachment and it did not effect an appearance.

The case of *Blinn*v. *Rickett,*3 N.P.(N.S.), 345; 6 C.C.(N.S.), 513, is very similar to the case at bar; and the case of *Smith*v. *Hoover,*39 O. S., 249, is exactly in point.

The court below was, therefore, correct in holding that jurisdiction over the person of the' defendant had not been acquired, and in overruling the motion for a judgment by default.

*212The record fails to show that any evidence was offered or submitted to the court on the hearing of the motion for judgment. In our opinion, the overriding of this motion for judgment by default was not a final order of the court below, and the prosecution of error in this court to that ruling is therefore premature, and the petition in error should be dismissed.