ATTACHMENT — EXEMPTIONS.

[Franklin Circuit Court,

January Term, 1893.]

Shearer, Stewart and Shauck, JJ.

#### HARRY ROSS v. MILLER MERCHANT TAILORING CO.

1. Dismissal may be Waived, after, giving of Discharge Bond.

The giving of a discharge bond by a defendant in attachment proceedings does not operate as a waiver of prior defects in said proceedings, nor deprive him of the right, at any time before judgment, to move to discharge such attachment.

2. Exemption in Lieu of Homestead is in Addition 'i o Personal Earnings.

A resident of Ohio, who is the head of a family, and not, and whose wife is not, the-owner of a homestead, may in lieu thereof hold exempt from attachment personal property to an amount not exceeding five hundred dollars, including personal earnings, in excess of the sum of one hundred and fifty dollars exempt under sec. 6489’ Rev. Stat.

3. Limitation in Error is Six Months.

Proceedings in error under section 6524 Rev. Stat. to reverse an order refusing to discharge an attachment, may be commenced within six months after the making of such order. The limitation of ten days under sec. 6525 does not apply to a refusal to-discharge.

Error to -the Court of Common Pleas of Franklin county.

November 29, 1890, the Miller Merchant Tailoring Co., defendant in error, brought an action against Harry Ross, the plaintiff in error, before a justice of the peace of Franklin county, to recover the amount of a certain judgment before that time recovered by said! company against Ross; and caused process in attachment and garnishment to issue therein, which was served on the city of Columbus, a debtor of Ross, as garnishee.

Afterwards, on December 1, 1890, Ross executed in favor of said company a discharge-bond conditioned and payable in accordance with the requirements of sec. 6513 Rev. Stat.; whereupon, as appears by the record, the magistrate “discharged said attachment, and also discharged the said garnishee from further liability in the premises, and gave a release of the property, money and personal earnings in the possession of said garnishee to said: defendant.”

December 11, 1890, Ross moved for a discharge of said attachment, and the exemption,, in lieu of a homestead, of the funds garnisheed, in excess of $150, alleging said funds to be his personal earnings within three months prior to the commencement of said action, supporting the motion by his affidavit, by which it appeared that he was the head of a family, a resident of Ohio, and that neither he nor his wife was the owner of a homestead; that his personal property did not exceed two hundred dollars in value; that the 'property attached was his personal earnings within three months as aforesaid, and was necessary for the support of his family, and that his entire personal earnings during said period did not exceed', two hundred and twenty-five dollars. No other evidence was submitted.

December 15, 1890, this motion was overruled on the ground, as appears by the-transcript, that “the'attachment and garnishment having been heretofore discharged and released, this motion to discharge is improperly made.”

Thereupon, a trial being had, judgment was given in favor of said company, against Ross, for the amount of its demand, and costs of suit.

Ross took a bill of exceptions, embodying his affidavit in support of the motion to discharge the attachment, which is part of the record, and June 11, 1891, filed a petition in-*659error in the court of common pleas to obtain a. reversal of the order of the magistrate overruling said motion to discharge said attachment.

To this petition in error the company interposed a general demurrer, which was sustained, and judgment given in favor of the defendants in error for costs; to reverse which judgments this proceeding is prosecuted.

McFadden, for plaintiff in error.

Earnhart, for defendant in error.

SHEARER, J.

It seems that the magistrate was 'beguiled into the belief that the execution of the discharge bond put an end, to the ancillary proceedings in garnishment and remitted the creditor to its action on the bond. Manifestly this was so, for he records upon his docket that upon the execution of the discharge bond, he “discharged the attachment, the property and the garnishee.”

While it is true that a discharge bond supersedes proceedings under the attachment from the time it is given, it does not operate as a waiver of prior defects in the proceedings, nor take away the right of the debtor at any time before judgment to move to discharge the attachment. The condition of the bond was that Ross would perform the judgment of the magistrate in the action; that is, the final judgment lawfully rendered. But this in no wise implies that he waives, or is deprived of, the right to object to the attachment upon any lawful ground. Saxton v. Plymire, 2 Ohio Circ. Dec. 118.

This being so, the next inquiry is whether the motion was properly overruled.

Plaintiff in error showed by his affidavit that he was entitled under the statute to the benefit of the exemptions he claimed; and there was no evidence controverting his right. Clearly, then, the motion to discharge the attachment should have been granted, and the refusal to do so’ was error. Seville v. Wagner, 46 O. S., 52.

As before stated, the court of common pleas sustained a demurrer to the petition in error filed in that court. Such practice, to say the least, is novel. We are aware of no precedent warranting it. If there was no error in the record, the judgment should have been affirmed; otherwise it should have been reversed or modified.

The action of the common pleas sustaining the demurrer and rendering judgment for defendant in error for costs, was equivalent to a dismissal of the petition in error; which was not justifiable by anything found in the record.

It is claimed that Ross did not commence 'his proceeding in error in the court below in time; and section 6525 Revised Statutes is cited to sustain the contention. This section is not applicable. It relates to proceedings to reverse an order discharging an attachment; not to an order refusing to discharge. The preceding section — 6524—controls here; and the remedy therein provided is governed by the general limitation as to proceedings in error.

There is obvious propriety in requiring summary proceedings in a case arising under sec. 6525, which does not obtain where the error complained of is the refusal to discharge.

The proceeding in error in the common pleas was commenced within six months after the rendition of the judgment complained of; and was, therefore, in time.

For the reasons above stated the judgment of the court of common pleas and as well the judgment of the justice of the peace are reversed, with costs; the attachment is discharged, and this cause remanded to said magistrate for such proceedings as are authorized by law.