Citations
- 7 Ohio 257
Full opinion text
Judge Wood
delivered the opinion of the court
A record is made of judicial proceedings for the purpose of preserving the evidence of what was transacted for the use and benefit of those interested in these transactions. If,'in making up this^ record, the clerk omit any material fact, which papers on file, or entries,on the minutes or journals of the court, show to have existed, such omission can not prejudice the party further than to put such party to the inconvenience of hunting up the proofs. ■ It is not uncommon, *when the transcripts of the records of inferior courts are certified, upon judicial process, to superior courts, and are found defective, to allege diminution, and issue a pro'cess for a more complete record. In such case, the omitted fact, if found in a proper form, is added to the record, and certified as part of it.
In this case, the omission of the clerk to embody the affidavit, upon which the writ of attachment issued, in the record, does not deprive the party interested of the use of that affidavit. It is properly added to and made part of the proceedings, and shows that the first exception taken by the plaintiffs’ counsel is incorrect in point of fact.
The same principle is applicable to the third exception taken. The journal memorandum of the entry of judgment at November term, 1810, is a minute of what was done, which, upon making up the record, might well be filled up and made complete by inserting in it all that it properly covered. It was, in substance, a judgment upon the auditor’s report as to the amount due. That report is on file, and is referred to in the journal entry, and thus made for the purposes of justice as a part of that entry. We think, therefore, that the first and third exceptions are not sustained by the facts. There was an affidavit of indebtedness and non-residence, and there was such a final judgment as the law contemplated antecedent to the sale of the land.
To sustain the claim of the plaintiffs, it is indispensable that the proceedings on the attachment be regarded as comm non judice, and, therefore, absolutely void, either at their commencement or at the time of the judgment and the order of sale.
The facts necessary to attach jurisdiction at the commencement of the suit were these: the indebtedness of the .defendant, his non-residence, and the actual levy of the attachment upon property owned by him, or in his hands subject to the payment of the debt sued for. Upon the proper existence and showing of these facts the jurisdiction of the court attaches. They are ail shown to have existed in the ease under consideration, consequently the proceedings can not be considered as coram non judice at their commencement.
The second exception taken is that the sheriff did not sign the inventory and appraisement with the freeholders. This is but an irregularity in the intermediate proceedings, *and can neither overreach the jurisdiction already attached nor invalidate the subsequent judgment and order of sale.
The position that the suit should have been brotight against the heirs, and not the administrators, is strongly urged by the plaintiffs’ counsel. If they are right, these proceedings are not maintainable, for the making the proper parties defendants is one of the facts essential to giving the court jurisdiction.
The law under which the suit was brought expressly provided that “in case of a debtor residing out of the state, the writ of attachment, as above provided, may issue against his heirs, executors, or administrators.” The writ of attachment, “ as above provided,” was authorized to bo levied upon “lands, tenements, goods, chattels, rights, credits, moneys, and effects.” In determining whether it should issue against the heirs or against the personal representatives, it was necessary to look at the nature and character of the ¡action to be commenced. By what rule could this be decided? We think by none better than this: were all the parties defendants in the state, against whom should the suit be brought for which the attachment is prosecuted ? In the case stated, the suit in question must have been instituted against the executor or administrator. It could not have been sustained against the heir in the first instance, under the law then in force. We are satisfied the administrators were properly made defendants.
This attachment was commenced in March, 1810. When the act of February 14, 1810, took effect, on the first of June of that year, the case stood upon the return of the property attached