Page:Federal Reporter, 1st Series, Volume 8.djvu/35

PEBBT: V. SHABPS. 21 �tion, in writing, to vacate aud dissolve the injunetion and iestraining order theretofore allowed for reasons specified therein. On Decem- ber 16, 1880, this cause also, on petition of plaintiffs, was rewoved into thid coujt. �A motion on the part of the plaintiffs for the appointment of a receiver to take possession of and sell the goods of Pierce levied on, was heard by Hon. John Baxter, circuit judge, on January 29, 1881, and was denied ; whereupon, by consent of counsel, (the defendant Sharpe net thereby entering his appearance therein, but reserving all rights to object to the jurisdiction of this court,) it was further ordered that the restraining order theretofore allowed be so far modified as to permit the sheriff of Fairfield county to sell the goods held by him upon executions in favor of Sharpe against Pierce, but the proeeeds of the sale to be held and retained in his possession until the further order of the court in the premises. In pursuance of this agreement, as the sheriff reports, the goods were sold, February 28, 1881, to Augustus Sharpe, for $20,000. �On June 9, 1881, the defendant Sharpe, for reasons annexed, moved to dismiss the attachment against him and his property, and also the attachment against Pierce, so far as it interferes with his executions; and on the same day Pierce also moved to dismiss the attachment against him. �The motions of the defendants, in both cases, to dismiss the attach- ments and to dissolve the injunetion, have now been argued and submitted for decision. �1. As to the orders of attachment, several grounds for the motions are relied on, which I will consider in their order. �(1) It is objected as to the defendant Sharpe that he was not properly served with process in the case, and that as to him there is no jurisdiction. The objection is that, being a resident in Montgom- ery county, he could not be sued in Fairfield county. Section 5031 of the Kevised Statutes of Ohio requires, except in specified cases, that civil actions must be brought in the county in which a defendant resides, or may be summoned, and section 5038 provides that when the action is rightly brought under that former section a sum- mons may be issued to any other county, against one or more of the defendants, at the plaintiff's request. This is what was done in the present instance. If it should turn out finally that Pierce is not liable, then there can be no recovery against Sharpe. Dunn v. Hag- lett, 4 Ohio St. e35. Unless the action is founded upon a joint liability, it caimot be maintained against Sharpe ; if it is, he has been rightly ��� �