the property of a debtor, where it is alleged that a defendant has disposed of his property as stated in the additional affidavit. It was evidently the theory of the learned judge who heard the case that such affidavit, made retroactive as it was, brought the action within the terms of said § 5014 ab initio, and that plaintiff was entitled to judgment notwithstanding the answer. In this the trial court was wrong. No judgment should have been rendered for the full amount of the claim. Plaintiff alleged in his complaint that the debt was due and payable. That allegation was material. Without it the complaint would have been demurrable. The denial of that allegation in the answer formed a material issue. The complaint had never been amended or changed, and that issue had never been tried. The plaintiff, on his motion for judgment, must recover on the allegations of his complaint, or the admissions of the defendant. The additional affidavit was not filed in aid of the complaint, nor was it competent for that purpose.
The attachment proceedings are incidental ard provisional. They form no part of the pleadings proper. Harrison v. King, 9 Ohio St. 395; Wap. Attachm. 81. In states where the affidavit for attachment and the complaint are separate, we find no case where a complaint has been aided by the statements in the affidavit; and, indeed, this must be so, because the summons, which is the writ which gives the court jurisdiction to hear the case, requires the defendant to answer the complaint. He is not allowed in the main action to traverse the allegations in the affidavit. Churchill v. Fullraim, 8 Iowa, 46. If defendant desires to discharge the attachment, he can attack the affidavit as directed by statute; otherwise the allegations remain undisturbed. No obligation rests upon him to refute them; and, unlike the allegations of the complaint, they do not stand admitted because not denied. It is clear that the judgment was based on the additional affidavit. As that affidavit formed no part of the pleadings, and as its allegations were not admitted, its consideration was error.
The judgment of the lower court is reversed, with costs, and the case remanded, with leave to plaintiff to apply to the court for an order requiring the defendant to satisfy the amount of
