362 N.E.2d 658 | Ohio Ct. App. | 1975
Lead Opinion
This appeal is by plaintiff-appellant from a final judgment of the Court of Common Pleas of Erie County, dismissing defendant-appellee, Elaine Gonzales, from this action for insufficiency of service of process upon her. The provisions of Civ. R. 54(B) were fulfilled to make this dismissal of defendant Gonzales an appealable judgment as to defendant, Elaine Gonzales, one of the two defendants.
This is a personal injury action in which the original complaint, filed December 12, 1972, names Elaine Gonzales, c/o Executive Shores Apartments, 515 Causeway Drive, Sandusky, Ohio, and Louis Mellen, Liberty Street, Milan Ohio (both Erie County addresses), as defendants.
A summons on the complaint with a copy of the complaint was sent on December 12, 1972, by certified mail to *255 defendant Elaine Gonzales at the above Sandusky, Ohio, address and was returned to the clerk of courts by the post office on December 26, 1972, unclaimed, with the following notation on the envelope: "Unknown by manager."
Thereafter, on March 2, 1973, counsel for plaintiff filed the following affidavit for service of summons by publication on both defendants, namely:
"That service of summons in the above entitled case cannot be made because the residences of the defendants are unknown to him and cannot with reasonable diligence be ascertained."
On March 2, 1973, counsel for plaintiff also sent a summons and a copy of the complaint by certified mail to Aetna Life Casualty Co., at its Cleveland, Ohio, office address. Aetna acknowledge receipt on March 5, 1973. Notice by publication occurred six consecutive weeks in the Sandusky Register, commencing March 7, 1973.
Defendant Elaine Gonzales on July 2, 1973, moved to quash service of summons for insufficiency of service of process. The trial court granted this motion to quash and dismissed defendant Elaine Gonzales from this action.
Plaintiff's complaint in the lower court, C. P. No. 40015, alleged that he filed a complaint in the Erie County Court of Common Pleas in case No. 38984 on August 19, 1970, that such case was dismissed on November 10, 1972, and that the case was being refiled. Case No. 38984 involved the same cause of action and the same parties. It was contended in defendant's brief, and conceded by counsel for plaintiff in oral argument in this court, that the pleadings and record in the first case, No. 38984, disclosed that Executive Shores Apartments, 515 Causeway Drive, Sandusky, Ohio, was not defendant's last known address and that in case No. 38984 defendant Gonzales had been served by certified mail at an address in Cleveland, Ohio.
The legal question posed by appellant's assignment of error is as follows:
May the trial court dismiss a defendant from a personal injury action for insufficiency of process where the plaintiff obtained service by publication and the affidavit stated, in the language of Civ. R. 4.4(A), only that service *256 could not be made because defendant's residence was unknown and could not with reasonable diligence be ascertained, without stating any factual detail to support such averment, although the plaintiff had caused the summons and complaint to be sent to defendant's last known Ohio address by certified mail, which was returned by the postal authorities showing a failure of delivery?
The question must be answered in the affirmative. A dismissal of defendant Gonzales from the action was required for the following reasons.
Civ. R. 4.4 provides for service by publication when the residence of defendant is unknown only "where such service is authorized by law."* This latter phrase "where such service is authorized by law" means that R. C.
Section 1 of H. B. 1201, effective July 1, 1971, did not repeal R. C.
R. C.
Moreover, the record and judicial admissions of the parties in the present case reveal that counsel for plaintiff failed to use reasonable diligence to ascertain the residence of defendant Elaine Gonzales. This fact was a contradiction of plaintiff's affidavit that he had used reasonable diligence.
We note the cogent reasoning in Rasmussen v. Vance (1973),
Hendershot v. Ferkel (1944),
Therefore, we conclude that the assignment of error is not well taken and that the trial court was correct in dismissing defendant Elaine Gonzales from the action for insufficiency of process.
Judgment affirmed.
WILEY and COLLER, JJ., concur. *258
COLLER, J., retired, of the Court of Common Pleas of Wood County, assigned to active duty under authority of Section 6(C), Article IV, Constitution, in the Sixth Appellate District.
"(A) Residence unknown. When the residence of a defendant is unknown, service shall be made by publication in actions where such service is authorized by law. Before service by publication can be made, an affidavit of a party or his counsel must be filed with the court. The affidavit shall aver that service of summons cannot be made because the residence of the defendant is unknown to the affiant and cannot with reasonable diligence be ascertained."
Concurrence Opinion
The service of summons upon the insurance company herein did not constitute service upon the defendant. Even if the insurance company had been named a party defendant, we conclude that the Supreme Court of Ohio has stopped short of stating that service of summons on an insurance company under the facts of this case would be sufficient to make the insurance company directly liable as a party defendant or sufficient to commence the action against the insured. R. C.
