Osmus v. Baumhardt

192 N.E. 134 | Ohio Ct. App. | 1933

This proceeding in error is brought to reverse a judgment of the Court of Common Pleas, entered by that court after a motion to quash the service of summons had been sustained. Upon the hearing of the motion certain affidavits were offered in evidence, and these have been incorporated in the bill of exceptions. It appears from the petition that the plaintiff, Elmer Osmus, seeks to recover from the defendant, Ray Baumhardt, the sum of $840 for damage for injuries to his truck, and for loss of use thereof, growing out of a collision between two trucks, one owned and driven by the plaintiff and the other owned and driven by the defendant, which occurred on October 16, 1930, in Sandusky county, Ohio, on United States route No. 20, about five miles westerly from the city of Fremont.

The petition was filed in the Court of Common Pleas of Sandusky county on October 6, 1932, and on the same day summons was issued to the sheriff of Lorain county, which on October 10, 1932, was returned "not found." October 13, 1932, an alias summons was issued to the sheriff of Erie county, and on October 19, 1932, this alias summons was also returned not found. October 24, 1932, a second alias summons was issued to the sheriff of Knox county, and on October 29, 1932, this second alias summons was returned and filed, and the indorsement thereon showed that Ray Baumhardt was personally served with summons in Knox county on October 27, 1932. November 29, 1932, the defendant filed a motion to quash, which contained recitals to the effect that he came for the purpose of the motion only, and without intention to enter his appearance therein, and which further set up as a sole ground for quashing the service that the court did not have jurisdiction of the person of the defendant.

Did the court below err in sustaining this motion? The action would be barred in two years. Section 11224-1, General Code. The two years expired on October 16, 1932. Under the rule laid down by the Supreme Court in the case of Armbruster, Admr., v.Harrison, 116 Ohio St. 490, 157 N.E. 391, the action was begun within time, provided the service made under the second alias summons was in accordance with law. Under Section 11231, General Code, "an attempt to commence an action shall be deemed to be equivalent to its commencement, when the party diligently endeavors to procure a service, if such attempt be followed by service within sixty days."

The 60-day period began to run with the date of the first summons. Bender v. Bender, 39 Ohio App. 547, 177 N.E. 920. The record shows that a diligent effort was made by the plaintiff to procure service, and that the second alias summons was served personally upon the defendant within sixty days from the time the petition was filed and summons issued.

It remains to inquire whether the service of the second alias summons was within the terms of the statutory provisions. If this service is to be found valid at all, it must be under the provisions of Section 6308, General Code. This section provides as follows: "Actions for injury to a person or property, caused by the negligence of the owner or operator of a motor vehicle, may be brought, by the person injured, against such owner or operator in the county wherein such injury occurs. A summons in such action against any defendant or defendants shall be issued to the sheriff of any county within this state wherein such defendant or defendants reside and may be served as in other civil actions, notwithstanding any contrary provision of law for the service of summons in civil actions."

The affidavits in this case disclose that at the time the second alias summons was issued and served the defendant was not residing in Knox county, but was residing in Erie county. He was in Knox county for the purpose of operating a truck for his employer, Homberger Wagar, of Sandusky, Ohio, and he went home every night that the work permitted.

Section 6308, General Code, required that summons shall be issued to the sheriff of any county within this state wherein the defendant or defendants reside. Of course this statute, being remedial, should be given a liberal construction; but doing so we are unable to construe it to apply in a case where a person who is at the time of the attempted service in a county in which he does not reside, but is merely engaged at work operating a truck, and where the summons is issued to and served by a sheriff other than the sheriff of the county in which the defendant resides.

We are constrained to hold that the second alias summons was not issued and served in accordance with the provisions of Section 6308, General Code. The court therefore did not err in quashing the service, and the judgment will be affirmed.

Judgment affirmed.

RICHARDS, P.J., and LLOYD, J., concur.