158 N.E. 550 | Ohio Ct. App. | 1927
The court of common pleas quashed the service of summons upon the ground that the defendant had been enticed into the jurisdiction of the court and service obtained. The defendant is a resident of California, and he came into the jurisdiction of the court soon after receiving the following letter:
"Toledo, Ohio, January 12, 1926.
"Mr. M.P. Hannin, 4373 South Van Ness avenue, Los Angeles, Cal. — My dear Mike: When you were last in Toledo, I believe you mentioned that you would be willing to talk business with me relative to the Lime Products Company which is under your control in Los Angeles.
"We are quite anxious that this matter be cleared up, owing to our interest in Urschel's affairs, and I would like very much to be helpful in bringing about some satisfactory arrangement. The only information I have relative to this matter has come from you, and I would personally appreciate it very much if you would write me giving *370 me particulars and suggesting some manner in which I might be helpful in bringing about a settlement of this dispute.
"I sincerely hope that you will be able to give me an opportunity to render some assistance in this matter. There is some selfishness on my part in trying to accomplish something, but you know very well that I have always entertained a very high regard for you and have been interested in your affairs.
"With kind regards, I remain very truly yours, [Signed] J.T. Rohr, Vice President."
The claim is made that J.T. Rohr, vice president of the Toledo Trust Company, was the agent of the plaintiff in writing the letter in question and that the defendant came to Toledo in response thereto. The principle is well established that valid personal service cannot be obtained by inveigling or enticing a person into the territorial jurisdiction of a court by means of fraudulent misrepresentations, or by trick or device. 32 Cyc., 448; 21 Ruling Case Law, 1275, Section 17. The letter, however, merely expressed the belief that the defendant was willing to talk business and a wish for assistance in reaching a settlement, and requested that the defendant give full information regarding the matter by writing complete particulars that might be suggestive or helpful in bringing about a settlement of the controversy. Upon receipt of the letter the defendant came into the territorial jurisdiction of the court, and, as the letter did not amount to a trick, or an artifice, or a device to bring him within that jurisdiction, or even to an invitation to come in, his coming was purely voluntary. For that *371 reason the court committed prejudicial error in sustaining the motion to quash service.
Some question has arisen as to whether, under Section 12258, General Code, there was a final order in the trial court to which error could be prosecuted. The trial court, after quashing service of summons, entered judgment against the plaintiff and in favor of the defendant for costs. The defendant was at the time of the commencement of the action, and at the time of the service of summons on February 1, 1926, and for more than three years prior thereto, a resident of the state of California and had no residence in the state of Ohio. Service of an alias summons therefore could not be made. If the motion was properly sustained, the question of jurisdiction was effectually determined and the case ended. Even though there was no dismissal of the petition by the trial court, we are of the opinion that the action of the court constituted a final order. Gorey v.Black,
For the prejudicial error indicated, in sustaining the motion and quashing service of summons, the judgment of the court below will be reversed and the cause remanded, with instructions to overrule the motion to quash the service of summons and for such other proceedings as are accorded by law.
Judgment reversed and cause remanded.
CULBERT and RICHARDS, JJ., concur. *372