107 Ohio St. (N.S.) 577 | Ohio | 1923
Epitomized Opinion
lis action was commenced and tried in the Gallia mon Pleas, against Hines, Director General of roads, for injury claimed to have been received lance, and upon trial a verdict was directed in r of the defendant, motion for new trial made overruled and judgment entered for defendant i the verdict.
ibsequently, a bill of exceptions having been filed and a petition in error made and filed, and e having been a change in parties defendant by on of there being another succeeding Director eral, “a waiver of issuing and service of process entry of appearance,” of the new Director, ed by his attorney of record, was filed with the fion in error, in the Court of Appeals.
A motion was then, made in the Court of Appeals by counsel for Davis, the substituted agent, to dismiss the proceedings in error on the ground that his client had neither been summoned nor waived summons, and entered his appearance, and that there was therefore no jurisdiction had over his person within the statutory period.
The Court of Appeals sustained this motion, and Vance brought error to the Supreme Court, which, in reversing the Court of Appeals, held:
That in the substitution of Davis for the former agent, it was unnecessary to place his name in the caption or title of the cause. That the record showed who were the parties to the case and it was proper to use the same title or caption. That as the same attorney represented the defendant throughout the case, the entry of appearance, duly signed by him, gave the Court of Appeals, under 12200 GC., jurisdiction over his client to review the judgment entered in Common Pleas.
In commenting upon the case, the court said:
“Real regret is expressed both by lawyers and laymen, that wq find so many cases in our law reports determined upon mere questions of practice, rather than basic principles of the law that reach the merits of the cause in controversy. Obviously the law or procedure is remedial. It provides legal ways and means of protecting one’s rights and defending one’s self against another’s wrongs. It has therefore been laid down as a settled rule of law, that all such remedial statutes and rules of law should be liberally construed in favor of the remedy provided by law. Now the remedy provided . . . has been the right to review the judgments of the courts of Common Pleas. The rules of law and the statutes incorporating them should be so applied as to carry out this primary remedial purpose.”
“In face of this record, to allow the judgment below to stand without the right of review by the Court of Appeals would seem to permit the big United' States government to escape through a mighty small hole, of technical procedure, wholly unwarranted by the record. Such a feat would outrival the proverbial camel’s passage through the eye of a needle.”