*1 proper judg- sentence and the cause for remanded authority is not claim This case ment. irregular. it is here void but sentence here, State, supra, defendant was In Williams It of several felonies. should be same time at the convicted kept we considered were all the cases which have mind that controlling present sentences statutes as before enacted. were pronounced in the the sentences as is our correct. the defendant was convicted were in which three cases pro- they otherwise have see been do not how could We except terms could minimum and maximum that the nounced If 28746. in No. the sentence carried have been into years under two fourteen had from sentence been counts, manifestly, containing had later it indictment improper, appeared one the convictions was as to the other ineffective also have been sentence would particulars. regular may in all have been count irregularity judgment, there is this case if In our pronounced and in the form sentences whatever it is certainly petitioner held under the sentence not void. Judgment will be affirmed. WISEMAN, J, MILLER, PJ, concur. Defendant-Appellant. HOEL, VOLMER, Plaintiff-Appellee, v. District, County. Appeals, First Ohio February Decided No. 7207. *2 Rueger, plaintiff-appellee. Dolle & Cincinnati, for McIntosh, Cincinnati, defendant-appellant.
Robert G. for
OPINION By HILDEBRANT,J.: action, Plaintiff’s cause judgment, recovered a verdict arose bodily when he sustained in-
juries in an Spring automobile accident which on occurred City Cincinnati, Grove Avenue in County, Ohio, April 23rd, on principal appeal contention made on this law years suit now barred the two statute of limitation set forth in bodily injuries, for reason that no valid service of was had on the defendant in this case. GC, plaintiff Under favor of County chose Hamilton 10th, April 1948, venue and filed on year above, limitation referred to with County, Sheriff Darke directed summons for given the time of address at had who Wayne St., Versailles, Ohio. as 509 West the accident returned endorsed: April this summons was On April, .1948, day one Joe 12th writ “Received Hoel can in our bailiwick. not be found County.” Snyder, Sheriff Darke Evert Dolle, plaintiff 5th, May Robert E. counsel for On affidavit, following the Clerk of Courts the and filed made original papers in this to-wit: in the included Hamilton, SS: “State duly says Attorney Dolle, being sworn, ishe E. “Robert action, above entitled injuries damages money aris- recover action to ing occurred in Hamilton collision which out an automobile Ohio; County, place the defendant’s of residence Street, Wayne Versailles, collision was West time Ohio, residence *3 present residence; last known his his diligence cannot, and reasonable unknown with ascertained; plaintiff diligent has to made effort be locate summons, defendant herein and serve him with has himself said defendant concealed moved from but cannot that service of summons be made State of so Ohio on within the of him. State E. DOLLE.” ROBERT day praecipe On for alias summons was the same filed 31, 1948, May returned on as follows: and County, Ohio, being “Ralph Paul, J. Sheriff of Franklin first says duly sworn, deposes duly and he has been authorized County, Ohio, deputized by the Sheriff of Hamilton to and serve command, writ, pursuant and on the to day May, named defendant 10th of served within Joe Hoel copy leaving of this all the a true and certified writ with thereon, ($2.00), endorsements and check two dollars Hummel, Secretary at office J. of State of Edward Ohio, Agent process. as of for said defendant PAUL, RALPH J. Sheriff, County, Franklin Ohio.” (The law.) duly according return was verified to OHIO, COUNTY, “STATE OF HAMILTON this Writ Received o’clock, May, day of 11:21 5th A. M. and on the 10th day May¡ 1948I served named JOE HOEL Versailles, Wayne St., Ohio, by deputizing of 509 West Sheriff of Franklin purpose, for such who Deputy Hummel, J. Secretary left at office Edward copy and a true certified of this with writ all day May, thereon. endorsements on the And 15th I served the within named HOEL JOE Wayne St., Versailles, Ohio, sending of 509 West to him address, by registered post-' to his mail, addressed last known age prepaid, true and writ certified of this with all thereon, Secretary endorsements case; mailing receipt State returned envelope, Moved, marked left no is attached here- address part with and made of this return. HANDMAN, C. TAYLOR Sheriff of County, By MOLLOY, JAMES E. Deputy.” Continuing August 18th, 1948, chronology, by leave, on quash together motion to service of summons filed and, later, affidavits 4th, on November plaintiff on counter-affidavits behalf were filed. 4, 1948, orally granted On November the court directed and hearing leave amend mo- quash actually tion days, was continued never heard, and none of the affidavits filed connection there- brought being with of on the record attachment bill exceptions, they are not court. before the 20th, 1948, plaintiff peti- On November filed thereon, tion with for summons was directed County, Ohio, to the Sheriff of Madison whose attached return shows service on the defendant. *4 petition, contending Defendant demurred to the the above record shows no service within time valid the limited for the commencement of action. the by The substituted this service shown record had in conformity provides: which state, being operator or of this the “Any non-resident privilege vehicle, accept any motor who shall owner of operators and by nonresident of state to law extended having vehicle, owners, operating or of same motor of any of resident of this state operated, state, being or within any operator of motor or owner licensed subsequently state, who shall under laws of vehicle whereabouts, shall,, or shall nonresident conceal become a may be, acceptance licensure, as the by or case such operation the state motor within of such vehicle of secretary of of state state constitute make and her, process agent his, in or the service of Ohio their of any proceeding in the or instituted courts suit civil operator against such motor such of Ohio or owner state vehicle, arising of, of, or or reason out accident occurring such motor the state collision is involved.” vehicle GC, provides deputizing Frank- Sec. the Sheriff of 6308-2 State, part Secretary of this
lin serve the questioned here. record GC, provides: Sec. 6308-5 right of shall be construed to service “This act extend process upon upon residents who subse- nonresidents and quently nonresidents or their who conceal where- become any provisions abouts, limiting shall not be and service construed existing.” process hereafter now or bar, Supreme our In a case decisive of one at Court Ferkel, St, 112, Hendershot v. held second Oh syllabus: paragraph substance 6308-2 “Sec. shall the sheriff be served officer to whom directed Secretary county, upon deputized, upon being of Franklin by sending by regis- Ohio to the defendant State of mail, postage like, prepaid, true tered and attested thereof an endorsement thereon of said Secretary to such defendant his last addressed registered receipt known address ‘The return mail part of such defendant shall be to and made a attached reasonably process’ return makes it the that of service of certain notice be received defendant and does will
9 delivery require give not actual the notice to the court jurisdiction cause, constitutionally the is not invalid.” copy service, In that case the the substituted attested registered by sent to the address the en- mail last known defendant, postal establishment, returned the was just shows, the dorsed “Unknown at address” “Moved left no address.” return here commenting In §6308- on whether GC, required defendant, actual notice to the the said court 2 page at 119: mailing copy provision “The the ‘to summons legislative last known address’ in itself evidences intent a provide actually for cases in is not which notice delivered every the defendant. Were it intended in case that actually defendant, notice be delivered to a there be would providing necessity no particular that notice be sent to a should ” wit, place, to ‘last known address.’ court then observed that many years method of service in civil actions effective require delivery does not but actual of the summons to the defend- ant, “leaving copy makes service valid a at his usual place of residence.” toAs effect on due of delivery to want registered personally containing defendant letter signed attested the summons and absence of a receipt therefor, the page court said at 118: Pizzutti, “It is established now well the case Wuchter v. S., 13, Ct, U. Ed., R., 1230, Ed., 1091, 72 L. 276 and the case Hess S. 48 A. L. 37 Pawloski, S., 352, U. 274 71 L. Ct., 632, Supreme'Court S. of the United n States, that actual notice to a nonresident in in process. such a case the Wuchter cases, not is essential In the to due Taft, citing Chief Justice after numerous pertinent following made the statement: “ general ‘These cases others indicate of au- trend thority sustaining validity process, toward of service of statutory provisions if in themselves there indicate probability complied reasonable if the statutes are with, notice, the defendant will receive actual and that is ” principle that we apply think should here.’ place summons sent to which was was Whether requirement diligence met, of due and the known address last pages and 118: the court stated - place sent summons was “Whether the question of of the defendant known address’ ‘the last competent fact, presumably determined argument trial court evidence. is claimed brought evidence, although testimony is heard such See 5 American *6 record not before court. into the and R., R., 772; 591; A. Jurisprudence, 597; L. 82 L. 96 Section A. Nelson, Grimm, R., citing ex rel. A. L. 125 469— W., 583, R., Wis., 630, 102 A. N. L. plain- company’s “Conceding claim that the insurance diligence address’ ‘last known use to ascertain the must tiff of defendant, question for the nevertheless was a original in Pleas of Common of the Court determination damage presumably there determined.” action and was therefore, presume We, here that those from the record upon competent by the court questions determined trial were evidence. substituted 6308-2 for §§6308-1 While and derogation law, involved, common here are service investing jurisdic- strictly the court with construed in be to tion, by provide specifically for the affidavit filed not do attorney filing plaintiff’s prior a to substituted yet GC, herein, §6308-5 states that the act shall be service construed named upon right process those of service to extend any limiting be act shall not of construed as existing. hereafter provisions for service now provisions So, analogy to those wherein affidavits code required, appear to service be constructive are it would though required. specifically logical practice even therefore, We, substituted service had conclude be The deemed to commenced valid. action herein GC, provisions according §11231 follows: as to chapter, attempt meaning to com- “Within equivalent shall be deemed be to its com- an action mence procure mencement, diligently party endeavors when attempt sixty service, followed service within if such be days.” herein, filing petition urged petition clearly original no his so abandoned year statutory service been had has within the two limita- tion. Examination of the amended shows no dif- requiring ferent additional cause action the issuance and service further summons. passing upon efficacy personal Without of the November, defendant obtained in Madison herein, shown the record call we attention to the January 11, 1950, Rose, St, case of Couts v. 152 Oh began since its consideration of the instant wherein is held: it injured person “A occurring in an automobile collision obliged this state is not to institute injury action against through a nonresident defendant and secure service GC, §6308-1 provided GC, the time limitation §11224-1 provisions GC, under favor of the but may pro- through ceed to institute his action §6308-1 time before defendant returns to the state.” By analogy, the cause of action here would seem to be similarly protected GC, upon from the limitation of opportunity given to make record con- time of validity cealment so that service here might possibly be established. The assignments court has examined the other of error prejudicial herein and no error found to the defendant the record. judgment is affirmed. *7 MATTHEWS,JJ, & HILDEBRANT syllabus, concur in judgment. & ROSS, PJ, Dissents: any support The record fails application to show provisions judgment GC. The should be
reversed, judgment here entered for the defendant.