Aldrich v. Friedman

2 Ohio Law. Abs. 135

• Court: Ohio Supreme Court
• Decided: January 22, 1924
• Docket: No. 18330
• Status: Published

Opinion

Action by Bertha M. Aldrich, commenced in the Common Pleas of Lucas county, to enjoin the collection of a personal judgment against' her in favor of Charles K. Friedman. The judgment was for money only.

In August, 1917, one John W. Long filed his petition in the Common Pleas of Henry county asking foreclosure, etc., of a first mortgage which he held on a farm in said county. He made Bertha M. Aldrich, Charles K. Friedman and others as defendants.

Further pleadings showed that Friedman was the holder of a second mortgage on said farm; also that the farm had, in December, 1916, been conveyed to Berth^ M. Aldrich by a deed which recited that she assume and agree to pay the notes secured by the mortgages; also that, in March, 1917, Bertha M. Aldrich conveyed the farm to Oliver Jenkins and that after that time and prior to the foreclosure the farm was sold and conveyed several times.

The petition of Long did not mention -or seek to enforce any personal judgment against Bertha M. Aldrich. The cross-petition of Friedman alleged that Bertha M. Aldrich had assumed the payment of the second mortgage and asked a personal judgment against her.The judgment was granted.

This action was to enjoin the collection of the personal judgment. The injunction was allowed by the Common Pleas. The Court of Appeals reversed the Common Pleas.

Plaintiff claims error on the ground that personal judgment cannot be recovered by a cross-petition in a foreclosure suit.

Also that the prayer of the cx-oss-petitition asking for a personal judgment against Al-dx-ich covered a matter not set forth in the petit'on as the foundation of the plaintiff’s claim. Also, that Aldrich is and was at no time a resident of Henry county and was not served in Henry county, and that she never entered her appearance, and that a personal judgment could be rendered only in the county where she resided or could be found.

Also that a carbon copy of the paper handed to her by the sheriff of Lucas county shows beyond a doubt that the sumlmons was directed to Bertha M. Jenkins and she sent it to Emma L. Jenkins, thinking that it was meant for her. And that the summons did not notify Mrs. Al-drich that she had been sued by Friedman, and amounted to no service upon her.