American Steel & Wire Co. v. Meyers

11 Ohio N.P. (n.s.) 652, 22 Ohio Dec. 733, 1911 Ohio Misc. LEXIS 81

• Court: Ohio Superior Court, Cincinnati
• Decided: March 21, 1911
• Status: Published

Opinion

Hoeeheimer, J.

In Craig v. R. R. Co., 2 N. P., 64, it was held that personal service against a foreign executor was good, although in that ease decedent left no property in Ohio. If that case was properly decided (it was cited approvingly in 68 Kan., 377, and counsel for the motion herein can see no objection to same), I fail to see wherein the spirit of administration law is any more violated (see Woerner on American Law of Administration, Section 815), by suit instituted by constructive service based on attachment of property of a decedent within the state, provided of course the right to so proceed may be said to be conferred by statute. In the absence of such authority, it is generally held that the proceeding does not lie.

Section 6129, Revised Statutes of Ohio, was passed subsequently to Section 6133, and having this in mind and reading the sections together and also the attachment statutes, it seems to me it would but be reasonable to hold that it was intended that foreign executors should be subject to suit in the same manner that they are permitted to sue, namely, as non-residents. At any rate the statutes should be liberally construed, and should the liberal construction thus given be a proper one there would be no practical difference between our statutes thus construed and those of Kansas, in which state it was held that under their statutes attachment lies against foreign executors and that the constructive service obtained was proper. Manley v. Parks, 68 Kan., 377.

Motion to set aside service overruled and exception allowed.