Apollo Building & Loan Co. v. Leedom

3 Ohio N.P. 297

• Court: Court of Common Pleas of Ohio, Hamilton County
• Decided: July 1, 1895
• Status: Published

Opinion

BUCHWALTER, J.

The defendant Leedom moves to set aside the return of service of summons on him. The summons was issued August 17, 1896, to Scioto county, for money, amount claimed 8923.78, with interest from May 15, 1895, and equitable relief. The return shows personal service August 27, 1896, by the Sheriff of Scioto county in due form.

In support of the motion, said Leedom 'submitted affidavit of his residence August 17, 1896, and for more than three years previous in that county. He also offers in proof the pleadings and record in this case, from which it appears that final judgment, in foreclosure was taken May 15, 1895, ont service of notice by publication as to this: defendant. The supplemental or amended! petition on which the summons issued was filed (without leave), August 17, 1896, reciting no facts in equity, but simpjy that there was an indebtedness over after sale of mortgaged premises,and asks personal judgment against the defendant therefor. It is clear that this suit was wholly ended. That this cause of action set out in the supplemental petition was not in equity, but purely in law ; an action for money only, and that the defendant could not be served with summons in any other than Hamilton county. That service of summons thereon in any other county was not valid.

Cobb & Howard, for the motion; J. H. Charles Smith, contra.

The original action in foreclosure being at an end, no statutory authority remained to serve Leedom in such other county.

It is manifest, in looking beyond this motion, that plaintiff should bring a new action to serve the defendant in that county where it is brought, if it seeks further prosecution of the claim.