Fee v. Big Sand Iron Co.

Ohio Supreme Court

Fee v. Big Sand Iron Co.

13 Ohio St. 563, 13 Ohio St. (N.S.) 563

CourtOhio Supreme Court

DecidedDecember 15, 1862

StatusPublished

Cited by30 cases

This text of 13 Ohio St. 563 (Fee v. Big Sand Iron Co.) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fee v. Big Sand Iron Co., 13 Ohio St. 563, 13 Ohio St. (N.S.) 563 (Ohio 1862).

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Opinion

By the Oouet.

Section (97) of the act of May 1, 1852, to provide for the regulation of incorporated companies in the State of Ohio (S. & C. St. 310), provides that,“ suits may be brought against corporations, other than railroad companies, in the same manner as against individuals, and service shall be made on the president, directors, secretary or agent in person, or by leaving a copy at the principal office of such company,” etc.

The 66th section of the • code of civil procedure, which took effect June 1, 1853 (S. & C. St. 963), provides that, “ A summons against a corporation may be served upon the pres-dent, mayor, chairman of the board of directors or trustees, or other chief officer, or if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk or managing agent; or if none of the aforesaid officers can be found, by a copy left at the office or usual place of business of such corporation, with the person having charge thereof.”

Held:

1. The mode prescribed by section 66 of the code for the service of a summons against a corporation, supersedes the mode previously provided by section (97) of the corporation act of May 1,1852 (S. & C. St. 310), and thereby secures uniformity in the practice.

2. The service in the present case is not shown to be in conformity to the code. The sheriff’s return fails to show that personal service could not be made, in the county, upon the chief officer of the company. A copy of a summons “ left at the office or usual place of business of such corpo[565]*565ration, with the person having charge thereof,” is not good service, unless the return of service shows, in substance, affirmatively, that the chief or other specified officer of the corporation could not be found in the county.

The common pleas, therefore, did not, by the return upon the summons, acquire jurisdiction over the defendant. But:

8. The corporation, by appearing in court, and causing notice of its intention to appeal from the judgment, to be entered upon the record, thereby appeared in the' action, and submitted itself to the jurisdiction of the court, and can not now be permitted, on error, to allege a want of jurisdiction in the court. Evans v. Iles, 7 Ohio St. Rep. 233; Marsden v. Soper, 11 Ohio St. Rep. 503.

The judgment of the district court must be reversed, and the cause remanded to the court of common pleas for proceedings on its original judgment.

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By the Oouet.

Section (97) of the act of May 1, 1852, to provide for the regulation of incorporated companies in the State of Ohio (S. & C. St. 310), provides that,“ suits may be brought against corporations, other than railroad companies, in the same manner as against individuals, and service shall be made on the president, directors, secretary or agent in person, or by leaving a copy at the principal office of such company,” etc.

The 66th section of the • code of civil procedure, which took effect June 1, 1853 (S. & C. St. 963), provides that, “ A summons against a corporation may be served upon the pres-dent, mayor, chairman of the board of directors or trustees, or other chief officer, or if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk or managing agent; or if none of the aforesaid officers can be found, by a copy left at the office or usual place of business of such corporation, with the person having charge thereof.”

Held:

1. The mode prescribed by section 66 of the code for the service of a summons against a corporation, supersedes the mode previously provided by section (97) of the corporation act of May 1,1852 (S. & C. St. 310), and thereby secures uniformity in the practice.

2. The service in the present case is not shown to be in conformity to the code. The sheriff’s return fails to show that personal service could not be made, in the county, upon the chief officer of the company. A copy of a summons “ left at the office or usual place of business of such corpo[565]*565ration, with the person having charge thereof,” is not good service, unless the return of service shows, in substance, affirmatively, that the chief or other specified officer of the corporation could not be found in the county.

The common pleas, therefore, did not, by the return upon the summons, acquire jurisdiction over the defendant. But:

8. The corporation, by appearing in court, and causing notice of its intention to appeal from the judgment, to be entered upon the record, thereby appeared in the' action, and submitted itself to the jurisdiction of the court, and can not now be permitted, on error, to allege a want of jurisdiction in the court. Evans v. Iles, 7 Ohio St. Rep. 233; Marsden v. Soper, 11 Ohio St. Rep. 503.

The judgment of the district court must be reversed, and the cause remanded to the court of common pleas for proceedings on its original judgment.

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Bluebook (online)

13 Ohio St. 563, 13 Ohio St. (N.S.) 563, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fee-v-big-sand-iron-co-ohio-1862.

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