Lamb v. Boyd

2 Ohio Cir. Dec. 672

• Court: Paulding Circuit Court
• Decided: May 15, 1890
• Status: Published

Opinion

Beer, J.

The petition is insufficient to sustain the decree. If an action can be maintained under sec. 5179, where service is obtained by publication, the pleader must set out exactly the nature of the defendant’s claim or title, and the relief sought against him, so that the court can determine, judicially, whether such claim<'or title is valid or not.

C. A. Seiders, for plaintiff in error. J. B. Brodnix, for defendant in error.

But suppose it be not necessary in such case to set out the nature of the defendant’s claim or title, the petition is, nevertheless, insufficient. Under sec. 5060, Rev. Stat., the plaintiff must state the facts constituting his cause of action in ordinary and concise language. Every judicial action involves: (1), a primary right possessed by the plaintiff, and a corresponding duty devolving upon the defendant; (2), a delict or wrong done by the defendant, which consisted in a breach of such primary right and duty; (3), a remedial right in favor of the plaintiff, and a remedial duty resting on the defendant springing from this delict, and, finally, the remedy or relief itself. Pomeroy’s Remedies, secs. 453, 454, 519, 520, 521, 523. A petition must state the facts which are the occasion of the primary right and duty, and the facts which constitute the defendants’ wrongful act or omission. Pom. Rem., sec. 524. The ownership and possession of the land are the facts which entitle the plaintiffs to hold their title and possession in peace, and make it the duty of the defendants not to cast a cloud upon their title, or to interfere with their possession. Asserting a claim or title adverse to the plaintiffs, is the delict, or wrong, on the part of the defendants. What delict or omission is alleged against Isom Lamb? Uiat he, or his unknown heirs, assert some claim or title adverse to the plaintiffs. It is not that he and his unknown heirs, but either he or his unknown heirs assert, etc. Or is an alternative conjunction which offers a choice between two persons or things. Greene’s Grammar, 106; Harvey’s Grammar, 129; Kirkham’s Grammar, 123. Or allows one or the other, but not both. Webster’s Dictionary. In this case, of whose delict do the plaintiffs complain? No one can tell. A good petition must contain a cause of action in favor of the plaintiff and against the defendant. Where such cause of action is not shown, the objection is not waived by the failure of the defendant to demur. 26 O. S., 522.

The attempt to obtain service by publication was a failure. It notified Isom Lamb, or his unknown heirs, whether the one or the others, no one can tell.

Pleadings and process thereunder should be certain. In this case, no one was sued, no one was served with process; the court acted without jurisdiction; Isom Lamb did not have his day in court.

Decree reversed, and petition dismissed.