Oldroyd v. Willis

Ohio Court of Appeals

Oldroyd v. Willis

194 N.E. 610, 48 Ohio App. 560, 17 Ohio Law. Abs. 627, 2 Ohio Op. 133, 1934 Ohio App. LEXIS 315

CourtOhio Court of Appeals

DecidedJune 25, 1934

DocketNo 4638

StatusPublished

This text of 194 N.E. 610 (Oldroyd v. Willis) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Oldroyd v. Willis, 194 N.E. 610, 48 Ohio App. 560, 17 Ohio Law. Abs. 627, 2 Ohio Op. 133, 1934 Ohio App. LEXIS 315 (Ohio Ct. App. 1934).

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Opinions

OPINION

By RICHARDS, J.

The petition was apparently drawn under the provisions of law authorizing the setting aside of a judgment obtained by fraud. §11292, GC, provides in what kind of actions service of summons may be made by publication, and in paragraph 11 of the section provides, among other things, that it may be had in an action “to impeach a judgment or order for fraud.” The succeeding section, §11293 GC, reads as follows:

“Before service by publication can be made, an affidavit must be filed that service of summons can not be made within this state on the defendant sought to be served, and that the case is one of those mentioned in the next preceeding section.”

The affidavit which was filed in this case to obtain service by publication complies fully and completely with the requirements of the above quoted section.

Tire trial court in quashing the service of summons manifestly gave critical examination to the language of the petition. It evidently concluded that the averments of *628 the petition were not sufficient to constitute such a fraud as would justify sendee of summons by publication. We think that on a motion to quash service of summons by publication in a case of this kind, reference should be had only to the sufficiency of the affidavit for such service. The statutes provide simple and appropriate means for testing the sufficiency of a pleading by motion and demurrer, and it would be injecting a new element into the practice of the law if a defendant who denied the validity of the service upon him by publication could thus assail the sufficiency of the petition, and at the same time not enter his’ appearance. If he should demur generally to the petition, it would of course enter his appearance, and he cannot be permitted to do indirectly what he is prohibited from doing directly.

In disposing of this case the court is not determining whether the petition does or does not state a cause of action; that can be determined later, in the manner provided by law.

In the judgment of this court, the trial court was in error in quashing the service of summons, and the judgment will be reversed and the cause remanded for further proceedings.

Judgment reversed.

HAMILTON, J, concurs.

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OPINION

By RICHARDS, J.

The petition was apparently drawn under the provisions of law authorizing the setting aside of a judgment obtained by fraud. §11292, GC, provides in what kind of actions service of summons may be made by publication, and in paragraph 11 of the section provides, among other things, that it may be had in an action “to impeach a judgment or order for fraud.” The succeeding section, §11293 GC, reads as follows:

“Before service by publication can be made, an affidavit must be filed that service of summons can not be made within this state on the defendant sought to be served, and that the case is one of those mentioned in the next preceeding section.”

The affidavit which was filed in this case to obtain service by publication complies fully and completely with the requirements of the above quoted section.

Tire trial court in quashing the service of summons manifestly gave critical examination to the language of the petition. It evidently concluded that the averments of *628 the petition were not sufficient to constitute such a fraud as would justify sendee of summons by publication. We think that on a motion to quash service of summons by publication in a case of this kind, reference should be had only to the sufficiency of the affidavit for such service. The statutes provide simple and appropriate means for testing the sufficiency of a pleading by motion and demurrer, and it would be injecting a new element into the practice of the law if a defendant who denied the validity of the service upon him by publication could thus assail the sufficiency of the petition, and at the same time not enter his’ appearance. If he should demur generally to the petition, it would of course enter his appearance, and he cannot be permitted to do indirectly what he is prohibited from doing directly.

In disposing of this case the court is not determining whether the petition does or does not state a cause of action; that can be determined later, in the manner provided by law.

In the judgment of this court, the trial court was in error in quashing the service of summons, and the judgment will be reversed and the cause remanded for further proceedings.

Judgment reversed.

HAMILTON, J, concurs.

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194 N.E. 610, 48 Ohio App. 560, 17 Ohio Law. Abs. 627, 2 Ohio Op. 133, 1934 Ohio App. LEXIS 315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oldroyd-v-willis-ohioctapp-1934.

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