Ritz v. May

Ohio Court of Appeals

Ritz v. May

3 N.E.2d 816, 52 Ohio App. 399, 21 Ohio Law. Abs. 257, 6 Ohio Op. 405, 1936 Ohio App. LEXIS 453

CourtOhio Court of Appeals

DecidedFebruary 3, 1936

DocketNo 4976

StatusPublished

This text of 3 N.E.2d 816 (Ritz v. May) 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

Ritz v. May, 3 N.E.2d 816, 52 Ohio App. 399, 21 Ohio Law. Abs. 257, 6 Ohio Op. 405, 1936 Ohio App. LEXIS 453 (Ohio Ct. App. 1936).

Pincite

Opinion

OPINION

By HAMILTON, J.

The judgment complained of was as follows:

“It is therefore ordered, adjudged, and decreed that said pretended attachment be, and the same hereby is, discharged and this cause hereby is dismissed at the cost of plaintiff.”

It is urged that the court erred in discharging the attachment and further erred in dismissing plaintiff’s cause.

The court was correct in discharging the attachment. See Orlopp v Schueller, Admr., de bonis non, 72 Oh St, 41.

On the question of dismissing plaintiff’s cause, we are of opinion that if it was intended to dismiss the petition in the main action, the court erred in so doing. The court, on the motion had no jurisdiction so to do since the main action was not dependent on the success of the attachment. The attachment was but ancillary thereto and the jurisdictional question before the court was on the motion to discharge. It has been held that where jurisdiction over the person depends on the attachment, if the attachment fails, the action falls. We do not have that situation here. It may be that service of summons in the main action can be obtained within the jurisdiction of the court and the case heard on the merits. If service is not had within a reasonable time, the court may dismiss the case for want of prosecution.

Our conclusion is that the dismissal of the cause was error.

The judgment will be modified by eliminating therefrom the words "and this cause hereby is dismissed,” and, as so modified, is affirmed.

ROSS, PJ, and MATTHEWS, J, concur.

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OPINION

By HAMILTON, J.

The judgment complained of was as follows:

“It is therefore ordered, adjudged, and decreed that said pretended attachment be, and the same hereby is, discharged and this cause hereby is dismissed at the cost of plaintiff.”

It is urged that the court erred in discharging the attachment and further erred in dismissing plaintiff’s cause.

The court was correct in discharging the attachment. See Orlopp v Schueller, Admr., de bonis non, 72 Oh St, 41.

On the question of dismissing plaintiff’s cause, we are of opinion that if it was intended to dismiss the petition in the main action, the court erred in so doing. The court, on the motion had no jurisdiction so to do since the main action was not dependent on the success of the attachment. The attachment was but ancillary thereto and the jurisdictional question before the court was on the motion to discharge. It has been held that where jurisdiction over the person depends on the attachment, if the attachment fails, the action falls. We do not have that situation here. It may be that service of summons in the main action can be obtained within the jurisdiction of the court and the case heard on the merits. If service is not had within a reasonable time, the court may dismiss the case for want of prosecution.

Our conclusion is that the dismissal of the cause was error.

The judgment will be modified by eliminating therefrom the words "and this cause hereby is dismissed,” and, as so modified, is affirmed.

ROSS, PJ, and MATTHEWS, J, concur.

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Bluebook (online)

3 N.E.2d 816, 52 Ohio App. 399, 21 Ohio Law. Abs. 257, 6 Ohio Op. 405, 1936 Ohio App. LEXIS 453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ritz-v-may-ohioctapp-1936.