Whittaker v. Stone

7 Ohio Cir. Dec. 593

• Court: Hamilton Circuit Court
• Decided: July 1, 1898
• Status: Published

Opinion

Smith, J.

* * * We are of tbe opinion, on tbe authority of. Yoho v. McGovern, 42 O. S., 11, tbat where a plaintiff commences an action on a joint claim against two defendants, who are non-residents of tbe state, and sues out an attachment which is levied upon property as tbe property of one or both of them, and summons issues against both of tbe defendants and is duly served on one of them and returned not found as to tbe other defendant, and on tbe day fixed for tbe trial judgment is rendered against tbe party served, and on the following day an alias summons is issued against tbe other defendant, and he is personally served, and on tbe day fixed for tbe bearing trial is bad and judgment is rendered against him from which judgment be appeals, that an answer setting up such facts does not constitute a good defense; tbat under such circumstances the taking of tbe judgment against the defendant first served does not merge tbe debt against tbe other into the judgment against the first, but tbat be is authorized afterwards to sue tbe person not served on the original debt, and if be can obtain service upon him recover a judgment thereon, notwithstanding tbe former judgment against tbe other joint debtor. If be can do so in a new action, we think be can do so in the same action if tbe justice has not lost jurisdiction of the action, as we think be bad not in this case. We think the demurrer [to the answer setting up these facts] was improperly overruled and tbe action dismissed, and tbe judgment will be reversed and tbe cause remanded to the court of common pleas for further proceedings.