Opinion
Decided November 5, 1928.
Negligence — Jurisdiction of nonresident defendant cannot be determined until answer filed — Action instituted against resident and nonresident defendants — Section 11282, General Code.
Where petition in personal injury action on its face showed that all defendants were rightfully joined, and service was made on some of them in county where suit was brought, and on nonresident defendant in county of his residence, under Section 11282, General Code, question of court's jurisdiction over nonresident must be raised by answer, and trial court was without authority to pass on question before answer was filed and evidence introduced.
ERROR: Court of Appeals for Cuyahoga county.
Mr. Jerome W. Moss, for plaintiff in error.
Messrs. Nicola Horn, for defendants in error.
In the common pleas court, Mike Sanda, one of the defendants in the above-entitled action, through his counsel, filed a motion without entering his appearance in said action, for an order to quash service of summons had upon him, for the reason that there was a misjoinder of parties defendant, and that he, as a nonresident, could not be joined in such action. This motion was sustained by the trial court, and service of summons was accordingly ordered quashed. The correctness of the ruling of the trial court is now before us.
The petition is predicated upon the theory that a certain unincorporated society, through its officers and members, gave a fireworks exhibition, and suit is brought against such officers and members who participated in the fireworks exhibition. In so far as Mike Sanda is concerned, the petition charges that he was the manufacturer who furnished defective explosives which caused an injury to plaintiff, and, in addition, the petition charges that all of the defendants, including Mike Sanda, were careless and negligent in allowing and permitting dangerous and defective fireworks and explosives to be discharged, careless and negligent in failing to place competent and experienced servants in charge of the exhibition, and in failing to provide proper safeguards for the safety of spectators and invited guests, of whom the plaintiff was one.
The allegations of the petition, in our opinion, charge joint negligence against all the defendants named, and it also in substance alleges active participation in the negligent acts and omissions by all of the defendants complained of.
The section of the General Code which permits the service of summons against nonresident defendants in certain cases is Section 11282, General Code, entitled "When summons may issue to another county," is as follows:
"When the action is rightly brought in any county, according to the provisions of the next preceding chapter, a summons may be issued to any other county, against one or more of the defendants, at the plaintiff's request * * *."
It is conceded that in so far as certain defendants are concerned who were officers and members of the unincorporated society, the action was rightfully brought against them in Cuyahoga county, all of them being residents of that county.
The case of Drea v. Carrington, 32 Ohio St. 595, is pertinent to the point under discussion, and for that reason we shall quote a substantial part of the court's holding in that case.
The court held:
"1. An action to recover damages under an act requiring compensation for causing death by wrongful act, neglect, or default (2 S. C. 1139), may be brought in any county in the state where the defendant, or any one of the defendants, resides or may be served.
"2. In such case, where there are several defendants, against all of whom good cause of action is alleged, some of whom are served in the county, and others reside and are served in another county than that where the suit is brought, the validity of the service of summons in such other county, and the jurisdiction of the court over the persons of the nonresident defendants, depends upon the truth of the allegations of the petition.
"3. Where the allegations of the petition upon its face make a case in which all the defendants are rightfully joined, and service is made on one or more in the county where the suit is brought, and on the others in another county, the question of the jurisdiction of the court over the persons of the defendants served in such other county, must be raised by answer, under Sections 87 and 89 of the civil code.
"4. Where the nonresident defendants file a motion to dismiss for want of jurisdiction over them, and support it by a verified answer, as provided by Section 89 of the civil code, traversing the allegations of the petition, by showing that such nonresidents are not rightfully joined as defendants, the issue of fact thus presented, in an action for the recovery of a money judgment, is one which either party has a right to have tried by a jury.
"5. In such a case, it is error for the court, without the assent of the parties, to hear and determine this issue."
In the opinion, on page 603 of 32 Ohio St., the court said:
"Where a resident, and a nonresident of the county are sued as joint contractors, and service is made on the latter in his own county, and on the trial it turns out that the resident defendant is not liable, judgment cannot be rendered against the nonresident, because the jurisdiction of the court over his person depended on his being rightly joined with the resident defendant, and as the verdict found he was not liable, there was no authority to summon the nonresident to answer out of the county where he was served.
"In the last two cases, like the one at bar, the jurisdiction of the court over the nonresident defendants depended upon the facts in issue, which could only be determined in the usual way."
It seems clear that if upon the face of the petition a case is made in which all the defendants are rightfully joined, and service is made on one or more in the county where the suit is brought, and on the others in another county, the question of the jurisdiction of the court over the persons of the defendants served in such other county must be raised by answer, and becomes one of the issues in the case. The trial court is without authority to pass upon the question of jurisdiction until such answer is filed and the evidence introduced upon all pertinent issues, including the question of jurisdiction.
We are of the opinion that the trial court erred in ruling upon the motion as it did, and the judgment of the common pleas court will therefore be reversed, with instructions to overrule the motion to quash filed by Mike Sanda.
Judgment reversed and cause remanded.
SULLIVAN, P.J., and VICKERY, J., concur.