Summary
characterizing service by delivery at the individual's abode as substitute service
Summary of this case from Long-Term Credit Bank v. Superior CourtOpinion
No. 36701
Decided May 10, 1961.
Summons — Attached with rubber band to outside doorknob of defendant's house — Not valid residence service.
1. For residence service as provided for by Section 2703.08, Revised Code, by leaving a copy of the summons at the usual place of residence, to be valid, the summons must be left at the residence of the defendant in such a place and in such manner that it is reasonably probable that the defendant will actually receive the notice of the action against him.
2. Attaching a summons with a rubber band to an outside doorknob of defendant's house fails to constitute the leaving of the summons at the usual place of residence in such place and in such manner that the defendant may reasonably be expected to receive it, and such attaching does not constitute valid residence service.
APPEAL from the Court of Appeals for Summit County.
The Director of Highways, appellant herein, desires to appropriate certain property of Ralph and Rose C. Sours, appellees herein, for the purpose of obtaining an easement for highway purposes. The Sours property is located on Manchester Road in Summit County, Ohio.
Pursuant to making such appropriation, on January 28, 1959, a deputy sheriff proceeded to the appellees' residence at 2448 Manchester Road for the purpose of effectuating service upon them.
The deputy sheriff, finding no one present at the appellees' residence on that date, attempted to make residence service upon them by placing a rubber band around the summons and papers and attaching the same on the outside doorknob of either the side door or the front door of the house. The deputy sheriff testified at the trial of this cause that he was not certain whether it was a front door or a side door to which he attached the summons. He also testified that he thought there was a storm door, which he opened before placing the papers on the doorknob of the inner door.
The appellees, the record reveals, had temporarily left their home in November of 1958 and, except for a visit on December 24, 1958, had remained away from their residence until April 1959.
At the trial of this cause, Mrs. Sours testified that neither she nor her husband ever received or saw the summons or papers.
A default judgment was taken by the state on March 13, 1959. Upon finally hearing from a third-party source of the judgment against them, the appellees filed a petition after term to vacate the default judgment on the ground of no jurisdiction due to a failure of proper service and notice of suit.
The state moved to dismiss the petition to vacate, which motion was overruled. Subsequently, appellant filed an answer containing a general denial.
Hearing was had on the petition to vacate and the Court of Common Pleas ordered the default judgment vacated, holding that the court had no jurisdiction of the subject matter of the cause because of a lack of proper service and notice to appellees.
Upon appeal, the Court of Appeals affirmed the judgment of the Court of Common Pleas.
The cause is now before this court pursuant to our allowance of appellant's motion to certify the record.
Messrs. Hershey, Browne, Wilson, Steel, Cook Wolfe, for appellees.
Mr. Mark McElroy, attorney general, Mr. William B. Furnier and Mr. Harry R. Paulino, for appellant.
The single question raised by this appeal is whether the fastening of a summons to the outside doorknob of a residence with a rubber band constitutes valid residence service.
The basic purpose of service of process is to give notice to a person that an action has been brought against him. However, where substituted service, such as residence service, is authorized by statute, and where if the provisions of the statute are strictly followed it is reasonably probable that the person so served will receive the notice, the fact that in some instances the person does not actually receive the notice does not invalidate the service.
Substituted service is provided for by Section 2703.08, Revised Code, which reads in part as follows:
"Service shall be made at any time before the return day, by delivering a copy of the summons, with the indorsements thereon, to the defendant personally, or by leaving a copy at his usual place of residence * * *."
No question is raised in the instant case as to what is the usual place of residence. It is apparently conceded that the place where the summons was left was the usual place of residence of appellees.
Our sole question is the meaning of the phrase, "by leaving a copy at," as it is used in Section 2703.08, Revised Code, providing for substituted service on a litigant "by leaving a copy at his usual place of residence."
It is impracticable if not impossible to attempt to define in detail what specific conduct would constitute the "leaving a copy at his usual place of residence" as required by Section 2703.08, Revised Code. The where and how such process must be left at the residence are primarily questions of fact which must be determined under the facts and circumstances of each case.
However, there are certain basic requirements which must be met in order to have a valid substituted service by leaving a copy of the summons at the residence of the defendant.
For substituted service by leaving a copy of the summons at the usual place of residence to be valid, the summons must be left at the residence of the defendant in such a place and in such a manner that it is reasonably probable that the defendant will actually receive the notice of the action against him. Lovin v. Hicks, 116 Minn. 179, 133 N.W. 575; Shephard v. Hopson, 191 Ark. 284, 86 S.W.2d 30; Krasner v. Gurley, 248 Ala. 686, 29 So.2d 224.
Does the fastening of a summons to the doorknob of the residence fulfill the above requirements? Both the Court of Common Pleas and the Court of Appeals found that such procedure did not comply with the statute.
One must take into consideration the fact that today it is the common practice of large numbers of advertisers and other door-to-door canvassers to attach their sundry materials to the doorknobs of homes by means of rubber bands or otherwise. In the usual case, it is unlikely that these numerous papers so attached will receive careful attention from the occupants of the household. The occupant does not expect to find important legal or business papers in such a place. It is a common experience for persons first entering the house, be they adult members of the family, their children, or merely visitors, to remove such matter from the door and to immediately dispose of it or at best to make no more than a cursory inspection of such papers.
In addition, it seems apparent that the attachment of a summons to a doorknob by means of a rubber band hardly represents a secure means of attachment to the door. Wind, rain, or any small physical disturbance of the summons so attached may easily lead to its falling from the door and being blown away or falling into such a place as to cause the paper to pass unnoticed by the occupants of the residence.
Therefore, our conclusion is that the placing of a rubber band around a summons and attaching it to the outside doorknob of either the side door or the front door of a house fails to constitute the leaving of the summons at the usual place of residence, in such place and in such manner that the defendant may reasonably be expected to receive it.
Consequently, we are unable to say, as a matter of law, that the lower courts' determination that the method and manner of service employed herein was invalid constitutes error.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, BELL and O'NEILL, JJ., concur.
HERBERT, J., not participating.