Opinion
No. 126730
Decided November 25, 1966.
Summons — Motion to quash out-of-county service — Section 4515.01, Revised Code — Accident not within county — Guardian ad litem cannot waive.
1. A motion to quash out-of-county service will be sustained where plaintiff has failed to comply with Section 4515.01, Revised Code, venue in actions for injury caused by motor vehicles, and where the court has not otherwise acquired jurisdiction over the person of the defendant.
2. The action of the guardian ad litem by filing an answer as required by law, cannot waive any of the rights that a minor might have, either attacking the jurisdiction or waiving the service of summons.
Messrs. Gallon Miller, for plaintiff.
Mr. William M. Hunter, for defendant.
It appears that the plaintiff herein filed a petition on August 31, 1965, alleging that on July 23, 1964, at 12:45 p. m. he was operating his automobile in a northern direction on State Route 48, and that the defendant, Suzanne Head, was operating her automobile on State Route 73, and further that State Route 48 and State Route 73 formed an intersection in Montgomery County, Ohio; that there was a duly operated stop sign on State Route 73 controlling said intersection and that as the plaintiff entered said intersection, the defendant operated her automobile through said stop sign and into the intersection and a collision occurred in the intersection between the automobiles being operated by the plaintiff and defendant.
The petition was filed in the Common Pleas Court of Montgomery County, Ohio; summons was issued for service upon Suzanne Head, a minor, together with a certified copy of the petition, on the first day of September, 1965; on the 7th day of September 1965, summons was served, together with a copy of the petition, upon Suzanne Head, and summons was served upon her father, Middleton E. Head at 7370 Hempstead Road, Westerville, Ohio, and return made by Stacy R. Hall, Sheriff of Franklin County, Ohio.
On October 1, 1965, the following entry was presented to the court and filed in Common Pleas Court appointing William M. Hunter as guardian for the suit against Suzanne Head, a minor:
"It appearing to the court that Suzanne Head, defendant in the above action is a minor, and having neglected to apply for the appointment of a guardian for the suit within 20 days after the service of summons upon her in this action, the court appoints William M. Hunter Guardian for the suit of said minor defendant, and said appointment is acknowledged by said William M. Hunter in open court."
And on October 1, 1965, William M. Hunter, guardian, filed the following answer:
"Now comes William M. Hunter, Guardian Ad Litem for the suit of Suzanne Head, minor defendant herein, and denies each and every allegation in plaintiff's petition contained prejudicial to said minor.
"Wherefore having fully answered said William M. Hunter, Guardian Ad Litem for the suit for Suzanne Head, a minor, prays that plaintiff's petition be dismissed as to said minor, and that said minor may go hence with her costs."
This cause is before the court upon the motion of Suzanne Head, as follows:
"Comes now the defendant, Suzanne Head, having attained her majority on May 28, 1966, subsequent to the filing of the within action and the appointment of her Guardian Ad Litem herein, and as her first act herein, without entering her appearance herein, or intending to enter her appearance herein, and appearing solely for the purpose of this motion, and for no other purpose, moves the court to set aside the summons issued herein, the service thereof and the sheriff's return thereon, for the reason that service has not been made in accordance with law and the court has no jurisdiction over the person of defendant."
From the certified copy of the County Engineer of Warren County, which is attached to the above motion to quash, it appears this accident did not happen in Montgomery County, but happened in Warren County, south of Montgomery County line. The court further finds that the defendant minor has become twenty one years of age since the action was filed.
Section 4515.01, Revised Code, reads as follows:
"Actions for injury to a person or property, caused by the negligence of the owner or operator of a motor vehicle, may be brought by the person injured against such owner or operator in the county in which such injury occurred. A summons in such action against any defendant shall be issued to the sheriff of any county within this state in which such defendant resides and may be served as in other civil actions."
The court finds that this action should have been brought in Warren County, Ohio; the court further finds the summons should be quashed; that plaintiff has failed to comply with Section 4515.01, Revised Code, and that this court does not have jurisdiction over the parties involved.
Plaintiff contends that jurisdiction has been waived by the guardian ad litem having filed an answer herein.
The court, in Cain v. Lamp Co., 14 O. N. P. (N.S.) at page 375, quotes from another case as follows:
"The object in having a next friend appointed for infants is to have their rights and interests claimed and protected, and the next friend or their counsel will not be permitted to yield their rights to others by a consent verdict and judgment where the court has exercised no supervision over the arrangement."
Quoting from 28 Ohio Jurisprudence 2d 601, Infants, Section 55, note: Sawitzke v. Peters Machine Mfg. Co., 29 C. C. (N.S.) 513, 35 C. D. 600:
"* * * That the next friend can do nothing which may injure the rights of the infant and his admissions are not binding upon the infant." To the same effect, see statements in Caine v. Victor Lamp Co., 14 O. N. P. (N.S.) 369, 31 O. D. (N. P.) 621.
See also Dismier v. White, 45 Ohio Law Abs. 237, 68 N.E.2d 382:
"The defense of action against a minor must be conducted by a guardian ad litem does not dispense with the legal service of process upon the minor in the manner prescribed by statute.
"The issuing and service of summons on a minor in an action affecting his rights cannot be waived by his guardian, unless authorized to do so by statute."
State, ex rel. Baker, v. Toledo State Hospital, 88 Ohio App. 345, 100 N.E.2d holds:
"Motion to quash service attacks jurisdiction of person by reason of some defect in process, and may be used also to attack jurisdiction of tribunal over person regularly served, but may not be employed to attack jurisdiction of court over subject matter."
"`Jurisdiction' is power to hear and determine a controversy, and is complete when both subject matter and parties are properly before the court."
See Timens v. Bernard Pipe Line Co., 4 Ohio App.2d 249, 212 N.E.2d 73; 44 Ohio Jurisprudence 2d, 126; Wasyk v. Trent, 174 Ohio St. 525, 23 O. O. 2d 174; Mishler v. Aero Mayflower, 12 Ohio Law Abs. 491 and Snavely v. Wilkinson, 138 Ohio St. 125, 33 N.E.2d 999.
The court therefore finds the action of the guardian ad litem, by filing an answer as required by law, cannot waive any of the rights that a minor might have, either attacking the jurisdiction or waiving the service of summons.
It is the opinion of the court that the motion of defendant to quash the service of summons and dismiss this action for want of jurisdiction of the Common Pleas Court of Montgomery County, Ohio, should be sustained. The question of venue is set forth in Section 4515.01, Revised Code.
The court finds the venue should be in either Warren County, where the accident occurred, or in Franklin County, where service can be made upon the defendant.