Opinion
No. 37106
Decided March 7, 1962.
Jurisdiction — Municipal Courts — Negligence action in territory — Where negligence is claimed to have caused injury — Section 1901.19 (D), Revised Code.
An action to recover for claimed negligence in a particular territory, where such negligence is claimed to have proximately caused injury in that territory, is an action in which "the subject matter of the action * * * is located within" such "territory," as those words are used in Section 1901.19 (D), Revised Code.
APPEAL from the Court of Appeals for Cuyahoga County.
This action was instituted in the Cleveland Municipal Court against defendant Lupi and others to recover damages for injuries claimed to have been caused to plaintiff as a proximate result of the negligence of defendant Lupi, hereinafter referred to as defendant.
Plaintiff alleges that he was operating his automobile in Cleveland when he was injured by rocks whipped and thrown at plaintiff by reason of the operation of a power lawn mower by defendant. In his petition, plaintiff alleges that defendant was negligent in operating that mower and that such negligence proximately caused injury to plaintiff.
Section 1901.01, Revised Code, establishes a Municipal Court for the city of Cleveland.
Section 1901.02, Revised Code, reads so far as pertinent:
"The Municipal Courts, established by Section 1901.01 * * * have jurisdiction within the corporate limits of their respective municipal corporations * * *. * * * the Municipal Courts also have jurisdiction as follows:
"* * *
"The Cleveland Municipal Court has jurisdiction within * * * Bratenahl in Cuyahoga County."
Section 1901.03, Revised Code, reads so far as pertinent:
"As used in Sections 1901.04 to 1901.38, inclusive * * *:
"(A) `Territory' means the geographical areas within which Municipal Courts have jurisdiction as provided in Sections 1901.01 and 1901.02 * * *."
Section 1901.19, Revised Code, reads so far as pertinent:
"Subject to Section 1901.17 * * * a Municipal Court has jurisdiction within the limits of the county * * * in which its territory is situated:
"* * *
"(D) In any civil action or proceeding at law in which the subject matter of the action or proceedings is located within the territory or when the defendant or some one of the defendants resides or is served with summons within the territory."
Defendant filed a motion to quash summons for the reason that, although defendant was served with summons in Cuyahoga County, such summons was served outside the territorial limits of the city of Cleveland.
This motion was overruled and, after trial, judgment was rendered against defendant for $350.
Defendant's motion for new trial was overruled and the judgment of the Municipal Court was affirmed by the Court of Appeals.
The cause is now before this court on appeal from the judgment of the Court of Appeals and pursuant to allowance of defendant's motion to certify the record.
Messrs. Redmond Ugan, for appellee.
Mr. Paul Mancino, for appellant.
The question to be determined is whether an action to recover for claimed negligence in a particular territory, where such negligence is claimed to have proximately caused injury in that territory, is an action in which "the subject matter of the action * * * is located within" such "territory," as those words are used in Section 1901.19 (D), Revised Code.
It would seem obvious that it is. However, defendant contends that, because the action is a transitory action and may be brought wherever the defendant may be served with process, the subject matter of the action is not located within such territory.
In Loftus v. Pennsylvania Rd. Co. (1923), 107 Ohio St. 352, 357, 140 N.E. 94, it is stated:
"Causes have been arbitrarily classified as either local or transitory. By the early common law all causes were necessarily local, because they were all triable by jury, and the jury had to be drawn from the vicinage, and jurors were not only the judges, but witnesses, of the facts. Debtors soon learned to take advantage of this fact, and by fleeing from the neighborhood made it impossible to try cases against them at all. It therefore became necessary to make all actions transitory. It was soon found again that actions affecting land, whether the title was involved, or the question was one of damages for trespass or waste, could not effectively be heard, or at least the judgment could not be effectively enforced, except at the location of the land. This gave rise to the aforesaid classification."
In Genin v. Grier (1840), 10 Ohio, 209, 211, it is said:
"* * * originally, all actions were tried in the proper counties in which the causes of action arose. Hence, originally, * * * all actions were local. * * * but when * * * men used to fly from their creditors * * * this begot the distinction between local and transitory actions, the first relating to lands, which must be tried where the land lies; the other, a debt or duty adhering to the person wherever he fled." (Emphasis added.)
It is thus apparent that, historically, an action was classified as transitory merely to enable its prosecution in a locality other than the locality in which its cause arose. Therefore, it would obviously represent a perversion of the purpose of the classification of actions to hold that the subject of a transitory action was not located within the territory where its cause arose.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, MATTHIAS, RADCLIFF and O'NEILL, JJ., concur.
RADCLIFF, J., of the Fourth Appellate District, sitting by designation in the place and stead of HERBERT, J.