Opinion
No. 22669
Decided May 13, 1931.
Error proceedings — Jurisdiction to review judgment of inferior court — Service necessary upon all parties who would be prejudiced by modification or reversal.
The jurisdiction of the Court of Appeals to review, modify or reverse a judgment of an inferior court cannot be invoked without service, or its equivalent, upon all parties who would be prejudiced by a modification or reversal of such judgment and who were actual parties in such inferior court.
ERROR to the Court of Appeals of Erie county.
The plaintiff in error, Gertrude E. Greenlee, instituted an action in the court of common pleas of Erie county, Ohio, against her husband, Harry R. Greenlee, for alimony. She joined the New York Life Insurance Company as a defendant, and alleged against it that her husband was the owner of several life insurance policies issued by it, and prayed as against it an injunction enjoining it from paying any money to her husband, and that upon final hearing it be ordered to transfer such policies, or pay the value thereof, to her as alimony.
Service by publication was had upon Harry R. Greenlee. Actual service was had upon the insurance company. A temporary injunction was issued against the company restraining it from paying any money to Harry R. Greenlee and from doing anything to change the status of the plaintiff in error or her husband with relation to such policies.
Upon final hearing, the trial court found that the plaintiff in error was entitled to alimony in the sum of $3,600; found as a fact that the policies in question had a value of $7,199.11; that she was entitled to share in the value of such policies; that it had no jurisdiction to order the insurance company to transfer or set over to her any part of the policies, for the reason that it had not obtained jurisdiction over the policies by personal service upon Harry R. Greenlee. It dissolved the injunction against the insurance company.
The plaintiff in error prosecuted error to the Court of Appeals, and there sought a reversal of the judgment dissolving the injunction against the insurance company, and a reversal of the judgment that the court had no jurisdiction to order a transfer of the policies or a portion thereof to the plaintiff in error.
The insurance company waived the issuance and service of summons in error, and entered its appearance in the Court of Appeals. No waiver of the issuance and service of summons upon Harry R. Greenlee was secured, no entry of appearance by him had, no service of summons was made upon him, and no service by publication was attempted. The Court of Appeals, however, assumed jurisdiction of the case, and, upon review, affirmed the judgment of the trial court. The cause is here upon the allowance of the motion of the plaintiff in error to require the Court of Appeals to certify its record.
The insurance company waived the issuance and service of summons in error in this court, and entered its appearance. No service was had or attempted upon Harry R. Greenlee.
Messrs. Young Young, for plaintiff in error.
Messrs. Garfield, Cross, MacGregor, Daoust Baldwin, for defendant in error, The New York Life Insurance Company.
The question is whether the jurisdiction of the Court of Appeals to review the judgment was invoked. The allegations of the petition and the finding of fact of the trial court were to the effect that Harry R. Greenlee owned the policies and that they had value. The insurance company was joined as a party defendant for the sole purpose of enabling the court to make effectual any decree awarding alimony to the plaintiff in error out of Harry R. Greenlee's ownership of the policies. The insurance company, as between Harry R. Greenlee and the plaintiff in error, upon the issuance of the temporary injunction occupied the position of a stakeholder. Its interest in the outcome of the litigation did not extend beyond having it judicially determined to which of the two it might, without being in contempt of court or incurring liability to the other, deliver all or a portion of the property it held as such stakeholder. A modification or reversal of the judgment dissolving the temporary restraining order against it, and the judgment that the trial court had no jurisdiction to continue the injunction or make any further order with reference to the policies issued by it, could only affect it in so far as they might change the beneficiary of its obligation to pay. They could not enlarge or diminish its obligation; whereas, any modification or reversal of the judgment would necessarily affect the property right of Harry R. Greenlee in such policies, and either deprive him of the whole or a part of his interest therein, or subject him to a retrial of that issue. He was the real party in interest, against whom the proceeding in error was directed, just as he was the real party in interest against whom the original action was directed.
It is fundamental that the jurisdiction of a court to enter a final judgment affecting a personal or a property right is not self-executing; that it may only be exercised when properly invoked; that it cannot be invoked over a party without his consent except by actual or constructive service upon him. Independent of any statute upon the subject, a modification or reversal of the judgment of the trial court that had Harry R. Greenlee before it, which released the property of Harry R. Greenlee from the control of the court, by a reviewing court which did not have him actually or constructively before it, would violate the due process clause of the Federal Constitution and the due course of law clause of the state Constitution.
Section 12259, General Code, provides: "The proceedings to obtain such reversal, vacation, or modification [referring to the provision in the preceding section as to how final orders may be vacated, modified or reversed] shall be by petition in error, filed in a court having power to make the reversal, vacation or modification, setting forth the errors complained of. Thereupon a summons shall issue and be served or publication made, as in the commencement of an action. A service on the attorney of record in the original case shall be sufficient."
The section provides for that which both Constitutions require, relates to the mode of invoking the jurisdiction of the Court of Appeals, is a proper subject of legislation, and is unambiguous. The jurisdiction of the Court of Appeals to review, modify, or reverse the judgment of the common pleas court, as affecting the property of Harry R. Greenlee, was never invoked. The petition in error of the plaintiff in error, therefore, will not be entertained here. The petition in error is dismissed.
Petition in error dismissed.
MARSHALL, C.J., JONES, MATTHIAS, DAY and KINKADE, JJ., concur.
ALLEN, J., not participating.