Opinion
No. 39282
Decided June 30, 1965.
Appeal — Final order — Overruling motion to quash service of summons — Not final appealable order, when — Venue — Action against state Director of Highways.
APPEAL from the Court of Appeals for Harrison County.
This proceeding in mandamus was instituted in the Court of Appeals for Harrison County, seeking to compel the respondent, Director of Highways, to institute proceedings to appropriate certain property of relator located in Harrison County. Summons was issued to the Sheriff of Franklin County for service on the respondent.
The respondent filed a motion to quash the service, on the ground that the action should have been brought in Franklin County. The court overruled the motion.
This appeal is prosecuted from the order overruling the motion. The case is presently before this court on the motion of relator to strike the notice of appeal and dismiss the appeal.
Mr. Thomas F. Joseph and Mr. Steven E. Cichon, for appellee.
Mr. William B. Saxbe, attorney general, Mr. I. Charles Rhoads and Mr. Harry N. Kandel, for appellant.
The motion is well taken. The order overruling the motion to quash service of summons is not a final appealable order as defined by Section 2505.02, Revised Code. Respondent is not precluded by the overruling of the motion to quash but may make a full defense in the action without waiving his objection to jurisdiction. State, ex rel. Rhodes, Aud., v. Solether, Judge, 162 Ohio St. 559.
The issue as to venue has been answered in the case of State, ex rel. Barber, Pros. Atty., v. Rhodes, Aud., 165 Ohio St. 414. The case should be brought in Franklin County against the respondent.
Appeal dismissed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and KERNS, JJ., concur.
KERNS, J., of the Second Appellate District, sitting for BROWN, J.