Gibbs v. Lemley

Gray, J. Tbis cause is in tbis court upon appeal from a judgment of tbe Court of Common Pleas of Lawrence County. Tbe question posed in tbis case arose in tbe following manner. Plaintiffs brought an action for a contest of tbe will of Mary Louise Jaynes. Clarence Wiley was named in tbe will as a devisee and legatee and was also named executor. In tbe caption of tbe complaint Clarence Wiley was not named as executor, although be was named in tbe caption as an individual defendant and in tbe body of tbe complaint as a legatee, devisee and as executor. Tbe trial court dismissed the complaint because all necessary parties were not before tbe court. Plaintiffs, feeling aggrieved, filed their notice of appeal, claiming error in tbe ruling of tbe trial court. Civ. R. 4 is as follows: “ (A) Summons: Issuance. Upon tbe filing of tbe complaint tbe clerk shall forthwith issue a summons for service upon each defendant. Upon request of tbe plaintiff separate or additional summons shall issue at any time against any defendant. , *221 “(B) Summons: form: copy of complaint. The summons shall be signed by the clerk, contain the name and address of the court and the names and addresses of the parties, be directed to the defendant, state the name and address of the plaintiff’s attorney, if any, otherwise the plaintiff’s address, and the times within which these rules or any statutory provision require the defendant to appear and defend, and shall notify him that in case of his failure to do so, judgment by default will be rendered against him for the relief demanded in the complaint. A copy of the complaint shall be attached to each summons. The plaintiff shall furnish the clerk with sufficient copies. “(0) Summons: plaintiff and defendant defined. For the purpose of issuance and service of summons ‘plaintiff’ shall include any party seeking the issuance and service of summons, and ‘defendant’ shall include any party upon whom service of summons is sought.” The clerk of courts only issued summons for the persons named in the caption, and therefore did' not issue summons for Clarence Wiley, as executor. He was described as executor of the estate in the body of the complaint. The Rules of Civil Procedure changed the duties of attorneys and clerks of courts. The burden now lies upon the clerk of courts to issue proper summons. Rule 10 (A) is as follows: ‘ ‘ Caption; names of parties. Every pleading shall contain a caption setting forth the name of the court, the title of the action, the case number, and a designation as in Rule (A). In the complaint the title of the action shall include the names and addresses of all the parties, but in other pleadings it is sufficient to state the name of the first party on each side with an appropriate indication of other parties.” In order to resolve this question we must determine the status of the caption of the case in regard to the body of the complaint itself. Our Civil Rules were patterned after the Federal Rules of Civil Procedure. The same question occurred in Hoffman v. Halden, 268 F. 2d 280. The court, at page 303, said: “* * * We do not consider this too important, in that *222 the caption of an action is only the handle to identify it and ordinarily the determination of whether or not a defendant is properly in the case hinges upon the allegations in the body of the complaint and not upon his inclusion in the caption.” We believe the philosophy of the Supreme Court to be that a litigant should win or lose on the merits of his case if at all possible. See McDonald v. Haught, 10 Ohio St. 2d 43. June 16, 1971, was the deadline for filing a suit to contest the will. All the other defendants, save Wiley, were served before June 16, 1971, and Wiley, as executor, was served on August 17, 1971. Wiley as an individual was served on June 3, 1971. The judgment of the lower court is reversed and the cause is remanded to the trial court for further proceedings according to law. Judgment reversed. Abele, P. J., concurs. Stephenson, J., dissents.