Dzema v. Pittsburgh & Lake Erie Rd.

Levine, J. In the trial court, after the case proceeded to a hearing on the merits, various defendants named in the action were dismissed from the case, and, at the close of all the plaintiff’s testimony, other defendants having been dismissed from the case, it stood as an action by plaintiff against one defendant only, namely, the Pittsburgh & Lake Erie Railroad Company. The remaining defendant thereupon moved to dismiss the action as to it, by reason of the court’s lack of jurisdiction over defendant. The defendant relied upon Section 11282, General Code, which permits service of summons against a nonresident of the county, if the action is rightfully brought against another of the joint defendants named in the petition, and it was argued that, since no cause of action was proven against any of the other resident defendants, the trial court is therefore without jurisdiction to proceed with the action against such nonresident defendant. The trial court sustained the motion and dismissed the case against the Pittsburgh & Lake Erie Railroad Company for lack of jurisdiction over its person. Error is prosecuted to this ruling of the common pleas court. It is contended in behalf of the plaintiff in error that, when an action is brought in good faith against joint defendants, some of whom are *290 residents of Cuyahoga county, and others of whom are nonresidents of the county, certain acts and steps taken by the nonresident defendants will be construed under the law as a waiver and a submission to the jurisdiction of the common pleas court of Cuyahoga county. It is conceded in this case that the allegations of the petition set forth a cause of action in which all the defendants, resident and nonresident, are rightfully joined, that, in so far as it appears from the face of the petition, there is no lack of jurisdiction in the common pleas court of Cuyahoga county to proceed against all the defendants, including the Pittsburgh & Lake Erie Railroad Company, nonresident of this county. In the case of Drea v. Carrington, 32 Ohio St., 595, this matter is under discussion, and it is therein held: “1. An action to recover damages under an act requiring compensation for causing death by wrongful act, neglect, or default (2 S. & C. 1139), may be brought in any county in the state where the defendant, or any one of the defendants, resides or may be served. “2. In such case, where there are several defendants, against all of whom good cause of action is alleged, some of whom are served in the county, and others reside and are served in another county than that where the suit is brought, the validity of the service of summons in such other county, and the jurisdiction of the court over the persons of the nonresident defendants, depends upon the truth of the allegations of the petition. “3. "Where the allegations of the petition upon *291 its face make a case in which all the defendants are rightfully joined, and service is made on one or more in the county where the suit is brought, and on the others in another county, the question of the jurisdiction of the court over the persons of the defendants served in such other county, must be raised by answer, under Sections 87 and 89 of the civil code. “4. Where the nonresident defendants file a motion to dismiss for want of jurisdiction over them, and support it by a verified answer, as provided by Section 89 of the civil code, traversing the allegations of the petition, by showing that such nonresidents are not rightfully joined as defendants, the issue of fact thus presented, in an action for the recovery of a money judgment, is one which either party has a right to have tried by a jury. “5. In such a case, it is error for the court, without the assent of the parties, to hear and determine this issue.” In the opinion, on page 603, the court said: “Where a resident and a nonresident of the county are sued as joint contractors, and service is made on the latter in his own county, and on the trial it turns out that the resident defendant is not liable, judgment can not be rendered against the nonresident, because the jurisdiction of the court over his person depended on his being rightly joined with the resident defendant, and as the verdict found he was not liable, there was no authority to summon the nonresident to answer out of the county where he was served. “In the last two cases, like the one at bar, the jurisdiction of the court over the nonresident de *292 fendants depended upon the facts in issue, which could only be determined in the usual way. ’ ’ In that case the jurisdiction of the court is challenged by a specific allegation in the answer, and it is therein held that in such event the question of jurisdiction becomes an issue of fact to be determined by the jury and not by the court. It is quite clear from the above statement of the law that the defendant, the Pittsburgh & Lake Erie Railroad Company, nonresident of this county, was in no position to legally object to the jurisdiction of the court until it had been determined that there was no cause of action against any of the resident defendants. The latest pronouncement of the Supreme Court of Ohio relating to this subject is the case of Bucurenciu v. Ramba, 117 Ohio St., 546, 159 N. E., 565. We quote from the syllabus as follows: “1. Where the question of the jurisdiction of the court over the person of the defendant is one of fact, not appearing upon the face of the record, objection made thereto by answer of the objecting defendant as his first act in the case is objection at the first opportunity, and saves an exception to the jurisdiction. “2. Where the jurisdiction of the court to acquire jurisdiction over the person of the defendant by service of summons in a foreign county appears only by the allegations of the petition, a general denial filed by such defendant challenges such jurisdiction, and under such general denial such defendant may at the same time and throughout the trial question both the jurisdiction and the merits of the canse. ’ ’ *293 In the opinion of the court, at page 549 (159 N. E., 586), the following pertinent language appears: “The general rule seems to be that when the defendant becomes an actor in the case, without objecting to the jurisdiction, he enters his appearance in the ease and may not thereafter object to the jurisdiction over his person. But the application of that rule does not aid in the determination of this case, since the question whether he objected to the jurisdiction must be determined by the effect of the general denial, and upon that subject the general rule seems to be that * * * ‘where the lack of jurisdiction does not appear on the face of the record, the defendant may unite a plea to the jurisdiction with his other defenses without waiving his right to insist on the lack of jurisdiction of the court.’ 2 Ruling Case Law, 331.” Quoting further from the court’s opinion: “The general denial answer, being effective to put the plaintiff upon proof of the essential averments of her petition, and the averment of joint liability being one of the essential averments thereof, it was a direct challenge to the jurisdiction. ’ ’ We have examined the record in order to determine whether any steps were taken by defendant, the Pittsburgh & Lake Erie Railroad Company, nonresident defendant, which would in law amount to a waiver of the jurisdictional question and a submission to the jurisdiction of the common pleas court of Cuyahoga county. It appears that the original petition was filed on May 29, 1926, against certain named defendants, to wit, the McClintic Marshall Company, the New York *294 Central Railroad Company, and the River Terminal Company, all of whom were residents of the county of Cuyahoga. Proper service was obtained upon these three corporations, and answers were filed by them. Almost a year later, on March 14,1927, leave was granted to plaintiff to file an amended petition instan ter, making new parties defendant. The new parties joined as defendants in this case were the Pennsylvania Railroad Company, upon whom service was secured in Cuyahoga county,-and the Pittsburgh & Lake Erie Railroad Company, the defendant in error herein, which, being a nonresident of Cuyahoga county, was served in Mahoning county by virtue of Section 11282, G-eneral Code, on the ground that it was jointly liable in tort with the other defendants, residents of Cuyahoga county, where suit was brought. On May 11, 1927, the answer of the Pittsburgh & Lake Erie Railroad Company was filed, said answer being a general denial. Thereafter a stipulation signed by the attorney for plaintiff in error herein was obtained, permitting the Pittsburgh & Lake Erie Railroad Company to file an amended answer. This amended answer, together with the stipulation, was filed with leave of court on July 7, 1927. This amended answer entered a general denial of all the allegations of plaintiff’s petition upon which claims were predicated as against the Pittsburgh & Lake Erie Railroad Company. The case went to trial on the pleadings and the evidence, and after the trial had been in progress for some time, it was discovered that plaintiff had made a mistake in the name of the principal defendant in the case, to wit, the McClintic Marshall Company, of Cuyahoga county, *295 when the real fact was that the company to be sued should have been the McClintic Marshall Construction Company, a Pennsylvania corporation. The McClintic Marshall Company, principal defendant, was thereupon dismissed from the action. As the ease proceeded further, it appeared that there was no cause of action against either the New York Central Railroad Company or the Pennsylvania Railroad Company, and accordingly these two railroad companies were dismissed from the action and the trial proceeded against the two remaining defendants, to wit, the River Terminal Railroad Company and the Pittsburgh &. Lake Erie Railroad Company. At the close of all plaintiff’s testimony it appeared that the plaintiff had failed to show any cause of action against the River Terminal Railroad Company, and the court thereupon directed a verdict in its favor. At that stage of the case, the only remaining defendant was the Pittsburgh & Lake Erie Railroad Company, nonresident of Cuyahoga county. It was at this point that defendant, the Pittsburgh & Lake Erie Railroad Company, moved that the action against it be dismissed for lack of jurisdiction over its person. Prom this recital of the steps taken in the case, we fail to see, under the ruling of the Supreme Court of Ohio, above set forth, wherein the defendant, the Pittsburgh & Lake Erie Railroad Company, did anything which would in law constitute a waiver and a submission to the jurisdiction of the court. Quite the contrary, it appears to us clear that every step taken by it was in accordance with the law laid down by the Supreme Court of Ohio. *296 We find no error in the judgment of the common pleas court, and the same will therefore be affirmed. Judgment affirmed. Sullivan, P. J., and 'Vickery, J., concur.