Matthews v. Vandervoort

Allread, J. This action was brought against, and summons issued and served upon, the defendant, Louis Vandervoort, as an adult. Vandervoort appeared by counsel and moved to quash and set aside the service upon the ground that he was a minor and the service not made as provided in Section 11291, General Code. Following the filing of this motion, an alias or supplementary summons was issued against B. B. Vandervoort and Mrs. B. B. Vandervoort, as father and mother of Louis Vandervoort, a minor. Subsequently a guardian ad litem was appointed, the motion to quash was sustained, and the guardian ad litem filed an answer. The court vacated the former entry sustaining the motion to quash upon the ground that the entry had been made upon the basis of an agreement to enter the defendant’s appearance, and the court was of opinion that entry of ap [175] pearance could not lawfully be made. The case then came on to be heard upon the motion to quash he service, and the motion was sustained, to whici the plaintiff excepted. Error is prosecuted to this court. The question, therefore, is whether summons and service solely upon the minor may, before any action is taken by the court prejudicial to the minor, be supplemented and amended by a service, upon the father and mother. This is á new question in this state, and no direct authority has been found elsewhere. Tracing the history of service upon minors, we find that originally service upon minors over fourteen years of age could be made as upon adults. In 1902 the statute was so amended as to require the service of summons upon all minors to be made not only upon the minor but upon the guardian, parent, or other party with whom the minor resides. We think that notice to the minor is the dominant purpose of the statute. The notice to the guardian, parents, etc., was supplementary, and intended to promote the interests of the minor. This statute should be construed with a view of promoting the reason and spirit thereof, and not with over-technical nicety. Where the service is upon the minor alone, and where the court has taken no action prejudicial to the minor, we see no reason to prevent the plaintiff from supplementing the defective service on the minor alone by a proper notice to the guardian or parents, as the case may be; The case of Paulin v. Sparrow, 91 Ohio St., 279, does not reach the question here, as it involves, merely an amendment to support a valid service. [176] The case of Kalb, Gdn., v. German Savings & Loan Society, 25 Wash., 349, although not directly in point, shows liberality in the construction of a similar statute in that state in respect to service on minors-. A summons was issued against the minor and another one isued against the father and mother. Both were issued -concurrently and served contemporaneously. Nevertheless the court upheld the issuing of the two summonses as a substantial conformity with the statute. In this- case the summonses were not issued contemporaneously, but the rule day for answer in the summons against the father and mother conforms to the statute for original service and allows them ample time to protect the interests of their minor son. 'The fact that the rule day for answer was extended by the latter summons in no way prejudiced the minor defendant, as the court took no action in the meantime against him. We cannot escape the conclusion that the original summons against the minor, and the supplementary summons against the father and mother, and the service thereon, conferred personal jurisdiction of the minor upon the court, and that the quashing of the service was erroneous. Judgment reversed and cause remanded with instructions to overrule the motion to quash the service. Judgment reversed, and canse remanded. Kunkle and Perneding-, JJ., concur.