Ksenich v. Lorain Street Ry Co.

WASHBURN, J. Here we have.two distinct corporations, 'which, so far as the evidence discloses, have no relation or connection with each other, one having to do with the transaction which is the basis of the suit, and the other, so far as the evidence shows, having no connection therewith. The Railroad Co. was not named in the petition as a defendant, and there was no service upon an agent of the Railroad Co. as such, and the Railroad Co. did not do anything to enter its appearance in the suit. The evidence does not warrant the finding that it was defending the suit in the name of the Railway Co. or that it was responsible for the mistake made by plaintiff. The mere fact that the summons against the Railway Co. was served upon an agent of the Railroad Co., is not sufficient to constitute service, under the law, upon the Railroad Co. Such summons did not puroort to be against the Railroad Co., and there is no evidence that it did anything in response to said summons, and hence the court had no jurisdiction over it. There was before the court a defendant company over which the court had jurisdiction, to-wit, the Railway Co., which was named in the petition as defendant, and while the service upon ,it was subject to a motion to quash, it waived that defect by answering, as it had a right to do, but it did not mislead the plaintiff, either by its answer or in the opening statement at the trial, and the plaintiff had ample opportunity to withdraw a juror and bring the right party before the court in the manner provided by law; Instead of doing that, plaintiff (under the most favorable construction of his application) insisted that he hád a right to substitute, for a party properly sued and in court, a party not sued and not in court, and we think the trial judge did not err in holding that he had no such right. PARDEE, PJ, and FUNK, J, concur.