Mattone v. Argentina

• Decision Date: 11 March 1931
• Docket Number: 22414
• Citation: 123 Ohio St. 393,175 N.E. 603
• Parties: Mattone v. Argentina.
• Court: Ohio Supreme Court

175 N.E. 603

123 Ohio St. 393

Mattone v. Argentina.

No. 22414

Supreme Court of Ohio

March 11, 1931

Common pleas court - Jurisdiction fixed by legislature - Section 4 Article IV, Constitution - Court cannot refuse jurisdiction of transitory tort action, when - Nonresident sued nonresident, served personally in county where jurisdiction invoked - Section 11276, General Code.

1. In this state, pursuant to constitutional provision, Article IV Section 4, the jurisdiction of the common pleas court is fixed by legislative enactment.

2. Under existing statutes, the courts of this state have no discretion to refuse to entertain jurisdiction of a transitory tort action brought by a non-resident against a non-resident upon whom pursuant to Section 11276, General Code, personal service is had in the county wherein such jurisdiction is sought to be invoked.

This is a proceeding to reverse the Court of Appeals of Jefferson county. The original action was begun in the court of common pleas of that county, where the plaintiff in error, Mario Mattone, filed his petition alleging that on or about October 16, 1927, he was an invited guest in an automobile owned and operated at that time by the defendant in error, Charles Argentina; and that, by reason of the negligent operation thereof by the defendant in error, he (Mattone), while in the exercise of due care himself, was seriously and permanently injured.

The petition alleged that the plaintiff and defendant below were both, at the time the petition was filed, and also at the time of the injury, residents of the state of West Virginia and that the accident out of which the cause of action arose occurred in that state. Argentina, defendant in error, was properly and legally served with summons by the sheriff of Jefferson county, Ohio, in said county. Thereupon Argentina defendant below, disclaiming any intention of entering his appearance moved the court to set aside the service of summons for the reason that "neither plaintiff nor defendant were residents of the state of Ohio." This motion was overruled, and exception preserved.

Later a motion was made by the defendant to require the plaintiff to amend his petition in several particulars, part of which motion was sustained and part overruled. Upon said amended pleading being filed, a demurrer was filed thereto by the defendant below, upon the ground that the court was without jurisdiction of the subject of the action. This de- murrer was sustained, and, the plaintiff not desiring to plead further, final judgment was rendered. Error was prosecuted to the Court of Appeals, in which court the judgment of the common pleas court was affirmed, upon the ground that it was discretionary with the trial court to entertain such jurisdiction, and error is now prosecuted to this court to reverse such judgment.

Mr. John D. Gardner and Mr. Harry B. Chalfant, for plaintiff in error.

Messrs. Kerr & McMaster, for defendant in error.

DAY, J.

The sole question for determination in this controversy is whether or not the common pleas judge in any county in this state, in a transitory tort action, has jurisdiction to hear and determine such controversy where both the plaintiff and the defendant are nonresidents of Ohio, the cause of action having arisen outside the state of Ohio, and it not appearing that there is property of or debts owing to the defendant in any county in Ohio, but where proper and lawful service of summons is made upon the defendant in a county of the state in accordance with Section 11276, General Code.

A determination of this case requires us to review the history of this section. It was originally adopted with the Civil Code in 1851(51 Ohio Laws, 65), and is Section 52 of the Code of Civil Procedure, then adopted. It read as follows:

"An action other than one of those mentioned in the first three sections of this chapter, against a non-resident of this state or a foreign corporation, may be brought in any county in which there may be property of, or debts owing to, said defendant, or where said defendant may be found; but if said defendant be a foreign insurance company, the action may be brought in any county, where the cause or some part thereof, arose."

With slight variation in punctuation and phraseology, it appears in Swan & Critchfield's Statutes at page 960; in the Revised Statutes of 1880, as Section 5030; in 94 Ohio Laws, 270, as Revised Statutes, Section 5027; and in 95 OhiO Laws, 203, as Revised Statutes, Section 5027 (Section 5027, Revised Statutes of 1880, is now Section 11273, General Code). As it appears in the General Code to-day, Section 5030, Revised Statutes of 1880, is Section 11276, and reads as follows:

"An action other than one of those mentioned in sections eleven thousand two hundred and sixty- eight, eleven thousand two hundred and sixty-nine, eleven thousand two hundred and seventy and eleven thousand two hundred and seventy-one against a nonresident of this state, or a foreign corporation, may be brought in any county in which there is property of, or debts owing to the defendant, or where such defendant is found, or where the cause of action or some part thereof, arose."

It is argued that the words "such defendant" apply to a defendant who has property or debts owing in any county, in which event he may be sued in the county where such property or debts owing are located, or in any other county of the skate where he may be found; in other words, that a non-resident defendant who has property or debts owing him in this state may be sued in any county where "found."

Such construction, in order to reach a nonresident defendant, would require that there be prop- erty of or debts owing to the defendant in some county of the state. We cannot accept this view. Surely no citizen of this state, in order to sue a nonresident defendant found in this state, would first have to locate property or debts owing to the defendant in the state. Nor can a non-resident be required so to do under the statute.

Our conclusion is that, where there is personal service upon a nonresident defendant in a transitory tort action, which may have arisen in another state, such service is good, and the courts of this state would have jurisdiction even though the action be brought by a nonresident.

Much is said in argument and...