Sears v. Weimer, 29843.

Citation55 N.E.2d 413,143 Ohio St. 312
Decision Date17 May 1944
Docket NumberNo. 29843.,29843.
PartiesSEARS v. WEIMER.
CourtUnited States State Supreme Court of Ohio

143 Ohio St. 312
55 N.E.2d 413

SEARS
v.
WEIMER.

No. 29843.

Supreme Court of Ohio.

May 17, 1944.


[55 N.E.2d 413]

Syllabus by the Court.

1. Where a judgment was obtained after service by publication and thereafter became dormant, such dormant judgment may not be revived through service by publication against a nonresident of the state.

2. A dormant judgment against a nonresident of the state may be revived through service by publication only where such judgment was obtained upon personal service originally made on the adverse party.

3. Personal service is to be made by delivering a copy of the summons, with the indorsements thereon, to the defendant personally. (Section 11286, General Code.)

4. Where service by publication only had been made on a nonresident defendant, the fact that such defendant thereafter filed an answer in which he asked for some affirmative relief, which was granted, will not authorize the revivor of a dormant judgment against such nonresident through service by publication under Section 11646, General Code.

5. Where the language of a statute is plain and unambiguous and conveys a clear and definite meaning there is no occasion for resorting to rules of statutory interpretation. An unambiguous statute is to be applied, not interpreted.


Appeal from Court of Appeals, Brown County.

Petition by Chestina Sears against Jacob Weimer to revive a judgment. The judgment was revived in the Court of Common Pleas, 10 Ohio Supp. 1, but, on appeal to the Court of Appeals, the judgment was reversed, and plaintiff appeals.-[Editorial Statement.]

Affirmed.

WEYGANDT, C. J., and HART, J., dissenting.

This case grows out of a proceeding to revive a dormant judgment upon service by publication made upon the defendant, a nonresident of the state.

The case was originally brought on March 24, 1924. Certain real estate then belonging to the defendant was seized by attachment. Service was made upon the defendant by publication only. Defendant filed an answer challenging the claim of plaintiff and also setting up an affirmative claim that plaintiff should be required to account for certain money and property belonging to defendant. There was no summons issued or served on plaintiff in respect of such affirmative relief sought by defendant. A jury was waived, the case was tried to the court on the issues, the plaintiff was required to account for property and money in the aggregate sum of $150 and judgment was rendered in favor of the plaintiff for a balance which the court found due her. The seized property

[55 N.E.2d 414]

was sold and the proceeds applied, but the judgment was not satisfied in full. The judgment became dormant.

On August...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT