Elliott v. Lawhead

• Decision Date: 28 April 1885
• Parties: ELLIOTT v. LAWHEAD.
• Court: Ohio Supreme Court

43 Ohio St. 171

1 N.E. 577

ELLIOTT

v.LAWHEAD.

Supreme Court of Ohio.

Filed April 28, 1885.

Error to the district court, Licking county.

September 24, 1878, Lawhead commenced an action in the court of common pleas against Charlotte Elliott, a married woman, and Cyrus S. Gilbert, stating that there was due him from her the sum of $75 for services as her attorney, rendered by him at her request, in and about her separate estate and property; that said employment for such services was made by her in reference to and upon the faith and credit of her separate estate, which she thereby charged. It is alleged that her co-defendant, Cyrus S. Gilbert, has in his possession moneys of the said Charlotte, as her separate estate, which in equity ought to be subjected to the payment of plaintiff's demand. The prayer is to ascertain the amount due from said Charlotte, and that, if necessary, he may have judgment therefor, and to subject the money in Gilbert's hands to the payment thereof.

Gilbert made no defense. Mrs. Elliott filed the following motion ‘Charlotte Elliott, the defendant above named, by her attorneys, Charles Follett & Son, now comes for the purpose of this motion, and for no other purpose, and moves the court to strike the above-named case from the docket of said court, and the petition from the files, for the want of legal and proper service, and because the said court has no jurisdiction to the subject-matter of such action or of debt, and for the same reason that all proceedings herein by said plaintiff against her be dismissed.’ The motion was overruled, to which defendant excepted. Thereupon she filed the following demurrer: ‘The defendant Charlotte Elliott still protesting by her attorneys here against the jurisdiction of said court, or any intention to, in any manner, enter her appearance in this action, and saving and reserving to herself, now and at all times hereafter, all manner of advantage and benefit of exception and otherwise to the proceedings herein, she, by her attorneys, demurs to the petition of said plaintiff for the following reasons: (1) Because the said court has no jurisdiction of the person of said defendant Charlotte Elliott; (2) because the said court has no jurisdiction of the subject of said action; (3) that there is a misjoinder of parties defendant and causes of action; (4) that said action is not upon her written obligation, or any express promise or agreement; (5) that said petition does not state facts sufficient to constitute a cause of action against said defendant; (6) other causes that may be named are apparent in the case.’ This demurrer was also overruled, and the defendant answered, still persisting in her protest and objection that the court had no legal or equitable jurisdiction over the subject-matter or of her person.

The answer is: (1) An admission that Gilbert had in his hands money belonging to her, and that she is a married woman, and a denial of each and every other allegation of the petition. (2) That, as a married woman, she is entitled to the benefit of exemptions to heads of families, in the state of Ohio, and that her separate property, including moneys in the hands of said Gilbert, does not exceed in value the sum of $500, and that she is legally entitled to hold the same exempt from being applied to the satisfaction of plaintiff's claim; but as she was a non-resident of the state, this defense is not relied on. (3) That on the thirteenth of July preceding this action, plaintiff brought an action against her, before a justice of the peace, to recover the same claim, and on the seventeenth of the same month dismissed said action. (4) That on the seventeenth of July aforesaid he brought another action against her and her husband, John Elliott, to recover against her on the same claim, which, on motion of this defendant, and upon full hearing, was dismissed. (5) That said Lawhead, at the time of the commencement of this action, had no lien, claim, right, or title to the money in the hands of said Gilbert, and that she, since this action is commenced, assigned and transferred to Charles Follett, in payment of a claim due to him, the money in Gilbert's hands.

A reply was filed putting in issue the allegations of said defenses. In each of these several defenses the same objection is made and reserved as to the jurisdiction of the court as is found in the motion and demurrer. On trial the court found there was due the plaintiff the sum of $50 and interest, and ordered Gilbert to pay the money in his hands into court, to be applied to the payment of plaintiff, and the balance, if any, to be paid to Charles Follett, who had become a defendant, and asserted his right to the money. Thereupon defendants gave notice of appeal, and the court fixed the amount of the undertaking therefor. The case was again tried in the district court, and resulted in a finding in favor of the plaintiff for the sum of $75, and a judgment that said services were rendered by the plaintiff for Mrs. Elliott ‘upon the full faith and credit of her separate estate, which she intended to charge for the reasonable value of said services,’ and ordered that Gilbert pay the money into court to be applied to the payment of costs and the satisfaction of plaintiff's claim.

Up to this time no service of summons nor service by publication was made a matter of record. In fact, service by summons was not...