Lincoln Tavern, Inc. v. Snader

• Decision Date: 14 March 1956
• Docket Number: No. 34371,34371
• Citation: 59 O.O. 74,165 Ohio St. 61,133 N.E.2d 606
• Parties: , 59 O.O. 74 The LINCOLN TAVERN, Inc., Appellee, v. SNADER et al., Appellants; Dougherty, Appellee.
• Court: Ohio Supreme Court

Page 61

165 Ohio St. 61

133 N.E.2d 606, 59 O.O. 74

The LINCOLN TAVERN, Inc., Appellee, v. SNADER et al., Appellants; Dougherty, Appellee.

No. 34371.

Supreme Court of Ohio.

March 14, 1956.

Syllabus by the Court

1. A proceeding to vacate a judgment on the ground that it is void for want of jurisdiction is not subject to the provisions of Section 2325.01 et seq., Revised Code, which apply to the vacation or modification of only those judgments which are merely voidable and not those which are void ab initio.

2. Statutes providing for constructive service must be strictly complied with, and, where the record reveals a failure to take a step required by such statutes, the court is precluded from acquiring jurisdiction in the absence of an entry of appearance, and a judgment rendered upon such faulty service is void ab initio.

3. Where it is apparent on the face of the record that all the statutory steps have not been complied with in attempting a service by publication, and that there has been no entry of appearance, a court is without jurisdiction, a judgment based upon such faulty service is void ab initio, and a sale of real property pursuant to such judgment is invalid and will be set aside even though such property is in the hands of a third person who is a purchaser in good faith.

On April 23, 1952, plaintiff filed a petition, praecipe and affidavit in attachment against Harry and Florence Snader, herein called the defendants, seeking a declaratory judgment terminating a lease and to recover advance rent paid under the lease. Since the defendants were nonresidents of Ohio at that time, living in Albuquerque, New Mexico, the plaintiff filed an affidavit for service by publication wherein it is recited that the defendants were nonresidents of the state of Ohio, and that their address was Albuquerque, New Mexico. Service by publication was then made in the North Canton Sun, but no marked copy of said publication was ever mailed to the defendants at the address set forth in the affidavit, nor was any entry that such had been done, as required by Section 11294, General Code, Section 2703.16, Revised Code, filed on the appearance docket. The defendants did not appear and a default judgment against them was entered. Subsequently, the lots attached by the plaintiff were sold at a sheriff's sale, where plaintiff purchased them. It later sold them to one Dougherty.

A few months later the defendants, having learned of such judgment and sale, filed a petition to vacate them and to have the title to the lots quieted in them on the ground that such judgment is invalid for the reason that the affidavits for service by publication are false and that the service was never completed, and tendered an answer.

The Court of Common Pleas, upon the filing of such petition to vacate, issued an order against the present owner of the lots, restraining him from disposing of them during the pendency of the proceeding to vacate.

Upon the hearing to vacate the court found:

'* * * that service of summons by publication in this matter was not in compliance with the law and is therefore defective * * *.

'* * * that the plaintiff, the party making the service, failed to deliver copies of the newsaper publication with proper postage to the clerk of the court, and that no marked copy of said publication was mailed to said defendants and no entry therof was made by the clerk on the appearance docket of the court.

* * *

* * * 'The court refuses to vacate and set aside the sale of the real estate described in plaintiff's petition and finds that said judgment and sale of the said real estate is not void but voidable only * * *.'

The defendants appealed from that order to the Court of Appeals, which dismissed the appeal on the ground that there is no final order.

The cause is before this court upon the allowance of a motion to certify the record.

James W. Anderson and Carl Shifman, Canton, for appellants.

Joseph N. Bernabei and Leroy J. Contie, Jr., Canton, for appellees.

MATTHIAS, Judge.

The immediate question presented by this appeal is whether the Court of Appeals erred in dismissing the appeal, on the ground that the action of the trial court, in finding the judgment in issue to be voidable rather than void and in refusing to vacate the sale made thereunder, is not a final order.

To determine this issue, we must consider, first, the nature of the defendants' attack on said judgment and, second, the status of the judgment.

The plaintiff filed a petition to vacate the judgment, on the ground that it is void due to the failure of the service of process, and tendered an answer to the original cause. Although on its face this was an attempt to follow the statutory procedure for the vacation of judgments, it was in effect a direct attack on such judgment, on the ground that the court did not have jurisdiction, and that as a result the judgment is void ab initio.

Section 11631 et seq., General Code, Section 2325.01 et seq., Revised Code, provide for the vacation and modification of judgments which are voidable, not those which are void ab initio, and, although this has the semblance of a statutory proceeding, its objective could have been accomplished by a motion to quash, and, the proceeding being a direct attack on the judgment, it was not necessary that the defendants tender an answer.

As was held in Hayes v. Kentucky Joint Stock Land Bank, 125 Ohio St. 359, 181 N.E. 542:

'1. Where a personal judgment is entered by default against a defendant upon a showing of service of summons upon such defendant by leaving an attested copy at the usual place of residence of such defendant, upon a petition being filed after term to vacate such judgment, it is competent to contradict the record showing service and to prove that the place where the attested copy was left was not in fact defendant's 'usual place of residence.'

'2. Such challenge is a direct attack upon the judgment, and it is not necessary in such petition to plead or at the hearing to prove that defendant has a valid defense to the action.

'3. A petition praying the vacation of the judgment filed in the original action does not constitute an entry of appearance.'

It is axiomatic that for a court to acquire jurisdiction there must be a proper service of summons or an entry of appearance, and a judgment rendered without proper service or entry of appearance is a nullity and void. Thus, an attack on a judgment on the ground that there was no service of process constitutes a direct attack on such judgment, rendering unnecessary the answer required under the statutes relating to the vacation of a judgment which is merely voidable. Thus, the tendering of the unnecessary answer did not constitute an entry of appearance so as to vest the court with jurisdiction over defendants in the original action. It is, of course, well settled that the filing of a petition to vacate does not constitute an entry of appearance. See the Hayes case, supra.

It is now necessary to consider the validity of the service in this case. Service was attempted by publication. The plaintiff complied with all requirements as to such service except the mailing of the publication and the entry thereof as required by Section 11294, General Code, which reads:

'When in a case in which service may be made by publication, the residence of the defendant is known, it must be stated in the publication. Immediately after the first publication, the party making the service shall deliver copies thereof, with the proper postage, to the clerk of the court who shall mail a copy to each defendant, directed to his place of residence named therein, and make an entry thereof on the appearance docket. In all other cases the party who makes the service, or his agent or attorney, before the hearing, must make and file an affidavit that the residence of the defendant is unknown and can not with reasonable diligence be ascertained.'

Although it is necessary to provide a method whereby persons having claims against nonresidents owning property in Ohio may enforce such claims, it is equally as important to protect the rights of the nonresidents, and, if at all possible, to see that they are notified of any actions pending against them.

It is true that many actions are determined without the defendants having actual notice thereof, and such judgments may be valid; but it is equally true that it is necessary that the plaintiff in such an action strictly comply with the statutes providing for publication so that the nonresident defendant may, if possible, have actual notice of the proceeding against him.

The General Assembly, to safeguard the rights of nonresident defendants, has provided that where a defendant's residence is known the plaintiff must mail a copy of the publication to him. This confers a substantial right on all nonresident defendants, and a compliance with such provision is mandatory since, if it were not followed, such defendants would in all probability acquire no knowledge of the proceedings against them.

Therefore, the failure of the plaintiff herein to send notice to the known address of the defendants was a failure to follow a mandatory requirement and resulted in a void service and a void, not voidable, judgment. The court acquired jurisdiction over neither the defendants nor their property.

Having determined that the service herein was defective and the judgment rendered thereupon void, we must now determine whether the trial court erred in not vacating the sale thereunder.

Courts are loath to disturb the title to real estate in the hands of third persons. Thus, in Moor v. Parsons, 98 Ohio St. 233, 120 N.E. 305, the court held:

'Where, in an action to foreclose a mortgage the record whereof shows the proceeding valid and regular in all respects, a defendant was served by publication in complete conformity with the provisions of the statute applicable thereto, and the court found said defendant duly...