Osborn v. Lidy

• Decision Date: 27 February 1894
• Citation: 51 Ohio St. 90,37 N.E. 434
• Parties: OSBORN et al. v. LIDY.
• Court: Ohio Supreme Court

37 N.E. 434

51 Ohio St. 90

OSBORN et al. v. LIDY.

Supreme Court of Ohio.

February 27, 1894

Error to circuit court, Holmes county.

Action by John Lidy in the court of common pleas, against Hubert D Osborn and Robert Graham, administrators of Truman Osborn. Judgment for the plaintiff, which was affirmed by the circuit court, and defendants bring error. Affirmed.

Syllabus by the Court

Under the provisions of section 5031, Rev. St., actions against an executor, administrator, guardian, or trustee may be brought either in the county where he resides or was appointed, or in which personal service of a summons may be obtained upon him.

Vorhees & Hunt and C. F. Vorhees, for plaintiffs in error.

Critchfield & Huston and W. Stilwell, for defendant in error.

WILLIAMS, J.

On the 25th day of April, 1885, the plaintiffs in error, Hubert D Osborn and Robert Graham, were appointed by the probate court of Coshocton county administrators with the will annexed of the estate of Truman Osborn, deceased. They were both residents of that county, and, after qualifying, entered upon the execution of the trust. Afterwards, John Lidy, the defendant in error, presented to them, for allowance, a claim for an alleged indebtedness of Truman Osborn to him, which they rejected on the 15th day of June, 1888. Lidy then brought suit upon his claim in the court of common pleas of Holmes county, where personal service of summons was obtained upon each of the administrators. They filed their motion to dismiss the action on the ground that when it was commenced and the service obtained, they resided in Coshocton county, where their appointment as administrators was made; their claim being that they were not liable to suit in any other county, and therefore the service of the summons upon them in Holmes county did not give the court jurisdiction over them. They disclaimed, in their motion, any intention of ‘ entering an appearance upon the merits of the case,’ or for any purpose other than making their objection to the jurisdiction of the court, upon the ground stated. The motion was overruled, an exception noted, and a bill of exceptions duly taken, showing that the facts upon which the motion was based were established to the satisfaction of the court. The defendants then answered, setting up as their first defense the facts stated in the motion, and alleging that by reason of them the court had no jurisdiction of the defendants. A demurrer to this defense was sustained. The answer contained other defenses, that went to the merits of the plaintiff's claim. It is not important to state them here. Upon the issues raised by them, and the reply, the cause was tried, and judgment recovered by the plaintiff, which was affirmed by the circuit court.

The principal question presented is whether, under our present legislation, an action against an administrator can be prosecuted in any county in which personal service of the summons can be obtained, or must it be brought in the county where he was appointed or resides? The answer to the question is found in section 5031 of the Revised Statutes, which reads as follows: ‘ Every other action must be brought in the county in which a defendant resides or may be summoned except actions against an executor, administrator, guardian or trustee, which may be brought in the county wherein he was appointed or resides, in which cases summons may issue to any county.’ Two views of this section are advanced in argument. One excludes actions of the kind mentioned in the exception from the operation of the preceding clause, and limits the places where they may be brought to the county in which the defendant was appointed or resides; and the other gives the exception the effect of extending the venue of such actions so as to permit them to be brought in the county where the defendant was appointed, as well as in the county in which he resides, or may be summoned. The section follows those which provide where actions of a local nature, and actions against certain classes of corporations and companies, shall be brought; and by the words ‘ every other action,’ in the section quoted above, is meant all actions, other than those mentioned in the preceding sections. The general provision of the section requires all such actions to be brought in the county where the defendant resides or may be summoned; and, but for the exception, actions against executors, administrators, guardians, or trustees could not be brought elsewhere. The exception was designed, we think, to take actions against them out of that requirement, and permit them to be brought...