Partin v. Hassan Motors, Inc., 17250.

• Decision Date: 19 July 1966
• Docket Number: No. 17250.,17250.
• Citation: 363 F.2d 104
• Parties: Herbert G. PARTIN and Mary L. Partin, Plaintiffs-Appellants, v. HASSAN MOTORS, INC., and Volkswagen of America, Inc., and Midwestern VW Corporation and Volkswagenwerk Aktiengesellschraft, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

363 F.2d 104 (1966)

Herbert G. PARTIN and Mary L. Partin, Plaintiffs-Appellants, v. HASSAN MOTORS, INC., and Volkswagen of America, Inc., and Midwestern VW Corporation and Volkswagenwerk Aktiengesellschraft, Defendants-Appellees.

No. 17250.

United States Court of Appeals Sixth Circuit.

July 19, 1966.

William H. Fry, Ralph F. Mitchell, Rendigs, Fry, Kiely & Dennis, Cincinnati, Ohio, McCaslin, Imbus & McCaslin, Cincinnati, Ohio, Robert G. McIntosh, McIntosh & McIntosh, Cincinnati, Ohio, on docket, for appellees.

James S. Irwin, Millikin, Reister, Fitton, Latimer & Persson, Hamilton, Ohio, Pierce E. Cunningham, Cunningham & Cunningham, Cincinnati, Ohio, for appellants.

Before O'SULLIVAN, PHILLIPS and CELEBREZZE, Circuit Judges.

PER CURIAM.

This is an appeal from an order granting a motion to dismiss as to two of the four defendants involved. Defendants-appellees moved to dismiss this appeal on the grounds that the judgment from which the appeal is taken is not a final and appealable order.

The United States District Court for the Southern District of Ohio, John W. Peck, J., entered the following order:

"This action has been brought by the plaintiffs to recover damages allegedly suffered when due to a defect therein their Volkswagen automobile, in which they were riding, suffered an accident. Joined as defendants are Hassan Motors, Inc. (the local Volkswagen agency which sold the vehicle in question to one of the plaintiffs), Midwestern VW Corporation (the distributor), Volkswagen of America, Inc. (the importer) and Volkswagenwerk Aktiengesellschraft (the manufacturer). The first two of these defendants have filed answers but the second two defendants have separately filed motions to dismiss as to them individually. It is with the two motions to dismiss that we are presently concerned.

"Both motions to dismiss are on the grounds that the moving defendants are corporations organized and existing under the laws of New Jersey and Germany, respectively, and that they have not properly been served with process in this action since neither is subject to service of process within this District.

"The affidavits filed in support of the motions established that neither movant had been doing business in the State of Ohio and service of summons could not therefore be accomplished under Section 1703.191, Ohio Revised Code.

"By supplemental memorandum plaintiffs argue that the present motions became moot on the enactment of Ohio Revised Code Sections 2307.38.2 and 2307.38

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