Pilgrim Distributing Corp. v. Galsworthy, Inc.

• Decision Date: 10 March 1947
• Citation: 74 N.E.2d 579,79 Ohio App. 529
• Parties: PILGRIM DISTRIBUTING CORPORATION v. GALSWORTHY, Inc.
• Court: Ohio Court of Appeals

74 N.E.2d 579

79 Ohio App. 529

PILGRIM DISTRIBUTING CORPORATION v. GALSWORTHY, Inc.

Court of Appeals of Ohio, First District, Hamilton.

March 10, 1947

Syllabus by the Court.

1. An order overruling a motion to discharge an attachment is an order affecting a substantial right in a special proceeding from which an appeal on questions of law may be taken to the Court of Appeals.

2. A summons is issued when it is delivered to the sheriff for service.

3. An action is not begun by filing a petition and causing the clerk to prepare a summons so long as the summons remains undelivered to the sheriff, and an order of attachment issued before such delivery is premature and void.

4. An affidavit in which it is recited that the defendant is a foreign corporation and a nonresident of and not domiciled in the state of Ohio does not negative compliance by the defendant with the laws of Ohio, imposing conditions upon foreign corporations for permission to do business within the state and thereby securing exemption from attachment on the ground that it is a foreign corporation or a nonresident of the state.

Dinsmore Shohl, Sawyer & Dinsmore and F. B. McConaughy, all of Cincinnati, for appellant.

Aubrey M. Foiles, Harmon, Colston, Goldsmith & Hoadly, and Henry B. Street, all of Cincinnati, for appellee.

MATTHEWS, Presiding Judge.

This is an appeal on questions of law from an order of the Common Pleas Court overruling a motion to discharge an attachment, and the appellee raises in limine the question of the jurisdiction of this court, as conferred by Section 6, Article IV of the Ohio Constitution, to review such an order.

Starting with Farmers Bank & Trust Co. v. Cooper Tire & Battery Co., 37 Ohio App. 54, 173 N.E. 743, this court has held in a series of cases that an order overruling a motion to discharge an attachment is a final order affecting a substantial right and that courts of appeal have jurisdiction to review such an order. See Price Hill Colliery Co. v. Old Ben Coal Corporation, 38 Ohio App. 151, 175 N.E. 755; Devine v. Detroit Trust Co., Recr., 52 Ohio App. 446, 3 N.E.2d 1001; Toledo Paper Box Co. v. Jay Lane, Inc., 20 O.L.A. 334, and Hamilton v. Temple, 60 Ohio App. 94, 19 N.E.2d 650.

We have reconsidered the reasons assigned for our holdings in those cases, and have reached the same conclusion. As long ago as 1855, the Supreme Court in Watson & Co. v. Sullivan, 5 Ohio St. 42, decided that:

'An order of the Court of Common Pleas, discharging an attachment against a resident as to the whole of the property attached, is an order affecting a substantial right made in a special proceeding which may be reversed, pending the action in which the order of attachment was made.'

And in the opinion by Judge Kennon, who was one of the authors of the Code of Civil Procedure, the subject of the meaning of the phrase 'special proceeding' was discussed at length and the conclusion reached that an attachment was a special proceeding, and, therefore, an order discharging an attachment could be reviewed by the District Court on proceedings in error. The court also held that the order discharging the attachment affected a substantial right. We can see no distinction as to the substantial right affected between an order discharging and an order refusing to discharge. The parties were equally interested in having the jurisdiction of the court over the res determined, and equally prejudiced by a void order. The only difference is that the prejudice is shifted from one to the other.

See, also, Harrison v. King, Carey & Howe, 9 Ohio St. 388, at page 395, in which the court reviewed an order overruling a motion to discharge, and Gans v. Thompson, 11 Ohio St. 579, in which the court reviewed an order discharging an attachment.

Speaking of the meaning of the word 'judgment' as used in Section 6 of Article IV of the Constitution, the Supreme Court said in Chandler & Taylor Co. v. Southern Pacific Co., 104 Ohio St. 188, at pages 192 and 193, 135 N.E. 620, 621;

'We appreciate the gravity of the legal problem here involved. But in its solution this court cannot adopt a construction so narrow as to deprive litigants of remedies enjoyed since the adoption of our Civil Code of Procedure. Our bench and bar of this and preceding generation knew that the definitions of 'judgments' and 'final orders' had been engrafted upon our Civil Code, and that our remedial procedure embraced the review of final orders; and undoubtedly those who framed the Constitution of 1912 did not contemplate a restriction of those civil remedies continuously employed for a period of more than 60 years. While we may not permit the conferment of legislative jurisdiction upon the Court of Appeals under our present Constitution, it is permissible to define the term 'judgments' as used in the Constitution. At common law the term was used in a restricted sense. Lexicographers and courts have variously defined it, some giving it a restricted and others a broad and comprehensive meaning. We are satisfied that, in order to effectuate the purpose of those who framed this amendment, and in order to promote the object of the people in its adoption, a technical definition should be disregarded, and a broad and comprehensive meaning should be adopted. We therefore hold that it comprehends decrees and final orders rendered by a court of competent jurisdiction, and which determine the rights of parties affected thereby. Were we to arrive at any other conclusion that herein announced, a review of a large number of final orders affecting the substantial rights of litigants would be denied.'

That the General Assembly which enacted the Appellate Procedure Act, Gen.Code,§ 12223-1 et seq., effective January 1, 1936, considered an order either discharging or refusing to discharge an attachment as a reviewable order is clear, because as a part of that act it amended Section 11864, General Code, to conform to it by providing that an order discharging or refusing to discharge an attachment may be appealed 'on questions of law.'

However, we find our judgment on this point in conflict with the judgments in Rothman v. I. Seldin & Kneller, 37 Ohio App. 408, 174 N.E. 794, and Holloway v. Mahoning Auto Service Co., 14 O.L.A. 172, decided by Courts of Appeals of other appellate districts, and, for that reason, will certify this case on that ground to the Supreme Court. The decisions in those cases were based somewhat on interpretations of the opinion in Pullman Co. v. Automobile Ins. Co., 107 Ohio St. 283, 140 N.E. 355. However, the point here presented was not mentioned in the syllabus and, as we construe that part of the opinion relied on in those cases, the court was pointing out that one of the statutes under consideration was special and the other general, and that, therefore, the special statute controlled. Inasmuch as our conclusion is that this court has jurisdiction, we will pass upon the errors assigned.

(1) It is claimed that the order of attachment was issued before the action was commenced and is void for that reason.

The facts are that the petition, with praecipe attached, was duly filed in the clerk's office. In addition to the usual wording of a praecipe for a summons, there was a direction to mail a copy of the petition to defendant at 414 Elizabeth avenue, Newark, New Jersey. At some time after the praecipe was filed, an unidentified person drew a line in ink, extending from the left hand lower corner to the right hand upper corner, and then crossed this by an open loop at the end near the signature of the attorney and with the closed end at the upper left hand corner. When the attorney filed the petition, a conversation took place between him and a deputy clerk concerning instructions to the sheriff and the attorney undoubtedly told the clerk that the defendant was a foreign corporation and could not be served in Hamilton county. That conclusion is in accord with all the evidence and is fortified by the fact that at the same time the petition was filed an affidavit in attachment was filed in which it was averred that the defendant was 'a foreign corporation, that said defendant is a nonresident of and is not domiciled in the state of Ohio.' The appearance docket shows that the affidavit in attachment was filed and on the same day a writ of attachment was issued. There is no notation on the appearance docket of the filing of the praecipe for summons, or that a summons was issued. The evidence shows that a summons was prepared but never delivered to the sheriff. Apparently at the time the summons was prepared by the clerk, he stamped on the petition the word 'issud,' twice, but any implication therefrom that a summons was delivered to the sheriff is contrary to the undisputed testimony of all the participants in the transaction. As the praecipe had no marks of cancellaion or withdrawal superimposed on it at the time it was filed, placing them thereon subsequently, no matter by whom, without the leave of the court would be ineffective to change the praecipe as originally filed. E. L. Rice & Co. v. Pike, 117 Ohio St. 521, 160 N.E. 90. We, therefore, must consider that although the praecipe was filed and the summons prepared by the clerk, it was not delivered to the sheriff. Constructive service was not started until August 9, 1946, when an affidavit was filed. The affidavit in attachment was filed with the petition and the writ was issued on the same day.

Did what was done constitute the commencement of the action at the time the petition was filed? If it did, the attachment is valid; otherwise, not.

By Section 11279, General Code, it is provided that 'A civil action must be commenced by filing in the office of the clerk of the proper court a petition, and causing a...