State ex rel. Balson v. Harnishfeger

• Decision Date: 05 July 1978
• Docket Number: No. 78-193,78-193
• Citation: State ex rel. Balson v. Harnishfeger, 55 Ohio St.2d 38, 377 N.E.2d 750, 9 O.O.3d 21 (Ohio 1978)
• Parties: , 9 O.O.3d 21 The STATE ex rel. BALSON, Appellant, v. HARNISHFEGER, Judge, et al., Appellees.
• Court: Ohio Supreme Court

Page 38

55 Ohio St.2d 38

377 N.E.2d 750, 9 O.O.3d 21

The STATE ex rel. BALSON, Appellant, v.HARNISHFEGER, Judge, et al., Appellees.

No. 78-193.

Supreme Court of Ohio.

July 5, 1978.

On November 7, 1977, William M. Balson filed an action for divorce against his wife, Mary J. Balson, appellant herein, in the Court of Common Pleas of Allen County, Ohio.Summons was issued on the same date.Service of process was obtained by certified mail on November 10, 1977, on appellant in Franklin County.

On November 9, 1977, appellant filed an action for divorce against her husband, William M. Balson, in the Court of Common Pleas of Franklin County, Division of Domestic Relations.Personal service was obtained on Mr. Balson on the same day.

On November 25, 1977, appellant filed a motion to dismiss and quash service of process on the complaint filed in Allen County, Ohio.That motion was denied.Thereafter, appellant sought a writ of prohibition to prevent appellees from proceeding with the case in Allen County.On February 9, 1978, the Court of Appeals for Allen County sua sponte dismissed the complaint.

The cause is now before this court upon an appeal as a matter of right.

Grelle & Paxton and Robert C. Paxton, II, Columbus, for appellant.

David E. Bowers, Pros.Atty., for appellees.

PER CURIAM.

The parties agree that the issue before the court is that: as between courts of concurrent jurisdiction, which court, to the exclusion of all others, has the right to adjudicate upon the whole issue and to settle the rights of the parties Is it the court in which the action was first filed or the court in which both the filing of the action and the required service of process is first completed?

If it is the former court, then Allen County is the proper forum; if the latter, then the Franklin Countycourt has jurisdiction and the writ of prohibition should have issued.

The Court of Appeals asserts that the Allen Countycourt has exclusive jurisdiction because the action was first commenced in that court within the purview of Civ.R.3(A) which states that "(a) civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filings."

In cases similar to the one at bar this court has held that exclusive jurisdiction vests in that court first acquiring not just subject-matter jurisdiction, but also in personam jurisdiction that is, completion of proper service.

In Miller v. Court of Common Pleas(1944), 143 Ohio St. 68, 54 N.E.2d 130, a dispute had arisen as to which of two courts had jurisdiction of a divorce and alimony action and relator sought to prohibit one of the courts from proceeding.In granting the writ, this court quoted with approval 14 Ohio Jurisprudence 40, Divorce and Separation, Section 30: " 'It is a fundamental rule that, as between courts of concurrent and coextensive jurisdiction, the one whose power is first invoked by the institution of proper proceedings and the service of the required process acquires the right to adjudicate upon the whole issue and to settle the rights of the parties to the exclusion of all other tribunals.This rule obtains in divorce actions. * * * ' "

Service of process is thus made a condition precedent to vesting of jurisdiction in determining which...