Title Guar. & Sur. Co. v. McAllister, No. 25526.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtZIMMERMAN
Citation130 Ohio St. 537,200 N.E. 831
PartiesTITLE GUARANTY & SURETY CO. v. McALLISTER.
Docket NumberNo. 25526.
Decision Date18 March 1936

130 Ohio St. 537
200 N.E. 831

TITLE GUARANTY & SURETY CO.
v.
McALLISTER.

No. 25526.

Supreme Court of Ohio.

March 18, 1936.


Error to Court of Appeals, Belmont County.

Action by one McAllister, administratrix of the estate of Samuel J. Daniel, deceased, against the Title Guaranty & Surety Company. To review a judgment of the Court of Appeals which reversed a judgment for defendant, defendant brings error.-[Editorial Statement.]

Judgment of Court of Appeals reversed, and that of court of common pleas affirmed.

Certification of the record by the Court of Appeals, upon allowance of plaintiff in error's motion therefor, brings this case before the Supreme Court for decision.

Outstanding among the questions in the case is whether plaintiff in error, surety on a guardian's bonds, is in a position to interpose successfully the 10-year statute of limitations prescribed by section 11226, General Code, as a defense to an action on such bonds.

The essential facts of the case are these: In 1913 Samuel J. Daniel was adjudged a lunatic by the probate court of Belmont county, Ohio. S. C. Daniel, his son, was appointed guardian. The requisite and usual bond was executed by S. C. Daniel, as principal, and by plaintiff in error, the Title Guaranty & Surety Company, a Pennsylvania corporation doing business in Ohio, as surety. Upon the sale of some real estate by the guardian during the same year, an additional bond was demanded and given with the same signers.

In 1916, Samuel J. Daniel was adjudged to have regained his reason. The guardian filed his final account, and upon settlement thereof by the probate court on July 13, 1917, there was found to be due from the guardian $3,618.83, of which amount $133.92 was subsequently paid. Samuel J. Daniel died in the latter part of 1917 or the first part of 1918, and on November 12, 1920, defendant in error, administratrix of his estate, filed a petition in the court of common pleas of Belmont county to recover under the surety bonds the ‘sum of $3484.91, with interest thereon from July 13, 1917,’ naming S. C. Daniel and plaintiff in error defendants.

No service of summons was ever made upon S. C. Daniel. He died in 1930, leaving no estate above funeral expenses and costs of administration. The place of his death or where he had been previously does not appear.

On September 25, 1924, alias summons was issued to the sheriff of Franklin county, Ohio, for plaintiff in error, which was returned within ten days, showing service on the then secretary of state of Ohio; none of the chief officers of plaintiff in error being found within Franklin county.

On February 9, 1925, the cause was ‘continued off the docket,’ and remained so far more than nine years or until April 14, 1934, when it was restored on motion of defendant in error.

Thereupon, plaintiff in error, disclaiming intention to enter appearance, moved to quash the ‘pretended service of summons' made on the secretary of state in 1924, which motion was sustained by entry filed October 5, 1934, noting defendant in error's exception.

Defendant in error promptly caused an alias summons to be issued for plaintiff in error, directed to the sheriff of Belmont county. Such summons was returned and filed on November 5, 1934, showing service on plaintiff in error by sending it a copy of the summons by registered mail to Scranton, Pa., its home office.

A motion to quash such service was overruled, whereupon plaintiff in error, objecting to the jurisdiction of the court over its person, filed an answer containing two defenses: First, a general denial; and, second, the 10-year statute of limitations.

The reply alleged that plaintiff in error had never qualified to do business in Ohio according to law; that it had withdrawn from business in Ohio in 1916, canceling its agencies and leaving no agent upon whom service of summons could be made; and that it had concealed itself so that service of summons could not be made upon it.

The case was submitted to the court of common pleas for decision upon the pleadings and an ‘Agreed Statement of Facts,’ and the result was in favor of plaintiff in error.

While the judgment entry merely shows a finding on the issues for plaintiff in error with a dismissal of the petition, an examination of the trial judge's opinion discloses the basis of the judgment to have been that since the action was not properly commenced until more than 17 years after it could have been, a plea of the 10-year statute of limitations was a good defense.

Defendant in error proceeded to the Court of Appeals on error, which court reversed the judgment of the court below, apparently on the ground ‘that service of summons having been made by mail upon the defendant surety company [plaintiff in error] within the sixty-day period provided by section 11231 of the General Code of Ohio,’ after the trial court had declared the attempted service in 1924 invalid, ‘and within one year’ from such time ‘as provided by section 11233; the ten-year statute of limitations had not, under the circumstances in this case, expired.’

Additional facts are included in the opinion.



Syllabus by the Court.

[Ohio St. 537]1. A foreign surety and guaranty company, coming into Ohio to do business by guaranteeing the fidelity of persons holding places of public or private trust in their handling of money or other property, is within the classification of foreign insurance companies and subject to the provisions of section 9561, General Code, relating to service of process.

2. A compliance with section 9561, General Code, by such company filing the requisite consent and waiver with the superintendent of insurance, subjected it to service of process at all times thereafter in the manner prescribed by that section, and service [Ohio St. 538]on the secretary of state in its behalf under section 181, General Code, pertaining to foreign corporations in general, and since repealed, was without authority and void.

3. Such company having complied with section 9561, General Code, and thereby being continuously amenable to service of process from the time a cause of action accrued on bonds it had executed as surety, was privileged to interpose as a defense the 10-year limitation prescribed by section 11226, General Code.

4. Sections 11231 and 11233, General Code, intercepting the operation of statutes of limitations under the conditions therein described, have no application to a case where section 11226, General Code, is properly invoked as a defense, and it appears that no valid service of...

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14 practice notes
  • Stern v. National City Co.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • November 4, 1938
    ...Defendant relies upon Walker v. L. E. Meyers Construction Co., 175 Okl. 548, 53 P.2d 547, and Title Guaranty & Surety Co. v. McAllister, 130 Ohio St. 537, 200 N.E. There is no question but that the defendant withdrew from Minnesota in August, 1934, when in compliance with Section 7494 of Ma......
  • LaBarbera v. Batsch, No. 40358
    • United States
    • United States State Supreme Court of Ohio
    • April 19, 1967
    ...or attempted to be commenced, within the meaning of Section 2305.17, supra. Cf. Title Guaranty & Surety Co. v. McAllister, Admx. (1936), 130 Ohio St. 537, 200 N.E. 831; Kossuth v. Bear (1954), 161 Ohio St. 378, 119 N.E.2d 285; Mason v. Waters (1966), 6 Ohio St.2d 212, 217 N.E.2d 213; Bush v......
  • Seeley v. Expert, Inc., No. 69-837
    • United States
    • Ohio Supreme Court
    • April 21, 1971
    ...and by Couts (152 Ohio St. 458, 90 N.E.2d 139) is incompatible with that announced in Title Guaranty & Surety Co. v. McAllister (1936), 130 Ohio St. 537, 200 N.E. 831, and Thompson v. Horvath (1967), 10 Ohio St.2d 247, 227 N.E.2d 225. It is argued that both Title Guaranty and Thompson stand......
  • Kossouth v. Bear
    • United States
    • United States Court of Appeals (Ohio)
    • June 1, 1953
    ...decided cases of this State, except for a sentence in the opinion of the court in the case of Title Guaranty & Sur. Co. v. Mc-Allister, 130 Ohio St. 537, 546, 200 N.E. 831, hereafter referred to. The cases thus far decided deal with the question of whether the saving provision of Sec. 11228......
  • Request a trial to view additional results
14 cases
  • Stern v. National City Co.
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • November 4, 1938
    ...Defendant relies upon Walker v. L. E. Meyers Construction Co., 175 Okl. 548, 53 P.2d 547, and Title Guaranty & Surety Co. v. McAllister, 130 Ohio St. 537, 200 N.E. There is no question but that the defendant withdrew from Minnesota in August, 1934, when in compliance with Section 7494 of Ma......
  • LaBarbera v. Batsch, No. 40358
    • United States
    • United States State Supreme Court of Ohio
    • April 19, 1967
    ...or attempted to be commenced, within the meaning of Section 2305.17, supra. Cf. Title Guaranty & Surety Co. v. McAllister, Admx. (1936), 130 Ohio St. 537, 200 N.E. 831; Kossuth v. Bear (1954), 161 Ohio St. 378, 119 N.E.2d 285; Mason v. Waters (1966), 6 Ohio St.2d 212, 217 N.E.2d 213; Bush v......
  • Seeley v. Expert, Inc., No. 69-837
    • United States
    • Ohio Supreme Court
    • April 21, 1971
    ...and by Couts (152 Ohio St. 458, 90 N.E.2d 139) is incompatible with that announced in Title Guaranty & Surety Co. v. McAllister (1936), 130 Ohio St. 537, 200 N.E. 831, and Thompson v. Horvath (1967), 10 Ohio St.2d 247, 227 N.E.2d 225. It is argued that both Title Guaranty and Thompson stand......
  • Kossouth v. Bear
    • United States
    • United States Court of Appeals (Ohio)
    • June 1, 1953
    ...decided cases of this State, except for a sentence in the opinion of the court in the case of Title Guaranty & Sur. Co. v. Mc-Allister, 130 Ohio St. 537, 546, 200 N.E. 831, hereafter referred to. The cases thus far decided deal with the question of whether the saving provision of Sec. 11228......
  • Request a trial to view additional results

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