Title Guar. & Sur. Co. v. McAllister, 25526.

• Decision Date: 18 March 1936
• Docket Number: No. 25526.,25526.
• Parties: TITLE GUARANTY & SURETY CO. v. McALLISTER.
• Court: Ohio Supreme Court

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...