From Casetext: Smarter Legal Research

Sears v. Weimer

Supreme Court of Ohio
May 17, 1944
143 Ohio St. 312 (Ohio 1944)

Summary

In Sears v. Weimer (1944), 143 Ohio St. 312, 55 N.E.2d 413, paragraph five of the syllabus states that, "[w]here the language of a statute is plain and unambiguous and conveys a clear and definite meaning there is no occasion for***[resort] to rules of statutory interpretation.

Summary of this case from Meeks v. Papadopulos

Opinion

No. 29843

Decided May 17, 1944.

Judgments — Revivor — Dormant judgment against nonresident of state — Jurisdiction — Service by publication insufficient where judgment obtained after such service — Service by publication sufficient where personal service originally obtained — Personal service secured, how — Section 11286, General Code — Appearance by defendant and asking affirmative relief, insufficient — Section 11646, General Code — Statutory construction — Unambiguous statute to be applied, not interpreted.

1. Where a judgment was obtained after service by publication and thereafter became dormant, such dormant judgment may not be revived through service by publication against a nonresident of the state.

2. A dormant judgment against a nonresident of the state may be revived through service by publication only where such judgment was obtained upon personal service originally made on the adverse party.

3. Personal service is to be made by delivering a copy of the summons, with the indorsements thereon, to the defendant personally. (Section 11286, General Code.)

4. Where service by publication only had been made on a nonresident defendant, the fact that such defendant thereafter filed an answer in which he asked for some affirmative relief, which was granted, will not authorize the revivor of a dormant judgment against such nonresident through service by publication under Section 11646, General Code.

5. Where the language of a statute is plain and unambiguous and conveys a clear and definite meaning there is no occasion for resorting to rules of statutory interpretation. An unambiguous statute is to be applied, not interpreted.

APPEAL from the Court of Appeals of Brown county.

This case grows out of a proceeding to revive a dormant judgment upon service by publication made upon the defendant, a nonresident of the state.

The case was originally brought on March 24, 1924. Certain real estate then belonging to the defendant was seized by attachment. Service was made upon the defendant by publication only. Defendant filed an answer challenging the claim of plaintiff and also setting up an affirmative claim that plaintiff should be required to account for certain money and property belonging to defendant. There was no summons issued or served on plaintiff in respect of such affirmative relief sought by defendant. A jury was waived, the case was tried to the court on the issues, the plaintiff was required to account for property and money in the aggregate sum of $150 and judgment was rendered in favor of the plaintiff for a balance which the court found due her. The seized property was sold and the proceeds applied, but the judgment was not satisfied in full. The judgment became dormant.

On August 15, 1942, plaintiff filed a petition to revive the judgment and also filed an affidavit for service by publication. After service by publication was completed, defendant filed a motion, which was sustained, to quash such service. Thereafter, upon rehearing, the trial court vacated and set aside its former judgment and order quashing the service by publication and revived the judgment. Upon appeal to the Court of Appeals the judgment of the trial court was reversed. The case is here following allowance of motion to certify the record.

Mr. Robert V. Bagby, for appellant.

Messrs. Fite Houston, for appellee.


The question for decision is whether jurisdiction in the original action was obtained in a manner which permits a dormant judgment to be revived against a nonresident of the state upon whom service was had by publication only. Our decision is to be governed by the provisions of Section 11646, General Code, which reads as follows:

"When either party to such dormant judgment or finding, his agent or attorney, makes affidavit showing that the adverse party is not a resident of the state, that such judgment or finding remains unsatisfied in whole or part and the amount owing thereon, service may be made by publication, as in other cases, but only for judgments or findings in which personal service originally was made on the adverse party." (Italics ours.)

Section 11297, General Code, provides as follows:

"When service may be made by publication, personal service of a copy of the summons and petition may be made out of the state. Such service shall be proved by affidavit."

The record in this case shows no compliance with Section 11297, General Code. Therefore, it is unnecessary to determine whether such "personal service" would be sufficient under Section 11646, General Code.

The term "personal service" has a fixed and definite meaning in law. It is service by delivery of summons to defendant personally. Thisler v. Little, 86 Kan. 787, 121 P. 1123; McKenzie v. Boynton, 19 N.D. 531, 125 N.W. 1059; Dalton v. St. Louis M. S. Ry. Co., 113 Mo. App., 71, 78, 87 S.W. 610, 612; First National Bank of Casselton v. Holmes, 12 N.D. 38, 41, 94 N.W. 764, 765.

In 42 American Jurisprudence, 40, Section 48, it is said:

"Personal service is the primary method of obtaining jurisdiction over the person of a defendant, and is generally required, to give jurisdiction to render a judgment in personam. It is the only kind of service that will give jurisdiction to render such a judgment against a nonresident. Personal service of process means the actual or direct delivery of the summons or a copy thereof to the person to whom it is directed or to someone who is authorized to receive it in his behalf."

Section 11286, General Code, provides both for personal service and for an alternative means of service by leaving a copy at defendant's usual place of residence. So far as material here this section reads:

"The service shall be made at any time before the return day, by delivering a copy of the summons, with the indorsements thereon, to the defendant personally, or by leaving a copy at his usual place of residence; * * *." (Italics ours.)

There is no substitute for personal service when personal service alone is required. There is, however, an equivalent for service provided in Section 11287, General Code, which reads:

"An acknowledgment on the back of the summons or petition, by the party sued, or the voluntary appearance of a defendant, is equivalent to service."

Of course, when a party appears personally personal service is waived but a waiver does not meet the condition provided in Section 11646, General Code.

As said in 32 Ohio Jurisprudence, 391, Section 20:

"Process must be served in the mode designated by statute; and the courts cannot determine that service other than is so prescribed shall suffice."

Section 11646, supra, authorizes a revivor upon service by publication only where personal service originally was made on the adverse party. No reference is made to the equivalent of service nor to any case in which the trial court obtained jurisdiction over the person of the adverse party except by personal service.

Section 11646, General Code, is the only statute providing the method or means of obtaining service on a nonresident of the state preliminary to reviving a dormant judgment or finding against such nonresident. As the language of Section 11646, General Code, is clear and unambiguous there is no occasion for interpretation.

In the case of Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E. 574, it was held:

"But the intent of the law-makers is to be sought first of all in the language employed, and if the words be free from ambiguity and doubt, and express plainly, clearly and distinctly, the sense of the law-making body, there is no occasion to resort to other means of interpretation. The question is not what did the general assembly intend to enact, but what is the meaning of that which it did enact. That body should be held to mean what it has plainly expressed, and hence no room is left for construction." See, also, State v. Williams, 104 Ohio St. 232, 240, 135 N.E. 651.

As stated in 37 Ohio Jurisprudence, 514, Section 278:

"Where the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation. To interpret what is already plain is not interpretation, but legislation, which is not the function of the courts, but of the general assembly. * * * An unambiguous statute is to be applied, not interpreted." (See, also, ibid, 488, 490, Sections 267, 268.)

As no personal service originally was made on the nonresident adverse party in the case in which the judgment sought to be revived was obtained, it follows that the judgment of the Court of Appeals should be and hereby is affirmed.

Judgment affirmed.

MATTHIAS, ZIMMERMAN and BELL, JJ., concur.

WEYGANDT, C.J., and HART, J., dissent.

WILLIAMS, J., not participating.


With due respect for the majority opinion, it is submitted that no question of service of summons is here involved.

It is true that the original service of summons in this case was made by publication, and if this were the only manner in which the trial court obtained jurisdiction of the defendant's person, the limitation of Section 11646, General Code, would apply. However, the additional and controlling fact is that after the service by publication the defendant entered his general appearance by obtaining leave of the court and filing both an answer and a voluntary cross-petition asking affirmative relief. Section 11646 relates to service alone and prohibits a revivor of a judgment by publication when the original service was of a degree lower than personal. No mention is made of an entry of appearance which, of course, involves no service of summons.

Section 11287, General Code, appearing in a different chapter, is quoted as providing that "the voluntary appearance of a defendant, is equivalent to service." But this is far from declaring that entry of appearance is a form of service. There can be no more effective method for a court to obtain jurisdiction of a party than for that person to come into the court voluntarily; and when this occurs service is not involved. Nevertheless, under the majority view there cannot be such a revivor in the absence of original personal service even though the defendant voluntarily appeared in court and submitted himself to its jurisdiction. It seems unnecessary to infer a legislative intent to require a vain thing.

It is contended further that the defendant's entry of appearance was not voluntary. Assuming that the answer was filed involuntarily for the purpose of defense, the same contention hardly can be made with reference to the cross-petition asking affirmative relief for the defendant.

The judgment of the Court of Appeals should be reversed and that of the trial court affirmed.

HART, J., concurs in the foregoing dissenting opinion.


Summaries of

Sears v. Weimer

Supreme Court of Ohio
May 17, 1944
143 Ohio St. 312 (Ohio 1944)

In Sears v. Weimer (1944), 143 Ohio St. 312, 55 N.E.2d 413, paragraph five of the syllabus states that, "[w]here the language of a statute is plain and unambiguous and conveys a clear and definite meaning there is no occasion for***[resort] to rules of statutory interpretation.

Summary of this case from Meeks v. Papadopulos
Case details for

Sears v. Weimer

Case Details

Full title:SEARS, APPELLANT v. WEIMER, APPELLEE

Court:Supreme Court of Ohio

Date published: May 17, 1944

Citations

143 Ohio St. 312 (Ohio 1944)
55 N.E.2d 413

Citing Cases

State v. Lett

See, e.g., Katz v. Department of Liquor Control (1957), 166 Ohio St. 229 [2 O.O.2d 54, 141 N.E.2d 294]. If…

State v. Chessman

"`[T]he intent of the lawmakers is to be sought first of all in the language employed, and if the words be…