Abbildungen der Seite
PDF
EPUB

Under the Ohio statute, an action to recover damages under the act requiring compensation for causing death by wrongful act, neglect or default, may be brought in any county in the State, where the defendant, or one of the defendants reside or may be served; and, in such case, where there are several defendants, against all of whom the cause of action is alleged, and some of whom are served in the county, and some in another county than that where the suit is brought, the validity of the service of summons in such other county, and the jurisdiction of the court over the persons of the nonresident defendants depend upon the truth of the allegations of the petition.34

Sec. 27. Venue-The action for divorce.

An action for divorce may be brought in the county of which the plaintiff is an actual resident at the time of the filing of the petition.35

84 Drea v. Carrington, 32 O. S.

595.

35 Snyder, 5,589; Act of April 28, 1908; Kansas, 4,484 (1901), iden

tical. This means an actual and permanent residence and not a temporary residence. Carpenter v. Carpenter, 30 Kan. 712, 2 Pac. 122.

CHAPTER III.

THE PROCEDURE BY WHICH A COURT ACQUIRES POWER TO TRANSFER REAL ESTATE FROM ONE PERSON TO ANOTHER THE COMMENCEMENT OF THE ACTION.

[blocks in formation]

SECTION

45. When acknowledgment of service equivalent to service of sum

mons.

46. Summons-Service on corpora

tions.

47. Constitutional provision as to service of summons upon foreign corporation.

48. Foreign corporation required to file copy of charter-Must appoint resident agent upon whom summons may be served. 49. When no resident agent designated service of summons upon foreign corporation may be upon secretary of state. 50. Summons on railroad and stage company-Designated agent. of арpointment of designated agent. 52. Failure to designate agent, local agent may be served, when. 53. Service by leaving copy at residence of agent.

51. Summons-Certificate

54. Service on insurance company. 55. Service on managing agent. 56. Constructive service on nonresident by publication.

57. The affidavit required for service by publication.

58. Application to set aside constructive service and proceedings under it not a collateral attack, when.

59. The affidavit for service by publication may be corrected by amendment, when.

[blocks in formation]

The question that should be uppermost in the mind of counsel and the court in conducting any proceeding in which real estate is to be sold, is to give title to the real estate to some one to whom the court shall eventually transfer it by judicial order. Counsel as well as the court should ever keep in mind that what each does in the action is a matter of public record, and will appear in the abstract of title to the real estate in question and will be examined carefully by skillful examiners of real estate title each time the property is sold ever afterward.

The prime and first essential is that everyone who has an interest in the action must be made a party to the proceeding, and brought into the action by some one of the methods required by law. The usual method is by summons served upon the party by the sheriff or other officer, or by some person appointed by the statute. It may be a written waiver and entry of appearance filed in the action by the party himself, or it may be by the party himself by filing some pleading or motion or application in the suit, or by some verbal directions to the court, though not intending to submit himself to the jurisdiction of the court, or it may be by notice served upon the opposite party of proceedings under a special statute.

Unless the notice so required by law is given to the party, his rights are not affected by any order of any court attempt

ing to divest him of his title thereto. The lawyer who conducts proceedings by which real estate is sold by judicial process, and the examiner of title to real estate so sold, should give the utmost attention to this all-important question: Did the court by proper notice to all necessary and proper parties acquire the power to order a sale or transfer of the real estate?

Sec. 29. The action-How commenced.

A civil action may be commenced in a court of record by filing in the office of the clerk of the proper court, a petition, and causing a summons to be issued thereon.1

This requirement of the statute is essential to give the court power or authority to give legal sanction to future orders in the case.2

It has been held that the issuance of a summons upon a praecipe by a codefendant is not an error of which defendant can complain, nor will the jurisdiction of the court, after due service of the summons issued thereon, be affected by reason thereof.3

1 Snyder, 5,591; Wilson, 4,257; Ohio Gen. Code, Sec. 11279 (1910), identical; Kansas, 4,487 (1901), identical; Nebraska, 1,063 (1907), identical. The issuing of summons by the clerk of the district court without a praecipe is not an error of which the defendant can complain. Goff v. Russell, 3 Kan. 212.

2 Reddick v. Webb, 6 Okla. 392, 50 Pac. 363; Schnell v. Jay, 4 Okla. 157, 46 Pac. 598. Actions for forcible entry and detainer, or forcible detainer, are commenced by the filing of a complaint and causing summons to be issued thereon; and such actions are not deemed to be commenced until summons is issued, and this regardless of the

date when the complaint was verified. Greenameyer v. Coate, 12 Okla. 452, 72 Pac. 377.

3 State Life Ins. Co. v. Oklahoma Nat. Bank, etc., 21 Okla. 823, 97 Pac. 574. Attachment suit, when deemed commenced. Raymond v. Nix, 5 Okla. 656, 49 Pac. 1,110; Weston v. Long, 63 Kan. 876, 66 Pac. 1,032; Baumeister v. Carroll, 43 Kan. 64, 22 Pac. 1,012. Replevin suit, see Kelly v. Todd, 5 Okla. 360, 49 Pac. 353. Injunction, see Barnett v. Schodd, 73 Kan. 414, 91 Pac. 539. Actions on benefit insurance, see Woodmen, etc., v. Bauersfield, 62 Kan. 867, 62 Pac. 1,012; German v. Wright, 6 Kan. App. 611, 49 Pac. 704.

The filing of an amended petition in an action which does not substantially change the cause of action, does not require the issuing and service of a new summons.*

Sec. 30. Copy of the petition need not accompany the summons-How copy obtained.

A copy of the petition need not accompany the summons, but the defendant or plaintiff will be entitled to a copy of the petition, or any other paper filed in the action, on application to the clerk therefor; and the cost of such copy will be taxed among the costs in the action."

Sec. 31. The praecipe-The summons and its requisite.

The summons will be issued by the clerk, upon a written praecipe filed by the plaintiff; and the same will be under the seal of the court from which the summons issued, and must be signed by the clerk, and must be dated the day that it is issued. It must be directed to the sheriff of the county, and command him to notify the defendant, or defendants, named therein, that he or they have been sued, and must answer the petition filed by the plaintiff, giving his name, at the time stated therein, or the petition will be taken as

Packing v. Orrick, 4 Okla. 661, 46 Pac. 573; Schuyler v. Bollong, 45 N. W. Neb.) 164. Where a suit was brought by O for the benefit of certain parties, who were heirs of F, the suit being upon an indemnity bond made to O, the constable, to indemnify him against "judgments," etc., that might be rendered against him on account of certain attachment procured by the principal obligor on the bond, and where F had procured judgment against O on account of the liability for which the indemnity bond was given, held, that it was not error

[blocks in formation]
« ZurückWeiter »