Kennedy v. Latchaw ( 1919 )

By the Court.

This action was brought by Kennedy, as administrator, in the common pleas court of Crawford county, Ohio. One Louis D. Sievert was made a party defendant, and served in that county. The defendant in error and other codefendants, joined with Sievert, did not live in Crawford county.- The action was one for personal injuries against the defendants.' After the filing of an amended petition, the defendant in error, Isaac N. Latchaw, together with his co-defendants who did not live in Crawford county, filed an answer objecting to the jurisdiction of the court over théir persons. This answer also contained allegations taking issue on the merits of the case. During the course of the trial, at the instance of the plaintiff, all of the defendants except Isaac N. Latchaw were dismissed from the case. Judgment was rendered in the court of common pleas in favor of the defendant Isaac N. Latchaw, which was later affirmed by the court of appeals.

In view of the record, the judgment of the lower courts must be affirmed. Whether Isaac N. Latchaw entered his appearance by his answer becomes immaterial since the final judgment of the trial court appears to have been entered in his favor upon the merits. The journal entries of the trial court disclose that a jury was. waived by the parties in open court, and the case submitted to the court upon the petition and the evidence; that the court after taking said case under advisement, and after carefully considering the evidence, found that plaintiff was not entitled to recover. Judgment was thereupon entered in favor of the defendant.

In our view of the case as here presented this was a judgment upon its merits, and plaintiff in error is concluded from raising the question of jurisdiction by the final judgment of the trial court.

Judgment affirmed.

Jones, Matthias, Johnson, Wanamaker and Robinson, JJ., concur. Merrell, J., not participating.