Compton, Jr. v. Compton ( 1938 )

The brief of appellant submitted in conjunction with the application is intended to disclose that the decision in the case of Apex Coal Co. v. Winings, supra, is in conflict with our opinion in the instant cause and should be followed.

Counsel has favored the court not only with the entry in theApex Coal Company case but also with the briefs of counsel for both parties. By reason of this additional information we have enough facts to clear up the uncertainty which we expressed in our former decision by reason of consideration only of the reported opinion as found in the Ohio Law Abstract. The informative facts appear in the brief of defendant in error which discloses that the action was for money claimed to be due on account from the defendant, Apex Coal Company, a foreign corporation which owned property in Harrison county, the county in which the cause of action arose. Thus the action was properly instituted in Harrison county by virtue of Section 11276, General Code, which provides that:

"An action * * * against * * * a foreign corporation, may be brought in any county in which there is property of * * * the defendant * * * or where the cause of action * * * arose."

The action having been properly lodged in Harrison county, summons could be issued to Cuyahoga county under authority of Section 11282, General Code, which provides that:

"When the action is rightly brought in any county, according to the provisions of the next preceding chapter [which chapter includes Section 11276, General Code], a summons may be issued to any other county, against one or more of the defendants, at the plaintiff's request."

The court was then clearly correct in holding that the judgment predicated upon service by registered mail (Section 11297-1, General Code) should not be set aside.

The holding in the Apex Coal Company case amplifies what we said in our original opinion in this case.

In the instant case the action was not properly brought in Franklin county because the defendant did not reside there nor could he be personally summoned there, one of those conditions being requisite to support the venue under Section 11277, General Code. As we stated in our former opinion, Section 11297-1, General Code, grants no substantive right to serve a defendant, but merely provides an additional method of service when the right exists.

The application for rehearing will be denied.

Rehearing denied.

BARNES, P.J., HORNBECK and GEIGER, JJ., concur.