Clark v. Swartz , 25 Ohio App. 175 ( 1927 )

Clark Ward, plaintiff, brought an action in the court of common pleas of Sandusky county against Edward Swartz and Lester Schmidt, defendants, to recover for personal injuries sustained by the plaintiff while driving his automobile in an easterly direction on the Western Reserve and Maumee Pike between Clyde and Bellevue. It appears from the petition that plaintiff's automobile collided with an unlighted truck parked upon that highway, facing in an easterly direction. The averments of that petition show that the collision took place in Sandusky county, and that the plaintiff resided in Huron county and the defendants in Ottawa county. After the filing of the petition and service of summons each defendant filed a motion to set aside the service as invalid, protesting therein against the entering of his appearance. These motions were overruled by the court. Thereafter the cause came on for trial on the second amended petition of the plaintiff and the separate answers of the defendants thereto. By these pleadings it was admitted that the injuries were sustained in Sandusky county and that the plaintiff resided in Huron county and the defendants in Ottawa county. After the jury was impaneled, the objection was made that the court had no jurisdiction over the person of either of the defendants, and the court sustained the objection, dismissed the plaintiff's petition, and excused the jury from further consideration of the case. This action of the court is assigned as error.

It is admitted in the pleadings that the collision occurred April 10, 1923. The original action was begun in the court of common pleas on March 14, 1924. Summons in the action was served in accordance with Section 6308, General Code. This section was amended by an act passed March 8, 1923 (110 Ohio Laws, 407), which became effective June 21, 1923. Before the amendment the section read (99 Ohio Laws, 545, Section 33):

"Section 6308. Actions for injury to a person or property, caused by the negligence of the owner of a motor vehicle, may be brought, by the person injured, against such owner in the county wherein such injured person resides. A summons in such action against any defendant or defendants shall be issued to the sheriff of any county within this state wherein such defendant or defendants reside and may be served as in other civil actions, notwithstanding any contrary provision of law for the service of summons in civil actions."

After the amendment it read:

"Section 6308. Actions for injury to a person or property, caused by the negligence of the owner or operator of a motor vehicle, may be brought, by the person injured, against such owner or operator in the county wherein such injury occurs. A summons in such action against any defendant or defendants shall be issued to the sheriff of any county within this state wherein such defendant or defendants reside and may be served as in other civil actions, notwithstanding any contrary provision of law for the service of summons in civil actions."

If the section as amended applied, the action was properly brought in the county where the injury occurred. If the statute as existing prior to the amendment applied, then the action was improperly brought in the county where the collision occurred.

To determine the question involved requires that a construction be placed upon Section 26, General Code, which reads as follows:

"Section 26. Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed, nor shall any repeal or amendment affect causes ofsuch action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act."

In the case of Elder v. Shoffstall, 90 Ohio St. 265,107 N.E. 539, the Supreme Court had under consideration the construction of Section 26, for the purpose of determining to what actions and causes of actions Section 11455, as amended February 6, 1913, applied. The latter section as amended provided that:

"In all civil actions a jury shall render a verdict upon the concurrence of three-fourths or more of their number."

The amendment to Section 11455 became effective May 14, 1913. The action was begun prior to the time the law became effective. The court held that the amended section related only to the remedy and did not apply to causes pending in the court of common pleas previous to the time the law became effective, but, on the other hand, that it did apply to all actions commenced on and after the law became effective, even though the cause of action arose prior to that time. We quote from the syllabus of that case as follows:

"(1) Section 11455, General Code, as amended February 6, 1913 (effective May 14, 1913), does not apply to causes pending in the common pleas courts of this state on the 13th day of May, 1913.

"(2) This amended section relates to the remedy only and applies to all actions commenced in the common pleas courts of this state, on and after the 14th day of May, 1913, regardless of the time when the cause of action arose."

We also quote from the opinion of the court, page 274 (107 N.E. 542), as follows:

"In view of the plain and positive provisions of the law, it follows that causes of action, prosecutions, or proceedings existing at the time of the amendment or repeal of statutes relating to the remedy are not exempt from the operation of such amendment or repeal."

The principle announced in that case is applicable to the case at bar. The action was begun after the amendment of Section 6308 became effective. and as that section related only to the remedy it was immaterial that the cause of action arose before the amendment became effective. Under the principle laid down in the case of Elder v. Shoffstall, supra, Section 6308, as amended, applies to all actions of the specified kind commenced on and after June 21, 1923, regardless of the time when the cause of action arose. We understand that counsel do not make the contention that the amended section does not relate exclusively to the remedy, and we think no such contention can seriously be made. The cause of action is not affected by the amendment, which is a venue statute, and merely provides where the action may be brought.

It is contended, however, that what was said in the case ofElder v. Shoffstall, in so far as it is applicable to the case at bar, was obiter dictum, and that subsequent decisions of the Supreme Court are to be construed as holding that the doctrine of that case is not well founded. The cases so relied upon are Klein v. Lust, 110 Ohio St. 197, 143 N.E. 527; Psaris v. Fredericks,113 Ohio St. 8, 148 N.E. 360; Luff v. State, 113 Ohio St. 379,149 N.E. 384.

It is true that the pertinent part of the opinion in Elder v.Shoffstall, supra, was obiter dictum, but the principle was carried into the syllabus, showing an intention to declare it a rule of law in this state. At the time the decision was rendered a large number of cases were pending and awaiting trial until the decision should announce the rule, and the rule as announced has been consistently followed since and without question.

In the case of Klein v. Lust, supra, Section 26 was not under consideration, and we find nothing in it that indicates that the Supreme Court, as now constituted, regards the doctrine as unsound.

In the case of Psaris v. Fredericks, supra, it was held thatElder v. Shoffstall, supra, was not applicable, for the reason that the section under consideration in the former case prescribed, not only a rule of evidence, but also a rule of conduct, and therefore could not be said to relate solely to the remedy. It is evident that the doctrine of the Shoffstallcase was not repudiated.

In Luff v. State, supra, the able and learned judge who wrote the opinion quotes from C., H. D. Rd. Co. v. Hedges, 63 Ohio St. 339, 58 N.E. 804, language which, it is claimed by defendant in error, requires a different construction of Section 26, but did it for the purpose of showing that the statute prescribing a penalty for a criminal offense could not have a retroactive effect. It will be observed that in C., H. D. Rd.Co. v. Hedges, supra, the court extended the statute in question beyond its express terms. In Luff v. State, supra, the court also cited State v. Lawrence, 74 Ohio St. 38, 77 N.E. 266, 6 Ann. Cas., 888. In this latter case Lawrence was indicted by the grand jury September 29, 1903. The crime charged was alleged to have been committed April 26, 1901. The section on which the prosecution was based was repealed and a new one enacted between the time of the commission of the offense and the finding of the indictment. The question was, Did the repeal of the section destroy or take away the right of the state to prosecute for the offense under the statute as it existed at the time of its commission? It is apparent that such a repeal affected the existing cause of prosecution, but did not relate to the remedy only.

We think the correct interpretation of Elder v. Shoffstall,supra, is to be found in State ex rel. Campbell v. Ballard,8 Ohio App. 44, from which we quote, at page 48:

"There is no vested right to a remedy in favor of anybody. The Legislature may, if it sees fit, amend, repeal, or alter any section of the General Code relating to the remedy, but this they cannot do so as to affect pending actions unless it is specifically so provided. Section 26, General Code, prohibits the Legislature from passing any act or amending any statute which affects the remedy so as to make it applicable to pending actions, unless the act specifically provides that it shall apply to pending actions."

In conclusion, it should be emphasized that in the instant case the existing cause of action could in no way be affected by providing by enactment of the Legislature that the action might be brought in a different jurisdiction.

For the reasons indicated the trial court committed prejudicial error in dismissing the petition of the plaintiff and in discharging the jury, and the judgment of that court is reversed, and the cause remanded for further proceedings according to law.

Judgment reversed and cause remanded.

RICHARDS and LLOYD, JJ., concur.