Orr v. Shoemaker , 2 Ohio App. 323 ( 1914 )

The point involved in this case is whether the defendant, Robert H. Shoemaker, by filing of the motion to discharge the attachment, inadvertently-entered his appearance in the cause and thus gave the court jurisdiction of his person.

Defendant is a nonresident of Ohio. Two causes of action are' embraced in the petition; one upon a promissory note and the other upon an account. A farm and certain chattel property upon it, located in Butler county, were attached in said proceedings.

Defendant filed a motion in the following words:

“Now comes the defendant herein, by his counsel, and without entering his appearance herein and without waiving any of his rights, and for the purpose of this motion only, moves the court to discharge the attachment herein and to release the property claimed to have been attached in this proceeding, for the reason that said property is not subject to attachment herein as the defendant is not the owner of said property, and the court therefore has no jurisdiction of the subject-matter.”

On hearing, this motion was overruled by the court. Afterwards, in August, 1913, plaintiff, George B. Orr, hied a motion asking for judgment by default against the defendant, on the ground that the defendant had entered his appearance by filing the motion above quoted and was in default for answer.

If this motion of defendant was for the purpose of contesting the merits of the cause in any particular, or the jurisdiction of the court upon the subject-matter of the action,, it would constitute a waiver of all objections to the jurisdiction of the court over the person of the defendant, even though he had distinctly protested against such jurisdiction, as he did in this case. Elliott v. Lawhead, 43 Ohio St., 171; Long v. Newhouse et al., 57 Ohio St., 348, 370 ; 3 Cyc., 508.

It is clear, however, that the purpose of his action was to challenge the jurisdiction of the court to his person, by showing that the property sought to be attached was not his property and therefore the court had acquired no such jurisdiction over his person, and he had not been brought before the court. The subject-matter in the case was not the ownership of the property sought to be attached, but was simply whether he was indebted on the note and upon the account. The only question, therefore, brought before the court by the motion was whether the court had acquired a jurisdiction as against him. This is the construction that must be placed upon the motion, although it is not clearly drawn. The use of the word “subject-matter” in it does not refer to the subject-matter of the case itself, but rather to the property sought to be attached.

Mr. Harry T. Klein and Mr. Sam D. Fitton, Jr., for plaintiff in error. Mr. Murray Shoemaker, for defendant in error.

The motion filed in the case of Newcomer v. Adkins, 9 N. P., N. S., 308, contained several paragraphs addressed to the merits of the case, and yet the court properly held that the purpose of the motion was only to secure a discharge of the attachment and it did not effect an appearance.

The case of Blinn v. Rickett, 3 N. P., N. S., 345, 6 C. C., N. S., 513, is very similar to the case at bar; and the case of Smith v. Hoover, 39 Ohio St., 249, is exactly in point.

The court below was, therefore, correct in holding that jurisdiction over the person of the defendant had not been acquired, and in overruling the motion for a judgment by default.

The record fails to show that any evidence was offered or submitted to the court on the hearing of the motion for judgment. In our opinion the overruling of this motion for judgment by default was not a final order of the court below, and the prosecution of error in this, court to that ruling is therefore premature, and the petition in error should be dismissed.

Judgment affirmed.