Lenz v. Lenz , 1 Ohio Law. Abs. 489 ( 1923 )

CHITTENDEN, J.

Epitomized Opinion

This case was heard before trial judge E. C. McClellan, Bowling Green, and a petition in error filed in the Wood county Court of Appeals. A motion to dismiss the petition in error was made, for the reasons that service of summons in error was not made and that no summons in error was served upon either of the parties to the suit, or the attorney of record in the Common Pleas court.

The attorney of record in the Common Pleas declined to enter appearance upon the petition in error, and thereupon a praecipe was filed for a summons in error, directed to the sheriff of Wood county, Ohio. The return of the sheriff recites that he made personal service upon defendant Len?, but that Lenz and another defendant were not found in said Wood county.

The Court of Appeals holds that the return very clearly shows no legal service of summons in error upon said Lenz. That if he was not found within Wood county, the sheri*’’ of that county was without authority to serve summons upon him, and the return amounts to an affirmative statement that there was no valid service upon the defendant, Sebastian Lenz.

Another summons was issued, and attempted service was made upon a defendant, France, but that service could bo of no avail without service upon the principal defendant. Lenz. The record failing to show service upon Lenz, the petition in error was dismissed.