McIntire v. Holmes , 1 Ohio Law. Abs. 537 ( 1923 )

SULLIVAN, J.

Epitomized Opinion

This was an appeal from the decision of the Common Pleas Court of Cuyahoga county. Mc-lntire had sought by injunction to restrain Holmes from proceeding to enforce an alimony order by the prosecution of proceedings in contempt for failure to obey the same. Mclntire was served by publication and on Oct. 3, 1921, a hearing was had on the divorce case. Mclntire was not present at this hearing, but he was represented by counsel. The court rendered a decree against Mclntire for a divorce and alimony. Counsel for Mclntire requested the judge that the decree be not signed by him until the counsel had had an opportunity to O. K. the same. This request was granted by the court, and thereupon Mclntire’s lawyer sent a letter to the bailiff advising him of that fact. As Mclntire did not pay the alimony, contempt proceedings were started, whereupon Mclntire filed his injunction suit. -His chief contention was that the court had no jurisdiction to render a decree for alimony. As the Court of Common Pleas held against him on this proposition, he prosecuted an appeal to the Court of Appeals. In Affirming the decree of the lower court, the court held:'

1. Under 11287 GC. the defendant in the divorce proceedings, by reason of the communication and the conduct of counsel, deducible therefrom, submitted himself to the judgment of the court, and there was such an appearance as is contemplated by the law.

2. In order to avoid appearing in a legal sense, in a court of law in pending litigation, it is necessary to qualify and define the limits and purposes of such appearance.