Consumers Plumbing & Heating Supply Co. v. Chicago Pottery Co. , 89 Ohio App. 329 ( 1950 )

This appeal comes to this court on questions of law from an order of the Common Pleas Court overruling defendant's motion seeking to discharge an attachment.

The plaintiff filed its petition setting forth a cause of action based on contract against defendant, a nonresident corporation which has not qualified to do business in this state under the provisions of Section 8625-4 et seq., General Code.

The petition was filed on January 3, 1950. Defendant's address, contained in the caption, was set forth as being in Illinois, and the opening paragraph described defendant as a foreign corporation not qualified to do business in Ohio. A precipe for service was filed with the petition and a summons was issued. The summons was returned on January 13, 1950, bearing the indorsement, defendant "not found."

With the petition and the issuance of the summons the plaintiff filed an affidavit in attachment stating that defendant was a foreign corporation which had not qualified to do business in Ohio, and an order of attachment "with notice to garnishee" was issued. Likewise, upon the filing of the petition an "affidavit for constructive service" was filed, and the first notice of the commencement of the action was published January 5, 1950.

It is the claim of defendant that the attachment proceeding was instituted prior to the "commencement of the action" and therefore is void. The theory advanced by defendant is based on the provisions of Section 11230, General Code, which reads as follows:

"An action shall be deemed to be commenced within the meaning of this chapter, as to each defendant, at the date of the summons which is served on him or on a codefendant who is a joint contractor, or otherwise united in interest with him. When service by publication is proper, the action shall be deemed to be commenced at the date of the first publication, if it be regularly made."

It is contended that until the date of the first publication of notice as provided by Section 11292, General Code, an action is not "commenced," and that an order of attachment issued prior thereto is void. It will be noted, however, that Section 11230, General Code, defining the time when an action shall be deemed commenced is, by its terms, limited to the subject matter contained in Chapter 2, Division I, Title IV, Part Third of the General Code, which is entitled "Limitations of Actions." The manner in which an action is commenced is defined by Section 11279, General Code, which is part of Chapter 4, Division II of the same title of the General Code, and is designated "Commencement of Action." That section provides:

"A civil action must be commenced by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued thereon."

The grounds of attachment are defined in Section 11819, General Code, found in Chapter 2, Division VI of Title IV.

Section 11819, General Code, in part, provides:

"In a civil action for the recovery of money, at or after its commencement, the plaintiff may have an attachment against the property of the defendant upon any one of the grounds herein stated * * *."

The words, "at or after its commencement," as used in that section, refer to the manner of bringing the action defined in Section 11279, General Code. Until an action is "commenced" a court is without power to authorize the constructive service provided for by Section 11292, General Code. The institution of an attachment proceeding is the only means of "commencing" an action seeking a judgment for money only in cases where personal service cannot be had.

In the case of Pilgrim Distributing Corp. v. Galsworthy,Inc., 148 Ohio St. 567, 573, 76 N.E.2d 382, the court said:

"That an attachment proceeding in an action in personam is a separate or ancillary proceeding is clear. That an attachment proceeding in an action in rem is the action is also clear."

In the case of Endel v. Leibrock, 33 Ohio St. 254, at page 267, Chief Justice Johnson said:

"In an attachment proceeding, which is ancillary to the action, where personal service cannot be made, service by publication cannot be made, unless an attachment is lawfully issued and property taken under it, or reached by garnishee process, which the court may act on, and no attachment can issue without the requisite affidavit."

See, also, Francis v. Allen, 51 Ohio Law Abs., 225, 79 N.E.2d 803; 32 Ohio Jurisprudence, 445, 455, Sections 56, 66.

The Supreme Court of the United States in the case ofRorick v. Devon Syndicate Ltd., 307 U.S. 299, 83 L. Ed., 1303,59 S. Ct., 877, third paragraph of the syllabus, stated:

"Under the General Code of Ohio, Sections 11279, 11819, when a civil action for money has been begun by filing the petition and issuing summons, an attachment or garnishment is not premature because obtained prior to personal service or before commencement of service by publication."

See pages 306 and 307 of the Rorich case for the court's consideration of the rule as stated in the third paragraph of the syllabus.

The case of Crandall v. Irwin, 139 Ohio St. 463,40 N.E.2d 933, 139 A. L. R., 895, upon which defendant relies, is one dealing with the subject of "limitation of actions."

In the first paragraph of the opinion by Turner, J., it is said:

"Appellee made application for a rehearing on the ground that the petition was filed within the six-year limitation, although no service was had within sixty days thereafter. The rehearing is limited to this phase of the case."

That case, therefore, does not deal with the question here under consideration.

Likewise the case of Pilgrim Distributing Co. v. Galsworthy,Inc., supra, relied on by defendant, was primarily concerned with whether an attachment ordered before a summons was issued was void. The court, after disposing of the question whether the discharge of an attachment before trial on the merits was an appealable order, affirmed the order of the trial court discharging the attachment, for the reason that no precipe for summons was filed or summons issued as disclosed upon the face of the record, and, therefore, the action had not been commenced as provided by Section 11279, General Code.

The court in disposing of this question said, at page 579:

"As no summons was issued or publication made at the time of the levy of the attachment, such attachment was void. The right to an attachment against the property of defendant is a statutory right and unless the conditions of the statute are complied with, no right ripens thereunder.

"In the case of Seibert v. Switzer, 35 Ohio St. 661, it was held in paragraph one of the syllabus:

"``An attachment, under the Civil Code, is an auxiliary proceeding in an action, which may be sued out by the plaintiff, at or after the commencement of such action, by filing a petition and causing a summons to issue thereon.'

"In the Crandall case, supra, we said of the Seibert v.Switzer case:

"``It will thus be seen that the question in that case was themanner of commencing an action. Time was involved only to the extent of showing that the plaintiff had gotten the cart before the horse, i. e., he had filed an auxiliary proceeding before commencing an action in the manner provided by statute. Of course, no jurisdiction could be obtained by attachment until plaintiff had followed the statute as to the manner of commencing a civil action.'

"We are of the opinion that the Court of Appeals committed no error in the instant case by holding that as the attachment was levied before the action was legally commenced, the attachment was void and should be set aside."

That case, therefore, supports the plaintiff's contention rather than that of the defendant.

For the foregoing reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

McNAMEE and HURD, JJ., concur.