Dzema v. Pittsburgh & Lake Erie Rd.

This cause comes into this court on a petition in error to the common pleas court of Cuyahoga county. The case was originally started against several defendants, among whom was the New York Central Railroad Company, the Pennsylvania Railroad Company, the McClintic Marshall Company, the River Terminal Railway Company, and the defendant in error, the Pittsburgh Lake Erie Railroad Company, for damages alleged to have occurred to the plaintiff in the yards of the McKinney Steel Company, Cuyahoga county, Ohio. Service was made upon the various defendants, and summons was sent to the sheriff of Mahoning county. A summons was properly served out of the county upon the Pittsburgh Lake Erie Railroad Company, the only defendant that was finally left in the case, for during the trial all the other defendants had been let out, apparently because there was no liability against them, although there was an allegation in the petition that they were joint tort-feasors in the commission of the act for which suit was brought. The McClintic Marshall Company was not properly named, and therefore it was voluntarily dismissed from the case. That left the action alone against the Pittsburgh Lake Erie Railroad Company, and at the close of the plaintiff's testimony, at the instance of the Pittsburgh Lake Erie Railroad Company, it was dismissed from the action on the ground that the court had no jurisdiction over said railroad company, and judgment was entered in favor of the defendant, the Pittsburgh Lake Erie Railroad Company. It is to reverse that judgment that error is prosecuted here.

It seems that we are compelled to affirm the judgment of the court of common pleas upon the authority of the case ofBucurenciu v. Ramba, 117 Ohio St. 546, 159 N.E. 565, decided December 21, 1927, where it seems the precise question has been decided by our Supreme Court, although the writer cannot desist from questioning the soundness of that decision. From an analysis of the case last above referred to, it will be seen that the case is on all fours with the instant case, but the opinion of that court was based upon the case of Dunn v. Hazlett, 4 Ohio St. 435. An examination of that case will convince one that the cases are not parallel and that the Dunn case is not an authority in point. In the Dunn case, 4 Ohio St. 435, an action was brought by the plaintiff against two defendants upon a joint contract, and service was made upon one in the county of his residence, and service was made upon Dunn, the other defendant, outside of the county. In order to hold either of these parties, inasmuch as they were sued on a joint contract, both must be held, or neither, because the contract alleged was a joint contract, and a proof of a contract against one of them alone would not correspond with the pleadings. In that case the defendant Dunn filed what is called a "general issue." I do not know whether he set up that he was not a joint contractor, or that he was not a partner, or whether it was just a general denial, as the pleadings are not available, but upon the trial of that issue the court found there was no joint contract, and directed a nonsuit in favor of both defendants, and that would have to be done even though there was an individual contract made by Dunn, and even though service had been made upon him in the county where the suit was brought. Then upon motion of the plaintiff the nonsuit was set aside. The plaintiff then dismissed his action against the resident defendant and filed an amended declaration alleging an individual contract with Dunn, thus changing the issues entirely, and a motion was made by Dunn to dismiss proceedings against him on the ground that no service had been made upon him in the county in which the suit was brought, and that he was a resident of another county. The court overruled this motion, an exception was taken, and then Dunn filed a general denial. A trial was had and a judgment was rendered against Dunn. A motion in arrest of judgment was made and overruled, and error was predicated upon the overruling of the motion to dismiss and the subsequent proceedings, and the Supreme Court in that case held that the filing of the general denial in the first instance did not enter his appearance; and that case is the basis of the decision in the case of Bucurenciu v. Ramba.

Now, as already pointed out, there was a complete failure not only against one, but against both, in the original suit, which the defendant answered, because it was on a joint contract, and there was proof that it was no joint contract, and therefore, whether service was obtained upon Dunn within the county or not, judgment could not be entered against either; and then the plaintiff had the nonsuit set aside; and the court was wrong in setting it aside. The plaintiff then dismissed his action against the resident defendant and filed an amended declaration against Dunn alone upon his individual contract, and, of course, no summons had been served upon him in the county and he took the earliest opportunity to raise the question of jurisdiction by a motion, which was proper as the case then stood, and it should have been granted, and the Supreme Court, in 4 Ohio State, was absolutely right; but I cannot see how that is an authority for the decision in the Bucurenciu case, for it must be remembered that in that case the parties were sued in Mahoning county, the petition alleging the defendants to be joint tort-feasors, and service was made upon the resident defendant in Mahoning county, and the defendant Cohen was brought in by service out of the county, and Cohen, thus brought into court, answered by a general denial, and that does not necessarily raise the question of jurisdiction. A general denial only traverses the things that are set forth in the petition, and it was not necessary to set forth the fact that this person was a nonresident of the county; nor does it appear that such an allegation was in the petition, or anything that would raise the question of jurisdiction; but the case at bar, the writer of this opinion will admit, is within the ruling laid down by the Supreme Court in the Bucurenciu case.

Now it must be remembered that a suit on a joint contract, like that in 4 Ohio State, and a suit against joint tort-feasors, are not parallel. A suit may be brought against joint tort-feasors and a recovery had against each or any of them, but that is not so in a joint contract; the judgment must be against all or none. Now the court, it seems to me, begs the question when it says that the general denial is a plea to the jurisdiction. The authorities all seem to hold that the question of jurisdiction may be raised either by a motion or by an answer, and, where it cannot be raised by a motion, and it is conceded by both parties it could not be in the instant case, it seems to the writer of this opinion that an answer should have been filed setting up the fact that this was not a joint liability, that they were not joint tort-feasors, and that the defendant in question was a nonresident of Cuyahoga county, and that there had been no service made upon it in Cuyahoga county, and request made that it go hence for the want of jurisdiction, as was done in Drea v.Carrington, 32 Ohio St. 595, where the jurisdiction was attacked both by motion and by answer raising the jurisdictional question (and it was not by general denial), the Supreme Court holding that this answer raised an issue of fact which was triable to a jury; at the same time holding that, where the petition set up a joint liability, the jurisdiction over a defendant served outside of the county could not be reached by motion. In the instant case the defendant could have gone on and filed, in addition to the allegations in the answer setting up the want of jurisdiction, a plea of general denial, or any specific defense he might have had, and it would have been the duty of the court to have heard the question of jurisdiction first, and evidence could have been taken and the issue of jurisdiction submitted to the court or jury. See 32 Ohio State, supra. Then if it was found that this defendant was not within the county and there was no joint liability, the court or jury, of course, would have to have found in his favor. That would have ended the lawsuit so far as he or it was concerned.

Now to say that the plea of general denial is a plea to the jurisdiction is begging the question. It is an entry of appearance, for a party might well waive the jurisdictional question as to person and voluntarily enter its appearance, and I think the books are filled with cases to the effect that the filing of a pleading where not to the jurisdiction of the court is an entry of appearance, even where that pleading is a plea of general denial only, for it has been held that a plea of general denial is an entry of appearance, and, even though the case would fail against the other defendants, if this particular defendant was rightfully in court, not having raised the question of jurisdiction except by a plea of general denial, the writer thinks, but for the decision of the Supreme Court heretofore referred to, the court had acquired jurisdiction over the defendant in question by its voluntary acts.

It seems to the writer of this opinion that that is in accord with the decision of our own Supreme Court in the case of City ofElyria v. Meacham, decided by the Supreme Court, 113 Ohio St. 139, 148 N.E. 689, where exactly the same question was raised, the New York Central having been left out of the case; and there the Supreme Court reversed the common pleas court and the Court of Appeals on the merits, and not for want of jurisdiction over the city of Elyria.

In a case recently decided, involving the right of a justice of the peace to sit in a liquor violation case where the justice's compensation was a part of the fine and costs, which would bring it within the Tumey case decided by Judge Taft of the United States Supreme Court (Tumey v. State of Ohio, 273 U.S. 510, 47 S. Ct., 437,71 L. Ed., 749, 50 A.L.R., 1243), it was held that a plea of "not guilty" did not raise the question of jurisdiction of the court over the person of the defendant. The plea of not guilty is just as broad as a general denial, and the question of the jurisdiction of the court over the person, the court having jurisdiction of the subject-matter, must be raised, as Judge Taft held, and as Judge Marshall in his opinion in the case of Tari v.State, 117 Ohio St. 481, 159 N.E. 594, held, affirming the Court of Appeals of Cuyahoga county, that in order to avail oneself of want of jurisdiction of the justice it must be raised in the first instance, and if it had not been raised as it was in the Tumey case, the court would have had jurisdiction.

I cite these cases to show that a plea of not guilty does not raise the question of jurisdiction, if the court had jurisdiction over the subject-matter, and it must be admitted that the court had jurisdiction of the subject-matter in the instant case, and, but for the opinion of the Supreme Court, which we deferentially follow, we should be called upon to reverse the judgment in the instant case, for the writer of this opinion at least would have thought that the court had full jurisdiction to determine this issue; but, in view of that decision, however, we can do nothing other than to affirm the decision of the common pleas court.

I have written this much with all due deference to the opinion of the Supreme Court and the learned judge who wrote it, because it seems so contrary to all the authorities upon how the question of jurisdiction may be raised. The judgment will nevertheless be affirmed.