Beachler v. Ford

These causes are submitted to the court on the applications of plaintiffs, appellees herein, in both of the causes for a rehearing of the causes. The applications are based upon the following grounds:

1. If the judgments against E.T. Ford are void because of defective service, as heretofore found by this court, then E.T. Ford, by subsequent actions, has waived the question of want of jurisdiction over his person and has entered his appearance in these cases, and cannot now be heard to complain because of the judgments.

2. E.T. Ford entered his appearance in both of the cases by filing a motion before the judgments were rendered and, therefore, was properly before the court when the judgments were rendered.

3. The holding of the Court of Appeals is contrary to Section 11364, General Code, and the decisions announced thereunder.

These grounds will be considered in the order mentioned.

1. The various motions filed by E.T. Ford were filed after the entry of judgment in each of the cases, and after the period in which motions for new trial might be filed had expired.

The motions were filed during term, to vacate the judgments upon the grounds, among others, that service upon E.T. Ford was defective, that is, that by reason of the affidavit for service by publication being defective, the court did not have jurisdiction of his person.

The motions were predicated upon the common law and not upon statutory provisions.

The appeals taken by E.T. Ford were from the orders overruling the motions to vacate the judgments, and not from the original judgments in the cases.

Although the notices of appeal given by E.T. Ford designate the appeals as upon questions of law and fact, and bond for appeal was given in each case, the nature of the proceedings in which the orders appealed from were made was such that appeals on questions of law and fact did not lie and the appeals constituted appeals on questions of law only and were so perfected and submitted.

If E.T. Ford had based his rights to have such judgments vacated, upon irregularities or errors in the judgments alone, the motions themselves would have constituted such appearances as would have had the effect of waiving the questions of jurisdiction, but as he based his rights to relief on the additional ground of want of jurisdiction, the motions did not constitute such appearances as would have the effect of waiving the question of the jurisdiction of the court to render such judgments at the time the judgments were rendered. Marsden v.Soper, 11 Ohio St. 503.

However, such motions, being based on irregularities and errors in the judgments, in addition to alleged want of jurisdiction, did constitute non-retroactive entries of appearances of E.T. Ford as a party defendant in the causes, and although such non-retroactive entries of appearance did not have the effect of remedying the want of jurisdiction in the court at the time the judgments were rendered they did have the effect of conferring jurisdiction of the person of E.T. Ford upon the court in all subsequent proceedings in the causes.

Although appeals from the original judgments would have constituted general entries of appearance in the actions, the appeals from the orders overruling the motions to vacate constituted simply entries of appearance insofar as such orders were concerned.

For the reasons mentioned, the filing of the motions and notices of appeal and the giving of appeal bonds by E.T. Ford did not constitute such entries of appearance by him in the actions as would preclude him from the relief by way of vacation of judgments afforded him on his appeals from the judgments overruling the motions.

2. Insofar as plaintiffs' contention that the appearance of E.T. Ford was entered by Goubeaux Goubeaux, attorneys, moving for an order "on behalf of Charles C. Ford, et al., defendants," requiring plaintiffs to deposit court costs, is concerned, the evidence tends to prove, and it was conceded by counsel on the submission of the case, that Goubeaux Goubeaux did not represent E.T. Ford in the actions.

3. As the court did not have jurisdiction of the person of the defendant E.T. Ford, his substantial rights were affected by the rendition of the judgments against him and his substantial rights being affected thereby the error in the rendition of the judgments does not come within the classes of errors or defects referred to in Section 11364, General Code.

For the reasons mentioned, the applications for rehearing in both the above captioned cases are denied.

Applications denied.

HORNBECK, P.J., GEIGER and GUERNSEY, JJ., concur.

GUERNSEY, J., of the Third Appellate District, sitting by designation in the Second Appellate District.