Morton v. Davezac

An action was commenced on April 23, 1923, by Louis J. Huwe, as treasurer of Hamilton county, Ohio, to foreclose a tax lien on 16 acres of land on Colerain pike in Hamilton county.

An affidavit for service by publication was filed. It was as follows:

"Hamilton County Court of Common Pleas.

"Louis J. Huwe, Treasurer, Hamilton County, Ohio, Plaintiff, vs. John H. Langdon et al., Defendant. No. 185771.

"Louis J. Huwe, being first duly sworn, says that he is the duly elected, qualified and acting treasurer of Hamilton county, and that service of summons cannot be made upon the following defendants because their places of residence are not known and cannot be ascertained with due diligence: John H. Langdon, if living, and, if dead, his unknown heirs and devisees; Charles J. Parish, if living, and, if dead, his unknown heirs and devisees; Home Loan Building Company, its successors or assigns; J.H. Whitney, first name unknown, and ______ Whitney, first name unknown, his wife, if living, and, if dead, their unknown heirs and devisees; Evelyn McCarthy, if living, and, if dead, her unknown heirs and devisees; H.E. Trinkler and ______ Trinkler, his wife, first name unknown, if living, and, if dead, his unknown heirs and devisees; C.M. Pendleton, if living, and, if dead, his unknown heirs and devisees.

"Affiant further says that this cause is one of those mentioned in Section 11292, paragraph 3, of the General Code of Ohio, being an action to foreclose a lien on real property.

"Further affiant sayeth not.

"Louis J. Huwe, "Treasurer, Hamilton County, Ohio.

"State of Ohio, Hamilton County — ss:

"Louis J. Huwe, being first duly sworn, deposeth and says that he is the duly elected, qualified and acting treasurer of Hamilton county, Ohio, and that the facts and allegations set forth in the foregoing affidavit are true as he verily believes.

Louis J. Huwe.

"Sworn to before me and subscribed in my presence this 1st day of June, 1923.

"[Seal.] Mildred Depperman,

"Notary Public in and for Hamilton County, Ohio."

Publication was duly made and approved by the court. On April 1, 1924, a decree of sale was entered, and the real estate in question was sold, on May 17, 1924, for $765 to Philip Morton. This sale was confirmed on June 3, 1924, and a deed was executed and delivered to Morton. The term of court ended on June 30, 1924, and on July 7, 1924, said deed was left for record. In September, 1924, Elizabeth Davezac filed her petition, and later an amendment thereto, in the original action. Philip Morton was made a party to these proceedings.

The allegations of the petition were to the effect that the proceedings, judgment, order for sale, sale, confirmation of sale, and deed were void and of no effect and constituted the taking of property without due process of law, for the reason that the affidavit for service by publication was insufficient in law and void, also that the price received for said property was so inadequate as to shock the conscience of the court.

The main question involved in the cause is as to the sufficiency of the affidavit.

There are only two parts of the affidavit to which reference need be made:

"(1) That service of summons cannot be made upon the following defendants because their places of residence are not known and cannot be ascertained with due diligence.

"(2) Affiant further says that this case is one of those mentioned in Section 11292, par. 8, of the General Code of Ohio, being an action to foreclose a lien on real property."

Section 11292, General Code, reads: "Service may be made by publication in any of the following cases: * * *

"3. In an action to foreclose a mortgage or to enforce a lien or other incumbrance or charge on real property, when the defendant is not a resident of this state or his place of residence cannot be ascertained. * * *

"8. In an action against a corporation organized under the laws of this state, which has failed to elect officers or to appoint an agent upon whom service of summons can be made, and which has no place of doing business in this state."

Section 11293, General Code: "Before service by publication can be made, an affidavit must be filed that service of summons cannot be made within this state on the defendant sought to be served, and that the case is one of those mentioned in the next preceding section."

There is no averment that service cannot be made within this state, either because the defendant is not a resident, or because his place of residence cannot be ascertained, and the only averment as to why service cannot be made, the affidavit being sworn to on belief, is that service of summons cannot be made upon the defendants because the affiant believes that their places of residence are not known, and believes that they cannot be ascertained with due diligence.

The record here itself shows that the affidavit does not conform to the provisions of the Code, permitting constructive service.

Provision for constructive service against domestic corporations is contained in Subsection 8, supra. There is nothing in the affidavit to show that the corporation has failed to elect officers, or to appoint an agent upon whom service of summons can be made, or that it has no place of doing business in the state. Therefore the affidavit is defective and not sufficient to predicate service by publication thereon. Millis v.Millis, 17 N.P., (N.S.), 254, 25 O.D., N.P., 370; Romig v.Gillett, 187 U.S. 111, 23 S. Ct., 40, 47 L. Ed., 97; Welch v.Farmers' Loan Trust Co., 165 F., 561, 91 C.C.A., 399; Gilbert v. Burke, 11 C.C., (N.S.), 282, 20 C.D., 586; Endel v. Leibrock,33 Ohio St. 254. The proceeding to sell was therefore void.

Counsel for plaintiff in error contends that the method of procedure taken by the defendants in error was improper, in that there was no defense to the original action, and that the judgment could not be set aside except on a showing of such a defense.

There was no defense to the tax lien, nor was one claimed. The ground for this proceeding was that the court was, upon the face of the record, without jurisdiction to determine the cause, and that therefore the defendants in error were seeking to pay the taxes and expenses and redeem the property. The court being without jurisdiction, it is unnecessary to pass upon the other matters presented.

The judgment of the court of common pleas will be affirmed.

Judgment affirmed.

HAMILTON and CUSHING, JJ., concur.