Barker v. Wills

Francis M. Wills was plaintiff below and will be referred to in this opinion as plaintiff. Plaintiff in error, the board of county commissioners of Knox county, was defendant below and will be referred to in this opinion as the defendant.

Plaintiff alleges in the petition that he is a taxpayer of Tuscarawas county and brings this action as such in the probate court of Tuscarawas county, Ohio; that defendant is the duly elected, qualified, and acting board of county commissioners of Knox county, Ohio; that in October, 1931, the probate judge of Knox county, Ohio, issued a warrant for the removal of Fred Bailey and Ida Bailey, his wife, and their four minor children, aged from three to fifteen years, from Knox county into Tuscarawas county, and in accordance therewith they were so conveyed and delivered to plaintiff, who is superintendent of the Tuscarawas County Infirmary. Then a number of allegations are made concerning the several places that the Baileys had lived since 1926, that the Baileys claim a legal residence and settlement for themselves and their said minor children within Knox county, Ohio, that they could have supported themselves and children had they not been illegally removed from said Knox county, and that by reason of said removal they are now indigent and require relief. The prayer is for determination of the legal settlement of the Baileys, and for their removal to the county of their legal settlement, and for other relief. The probate judge issued to said defendants a notice of hearing said application, which was sent to the sheriff of Knox county, Ohio, who made return showing he had delivered a true copy to each of said defendants.

To this petition the defendants appeared solely for the purpose of a motion, and, disclaiming their intention of entering their appearance for any purpose whatsoever except for the purpose of the motion, they moved the court to dismiss the proceedings for the reason that said court has no jurisdiction over the persons of the defendants, inasmuch as there are no legal provisions for holding them in Tuscarawas county without the service of any legal summons or writ therein. This motion was overruled, to which defendants excepted. The defendants then filed their answer stating in the first defense that said court had no jurisdiction in law to entertain and determine the questions set forth in the petition, and that no jurisdiction had been obtained over the persons of these defendants, inasmuch as none of them were served with legal process in Tuscarawas county and there is no provision of law for summoning or serving process upon them for such a hearing outside of the county of their residence, to wit, Knox county. Two other defenses were set forth in the answer, but we do not consider them material to this opinion.

Plaintiff attempted to bring this action under Section 3484-1 of the General Code, which reads as follows: "If a person requiring relief whose legal settlement has been ascertained to be in some other county of the state refuses to be removed thereto, pursuant to Section 3482 or to Section 3484 of the General Code, on complaint being made by the officer whose duty it is to remove him, the probate judge of the county in which the person is found shall issue a warrant for such removal. In addition to all other proceedings for the removal of a person requiring relief to another county of the state wherein his legal settlement may be, the township trustees or the proper officers of the municipal corporation in which a person requiring public relief is found or resident taxpayer of the county may institute proceedings in the probate court of such county to determine the legal settlement of such person and procure his removal thereto. Such proceedings shall be by petition which shall be sufficient if it states the facts required by Section 3481 of the General Code to be ascertained. The county commissioners of the county in which such person is alleged to have a legal settlement shall be made parties and summons issued to them as in civil actions. The proceedings may be set down for hearing at any time after the return day of the summons and shall be deemed at issue without further pleading. If upon the evidence the person is found to require public relief or support and that he is legally settled in the township and county alleged in the petition a warrant for his removal to said county shall be issued by the probate judge and judgment shall be rendered for costs and all charges and expenditures for which the commissioners of said county shall be liable by virtue of notice similar to that provided for in Sections 3482 and 3483 of the General Code, which notice for the purpose of action herein provided for may be given by a board, officer or person authorized to bring such action." (The italics are ours.)

Section 11268 of the General Code provides as follows:

"Actions for the following causes must be brought in the county in which the subject of the action is situated, except as provided in the next two succeeding sections:

"1. For the recovery of real property, or of an estate or interest therein;

"2. For the partition of real property;

"3. For the foreclosure of a mortgage, or the enforcement of a lien or other incumbrance or charge on real property."

Section 11282 of the General Code provides: "When the action is rightly brought in any county, according to the provisions of the next preceding chapter, a summons may be issued to any other county, against one or more of the defendants."

Section 11980 of the General Code provides that actions for divorce or alimony shall be brought in the county where the plaintiff resides, or where the cause of action arose.

Section 11983 of the General Code provides that "when the defendant [in a divorce case] is a resident of this state, the clerk shall issue a summons, directed to the sheriff of the county in which he or she resides or is found."

Section 6308 of the General Code provides: "Actions for injury * * * caused by the negligence of the owner or operator of a motor vehicle, may be brought, by the person injured, against such owner or operator in the county wherein such injury occurs. A summons in such action against any defendant or defendants shall be issued to the sheriff of any county within this state wherein such defendant or defendants reside and may be served as in other civil actions, notwithstanding any contrary provision of law for the service of summons in civil actions."

Section 3484-1 of the General Code says that summons may be issued to the county commissioners as in civil actions; but nowhere do we find any authority for sending the summons issued in one county to the sheriff of some other county in the state for service, as is set forth in the sections above.

Therefore, the probate court erred in not sustaining the motion made by defendants, and there is no authority in the statutes for sending notice from Tuscarawas county to Knox county, or any other county in the state for that matter, under Section 3484-1, General Code, for the sheriff to make such service. The common pleas court erred in affirming the judgment of the probate court, and the probate court obtained no jurisdiction over the persons of the defendants, and had no jurisdiction to hear and determine the cause of action against them without having jurisdiction over their persons.

We have studied further to ascertain the object of the General Assembly in enacting this statute, and, to make it workable, we think that the words, "of such county," italicized in the above copy of the statute, refer back to the other county of the state, wherein the person requiring relief may have a legal settlement, and that the word, "thereto," which we have italicized as above, also refers back to that same county. If you construe the words, "of such county," as referring to the county in which the resident taxpayer resides, then the word, "thereto," must also refer to the same county, and it would not be necessary to make any removal of the person requiring relief.

Therefore, we hold the construction of this statute to be that the true meaning of the sentence containing the italicized words is as follows: "In addition to all other proceedings for the removal of a person requiring relief to another county of the state wherein his legal settlement may be, the township trustees or the proper officers of the municipal corporation in which such person requiring such relief is found; or a resident taxpayer of the county may institute proceedings in the probate court of saidcounty wherein the legal settlement of the person requiringrelief may be, to determine the legal settlement of such person and procure his removal to said county."

Such construction is further sustained by the fact that Section 3484 of the General Code was amended, and Section 3484-1 enacted, as parts of the same bill. Section 3484 of the General Code, at its close, provides: "The trustees of such township, or proper officers of a municipal corporation, may furnish him the necessary relief and collect the amount thereof from such board of county commissioners by a civil action, in the name of such township trustees, or of such municipal officers in the court of common pleas of the county in which such infirmary is situated."

This would be the county in which the defendant county commissioners reside.

Section 3484-2 of the General Code provides that when medical service and certain other service is rendered a person who has a legal settlement in the county "other than the one in which such service is rendered, and is unable to pay the expenses of such service," after proper notice to the county commissioners of the county of the legal settlement, the said county of legal settlement shall be liable for the expenses of such service at the established rate of the municipality or township therefor. No statement is made in said section as to where a suit should be brought in such case, but there can be no dispute that it must be brought in the county where the legal settlement is claimed to have been made.

Therefore, the probate court of Tuscarawas county not only had no jurisdiction of the persons of the county commissioners in this case, but also had no jurisdiction to try this case, and if the plaintiff desires to bring an action under Section 3484-1, General Code, it must be brought in Knox county, Ohio. The petition is dismissed, at the costs of the plaintiff.

Petition dismissed.

SHERICK and LEMERT, JJ., concur.