
    Stiving v. Anderson, Exr., et al.
    (Decided September 20, 1934.)
    
      Messrs. Reed & Beach, for plaintiff in error.
    
      Messrs. Weldon & Huston, for defendants in error.
   Lemert, J.

This is an error proceeding from the Common Pleas Court of Richland county, where an action was instituted upon a written guaranty for payment for five shares of the preferred stock and accumulated dividends of the Shelby Candy and Manufacturing Company, amounting to $595.33, the guaranty relied upon being as follows:

“In consideration of the sum of One Dollar and other valuable consideration, for the purchase of five shares of the Preferred Stock of The Shelby Candy and Manufacturing Company by Katie M. Stiving, the undersigned hereby guarantee to said Katie M. Stiving that in the event of the liquidation of said, The Shelby Candy and Manufacturing Company, they will pay her the sum represented by the par value of said stock and accumulated dividends of any proportionate amount that may remain unpaid thereon after exhausting the assets of said Company upon liquidation.

“Witness our hands this 15th day of February) 1916.

“A. H. Anderson

“H. L. Gump

“W. 0. Gump

“F. J. Kotz

“J. 0. Taylor

“S. Schreffler

“Geo. W. Coble.”

The record discloses that several answers and motions were filed, but before issue was finally joined C. J. Anderson, executor of the estate of A. H. Anderson, on October 19, 1933, filed a motion asking the court for an order requiring the plaintiff to bring J. C. Taylor and S. Schreffler, or their legal representatives, into court, or that said cause be dismissed.

Hearing was had on this motion on January 20,1934, and said cause was dismissed without prejudice, for failure to bring J. C. Taylor and S. Schreffler, or their legal representatives, into court.

We note that a summons and alias summons were issued for J. C. Taylor, one of the guarantors, and that in each instance the summons was returned showing that the whereabouts of J. C. Taylor could not be ascertained, the attorney for plaintiff saying that after a diligent search the best information obtainable was that he had left the state and was either in Chicago or some place in Indiana.

With reference to the service on S. Schreffler, it was admitted during the hearing in the court below that The Shelby Candy and Manufacturing Company was adjudged bankrupt on April 2,1926, and that all of its assets were exhausted in payment of its debts. It was further admitted that S. Schreffler was deceased, and that letters testamentary were issued April 7, 1922; that his final account was filed December 17, 1924; and that the account was approved January 19, 1925, four years having elapsed after the appointment of an executor before plaintiff’s right of action accrued.

The petition in error in this case sets forth the following grounds:

“(1) The Court erred in dismissing said cause without prejudice.

“(2) The Court erred in making mandatory order that Plaintiff must secure service on the parties Defendant.

“ (3) The Court erred in holding that the guarantee in said action was joint instead of joint and several.

“(4) The Court erred in demanding service on the Defendants, J. C. Taylor and S. Schreffler, when service could not be had. ’ ’

In the presentation of this case, considerable time was given to a discussion, both orally and in the briefs, of the question whether or not the guaranty presents or indicates a joint or a joint and several liability. Whether the guaranty hereinbefore mentioned is joint, or is joint and several, the record discloses that all of the guarantors of this guaranty have been made defendants in this action, and a summons has been issued against each and all of them, so that an action has been commenced against all of the defendants in accord with Section 11279, General Code; and it may be well to note here that constructive service could not be had against any of the defendants, as provided in Section 11292, General Code, because plaintiff is asking for personal judgment and none of the provisions under said section apply.

Our attention is then directed to Section 11299, General Code, which provides as follows:

“When service has been made on one or more defendants, but not on all, the plaintiff may proceed as follows:

“1. If the action is against defendants jointly indebted upon contract, against the defendants served, unless the court otherwise directs.”

In the case of Bazell v. Belcher & Doral, 31 Ohio St., 572, the syllabus reads:

“Section 77 of the code [analogous to Section 11299] authorizes a judgment against such joint contractors as have been ‘served’ with summons in the action, in those-cases only, where the action was commenced by the filing of a petition and the issuing of a summons against all of the joint contractors.”

We also note the case of Yoho v. McGovern, 42 Ohio St., 11. The court applies Section 11299 [5054 Rev. Stat.] to an action against’ two joint makers of a promissory note, one of whom was served, and the other not served because he was a non-resident, and the court there held that the action could proceed to judgment against the debtor served with summons, and in this connection the court said, at page 16 of the original report:

“A careful examination of the authorities will demonstrate that the principle upon which this rule is grounded is, that if one of several joint contractors is beyond the jurisdiction of the court — out of the reach of its process — this creates a necessity of allowing the action to proceed against those within the jurisdiction, and this without affecting the liability of the former, in order to avert an entire failure of justice.”

Applying the above statutes and holdings to the instant case, we are of the opinion that the court below committed error in the dismissal of said cause, and we are, therefore, bound to reverse this case, which is accordingly done, and the cause is remanded to. the Court of Common Pleas for further proceedings according to law.

Judgment reversed and cause remanded.

Shekick, P. J., and Montgomery, J., concur.  