
    Smith v. Hoover.
    1. The only mode in which jurisdiction, m inmium, can be obtained over the defendant company in suits authorized by the act of February 37, 1846 (S. & C. 1188), was prescribed by section two of the act: by service of process at their usual place of business within the county wherein the suit was brought.
    3. In actions against unincorporated companies by name, as authorized by that act, constructive service on defendants by publication, as authorized by section thirty-five of the justices’ code of March 14,1853 (S. & C. 769), when service of summons cannot be made and property has been seized in attachment, cannot be resorted to in lieu of actual service, at the usual place of business of the company within the county.
    3. The appearance of a defendant in court for the sole purpose of objecting, by motion, to the jurisdiction of the court over his person, is not an appearance in the action or a waiver of any defect in the mode or manner by which such jurisdiction is obtained.
    
      Error to the District Court o£ Tuscarawas county.
    On May 13, 1878, Smith & Curtis commenced an action before T. TI. Mozena, Justice of the Peace of Mill township, Tuscarawas county, against G. C. Hoover & Co., “a 'firm doing business in the state of Ohio,” to recover $178.02 on a special contract. The summons was returned, indorsed, “ The within named defendant not found in my county.” At the commencement of the action an affidavit for an attachment was filed with the justice by the plaintiff, on the ground “that the said defendants were non-residents of Tuscarawas county, Ohio.” A writ of attachment, with notice of garnishment to W. A. Bovey & Co., were placed in the hands of the constable with the summons, which writ was returned served “ by delivery to W. A. Bovey in said Mill township, a copy of this order and a written notice to appear and answer,” &c. On May 23, 1878, W. A. Bovey, of 'the firm of W. A. Bovey & Co., appeared’ before the justice, and, on oath, stated that W. A. Bovey & Co. were indebted to G. C. Hoover & Co. in the sum of $200.00. ' Thereupon, the justice made the following order : “ Having failed to get service on the defendants, G. C. Hoover & Co., I adjourn this action until July 5, 1878, at 9 o clock A. m., for the purpose of getting service of defendants by publication.”
    Proof of publication having been made, the defendants filed the following motion:
    
      “ And now come the said' defendants, G. C. Hoover & Co., for the purpose of this motion only, and expressly disclaiming any and all intention or purpose of making or entering an appearance upon the merits of this case, or for any other purpose save that contained in this motion^ and here moves the said T. H. Mozena, J. P. aforesaid, to dismiss this action, discharge the garnishee herein, and dissolve the attachment issued herein, for the following causes, to wit:
    “ 1st. That said justice of the peace has no jurisdiction of the persons of said defendants, or either or any of them.
    “ 2nd. That the said justice of the peace has no jurisdiction of the property of said defendants. “ 3rd. That no service of process has been made upon defendants as required by law.
    “4th. The answers of- the garnishee herein are wholly insufficient to give said justice of the peace jurisdiction of the property of these defendants, as said answers fail to disclose affirmatively that said garnishees are indebted to the said defendants ; and, even if they were, it could give said J. P. no jurisdiction against said firm.
    “ Yeagley, Douthitt & Healea,
    
      “ Attorneys for Defendants.”
    This motion was overruled, and defendants filed-the following motion:
    “ And now comes the said G. O. Hoover & Co., defendants, for the purpose of this motion only, and disclaiming all intention or purpose of entering any appearance in MoüXfsDef’ts-this cause as to the validity or invalidity of the cause of action sued upon, but appearing for the purpose of this motion, and for no other purpose, and waiving none of the rights of defendants herein, here moves said justice of the peace to discharge the attachment hereinbefore issued in this cause, and dismiss the action, for the following causes, to wit:
    “'1st. That said affidavit in attachment is insufficient inlaw to maintain an attachment or justify the issuing of an order of attachment, and can confer no jurisdiction upon said justice in this action, either of the person or property of said defendants*
    “ J. W. Yeagley and Douthitt & Healea,
    “ Attorneys for Defendants.”
    This motion was also overruled. Whereupon, the justice-proceeded to hear the cause (no one appearing for defendants), and upon the testimony offered by the plaintiffs rendered judgment for the plaintiff for the sum claimed, and ordered the garnishee to pay the amount thereof into court.
    The defendants filed a petition in error in the court of common pleas, where the judgment of the justice was affirmed. Rut upon like petition in error, the district court reversed the judgment of the court of common pleas and the justice of the peace. £{
    
    
      This proceeding is prosecuted to reverse the judgment of the district court.
    
      J. T. McCullough andJ. II. Barnhill, for plaintiff in error:
    It appears by the record that all of the parties to the action, Smith & Curtis, the plaintiffs, of the city of Cleveland; Gr. C. Hoover & Co., the defendants, of Dennison, Tuscarawas county, who still held property there, although Gr. C. Hoover, of said firm, had removed to Columbus, and W. A. Bovey &■ Co., the garnishee and successor of Gr. C. Hoover & Co., at Dennison, Ohio, were partnerships formed for, and doing business, or holding property in the state of Ohio, in their respective partnership names, and capable of suing and being sued in such firm names, according to.section 5011, Rev. Stats. Ohio.
    ' A partnership formed for, and doing business or holding property in the state of Ohio in its firm name, is in law a person, and can be sued in such firm name in attachment the same as a natural person, or a corporation, under said section 5011, as in force when this action was begun. Rev. Stats. Ohio, § 5011; Whitman v. Keith, 18 Ohio St. 144; Champion Machine Co. v. Huston, 24 Ohio St. 503.
    The affidavit is sufficient in law to support the attachment and proceedings in garnishment, against the property of a defendant non-resident of the county, whether a natural person, a corporation having no officer, or a partnership, as in this case, having no place of business within the county where process of a justice of the peace can be served as is directed by law. Rev. Stats. § 6489; Whitman v. Keith, 18 Ohio St. 144; Champian Machine Co. v. Huston, 24 Ohio St. 503; Cresser v. Young, 31 Ohio St. 57.
    In all cases against any class of defendants in attachment, where the processes cannot be served at the place or in the manner prescribed by the law; but where property is seized or a garnishee duly served with notice, the justice has acquired jurisdiction of the property, and it cannot be ousted by any adverse answer or denial of the garnishee, and shall continue the case for publication to non-resident defendants. Rev. Stats. Ohio, § 6496; Nat. Bk. N. London v. L. S. & M. S. R. W. Co., 21 Ohio St. 230; Paine v. Moorehead, 15 Ohio, 436; Cochran v. Lowing, 17 Ohio St. 409.
    It is not necessary that the garnishee by his answer, shall affirmatively disclose possession of property or indebtedness to the defendant, where the action is against a non-resident to give the justice of the peace jurisdiction. Nor is the plaintiff in any manner concluded by such answer, if the same were made; but'in this case the answer is affirmative. Rev. Stats. Ohio, § 6504; Nat. Bk. N. London v. L. S. & M. S. R. W. Co., 31 Ohio St. 230; Myers v. Smith, 29 Ohio St. 120; Penn. R. W. Co. v. Peoples, 31 Ohio St. 537.
    The defendant by grounds No. 4, in his motion No. 1, and by motion No. 2, does more than object to the jurisdiction of the justice, and has, in law, entered an appearance by answering to the merits of the action, notwithstanding its disclaimer of such intention, and • thereby submitted to the jurisdiction of the justice of the peace. Evans v. Iles, 7 Ohio St. 236; Shafer v. Barry, 7 Ohio St. 309 ; Maholm v. Marshal, 29 Ohio St. 614.
    The cases of Brownson v. Metcalf, 1 Handy, 189, and Dobell v. Loker, 1 Handy, 574, were in a court having no original jurisdiction in attachment, against the property of defendants on the grounds of non-residence within the county, and were under section 5521, Rev. Stats., against firms nonresidents of the state of Ohio, while this action is under section. 6489 Rev. Stats., in a court which has jurisdiction against the property of defendants, non-residents of the conntjr, including partnerships formed for and doing business or holding property in the firm name within the state of Ohio.
    
      J. W. Yeagley and Douthitt aud Healea, for plaintiff in error:
    I. The record shows that suits were brought against G-. O. Hoover & Co. in attachment, as non-residents, in their firm name. At common law no action could be maintained against any company, not incorporated, without disclosing the names of the several partners composing such firm. 1 Ohitty’s Plead. 256 (12 Am. ed.) and cases cited, in notes (i) and (1). In Ohio such action can only be maintained by favor of the statute passed February 27,1846. S. & O. Stat. 1138, § 1. The process against such company or firm shall be served by copy left at their usual place of doing business within the county. S. & O. 1139-, § 11. , That statute only applies to companies and associations formed for the purpose of carrying on any trade or business, or for the purpose of holding any species of property, in Ohio. Actions by and against all other companies and associations, not incorporated, must be maintained, as at common law, by disclosing the names of the several partners composing such firm. Haskins v. Alcott c& Horton, 13 Ohio St. 210.
    II. Where a statute, upon certain conditions, confers a right or gives a remedy, unknown to the common law, the party asserting the right or availing himself of the remedy, must bring himself, or his case, clearly within the statute. Haskins v. Alcott, 13 Ohio St. R. 216. We think the plaintiffs in error have failed rto do this. It does not appear that summons was left at the usual place of doing business of said firm within the county. On the other hand, it appears from the affidavits in attachment and the return of the constable, that Gr. O. Hoover & Co. had no place of business in the county, and the plaintiffs in error proceeded against said partnership in its firm name, as non-resident, and caused orders of attachment to issue upon the ground of such non-residence. It does not even appear • in the bills of particulars and affidavits in the action that Gr. C. Hoover & Co. were a company or association formed for the purpose of doing business in Ohio, or that they, had any place of business in Ohio. We think if the record does not show these facts giving jurisdiction, affirmatively, the district court did not err in reversing the judgments of the court of common pleas and justice of the peace. Haskins v. Alcott, 13 Ohio St. 210-215.
    III. The justice must acquire jurisdiction by virtue of the act of February 27, 1846, or he does not acquire it at all. All attachment cannot be issued against a non-resident firm. The code allows attachments against individuals who are nonresidents, but not against firms as such. Dobell v. Loker, 1 Handy, 574; Drownson v. Metcalf, 1 Handy, 188 ; Haskins v. Alcott, 13 Ohio St. 210.' But it is claimed that if a domestic corporation may be proceeded against by attachment, as non-resident of the county (Champion Machine Co. v. Huston, 24 Ohio St. 503), it follows that a domestic partnership may be proceeded against in the same manner. It certainly does not follow at all. A corporation may sue or be sued, but no action lies against its stockholders in the first instance. In a partnership the copartners may be sued in the first instance. If a partnership, like a corporation, can be proceeded against as a non-resident, then, does it not follow, that if the partners composing the firm of (I. O. Hoover & Co. should all reside in Tuscarawas county, but that the firm had its place of business in Franklin county, that an attachment may issue against the partnership property in Franklin county, in the names of the individual partners, upon the ground of the non-residence of the members of such firm in Franklin county; and at the same time, another attachment issue against the property of the firm, in the firm name, in Tuscarawas county, notwithstanding all the partners reside there, because of the partnership (the ideal person) being non-resident of Tuscarawas county ? If such a theory is correct, it must follow that the property of a partnership may be attached, by reason of non-residence, in the very county where all the partners reside, should its place of business happen to be in another county; and its property could be attached in the county in which it did business by reason of the non-residence of the partners composing the firm. This state of facts cannot occur in the ease of a corporation, as no suit in attachment can be maintained by reason of the non-residence of the stockholders. The legislature, in passing the act of February 27,1846, certainly did not intend to license any such wholesale attachment of partnership property.
    IV. Ve have examined the authorities cited by counsel for plaintiffs in error, but are unable to discover their application to the questions r.aised in these cases. There is no appearance as to the merits of plaintiff’s claim in these actions.
   MoIlvaine, J.

At common law a partnership could sue and be sued only in the name of the members of the firm.

By the act of February 27, 1816 (11 Ohio L. 66), however, it was provided that unincorporated companies formed for the purpose of carrying- on any trade or business, or for the purpose of holding any species of property within the state of Ohio, might sue or be sued in any of the courts of this state by the usual or ordinary name of the company, without setting forth in the process or pleadings the names of the members of such company. Undoubtedly, the original action was intended to be prosecuted under favor of this statute, and the only question before us is, Did the justice of the peace acquire jurisdiction of the defendant company ? The second section of the act provides “ That process against any such company or firm, under the provisions of this act, shall be served by a copy left at their usual place of doing business within the county.” It is conceded that jurisdiction was not so obtained : but it is claimed that personal, jurisdiction was acquired by constructive service under section 35 of the Justices’ act of March 11, 1853 (S. & C. 777), which provides for service by publication when property of the defendant has been taken under an order of attachment, and it shall appear that the summons issued in the action has not been and cannot be served on the defendant in the county in the manner prescribed by law.

A majority of the court are of opinion that this mode of service by publication does not apply in cases which can be prosecuted only under favor of the act of 1816, which specifically prescribes the mode of acquiring jurisdiction of the defendant company, namely, by service of process at the usual place of doing business within the county, to wit: the county in which the process was issued. The statute is special and independent. It gives a new remedy, and prescribes the mode and manner of enforcing it. Being complete in itself, we think the mode prescribed for acquiring jurisdiction of the defendant, in invitum, is exclusive. This conclusion, it appears to me, is inevitable from the clear intention of the legislature that actions against companies in the firm name should be prosecuted only in the county in which its usual place of business may be situated, without regard to the residence of the members of the firm. The claim, however, of plaintiffs in error makes the non-residence of the members a test of jurisdiction in any county where property of the company may be seized in attachment, without regard to the usual place of business of the company. We think the act of 1846 is inconsistent with such claim.

Again, it is claimed by plaintiffs in error that defendants in error voluntarily appeared in the action before the justice by filing their motions to dismiss the action, &c. (See statement of case.)

It is not claimed that a voluntary appearance was intended by the defendants; but the claim is, that the filing of said motions was, in law, an appearance to the merits of the cause, and, consequently, a waiver of any objections to the mode or manner by which jurisdiction over the person of defendants was acquired.

The appearance of a defendant in court for the sole purpose of objecting, by motion, to the mode or manner in which it is claimed that jurisdiction over his person has been acquir* ed, is not an appearance in the cause, or a waiver of any defect in the manner of acquiring such jurisdiction; while, on the other hand, the appearance for the purpose of contesting the merits of the cause, whether by motion or formal pleading, is a waiver of all objections to the jurisdiction of the court over the person of defendant, whether the defendant intended such waiver or not.

In respect to this question, an important distinction is made between an objection to the jurisdiction of the subject-matter of the suit, and of the person of defendant, although complete jurisdiction in the court to hear and determine the action is not acquired unless the court lias jurisdiction over both the subject-matter and the person. An objection to jurisdiction over the subject-matter is a waiver of objection to the jurisdiction of the person, while an objection to the jurisdiction of the person is a waiver of nothing.

The motions of defendants, which are relied on as an appearance in the original action, when considered in the light of the circumstances disclosed in the record, were objections to the jurisdiction of the court over the persons of defendants, and nothing more. Hence, objections to the manner of acquiring such jurisdiction were not waived.

A question somewhat similar to the present arose in Handy v. Insurance Company, 37 Ohio St. 360, in which the filing of a motion by defendant to dismiss the action was held to be a voluntary appearance in. the action. The ground of the motion in that case, however, went to the jurisdiction of the court over the subject-matter of the action, and not to the jurisdiction of the person of defendant. While the motion in that case as well as in this was to dismiss the action, that was for want of jurisdiction over the subject of the suit, this over the person of defendants.

Judgment affirmed.

Upson and Doyle, JJ., dissent from the first and second propositions of the syllabus.  