
    No. 778
    TAXIS v. SO. OHIO SAV. AND TRUST CO.
    Common Pleas, Montgomery County
    No. 51124.
    Decided Aug. 30, 1923
    8. ACTIONS.
    Validity of service on administrator in action for tort committed by decedent in another county.
    29. APPEARANCE.
    Motion questioning merits-of case, and not jurisdiction, is voluntary appearance.
   McCRAY, J.

Epitomized Opinion

Action for property damage against the administrator of the estate of William Brown whose son was the alleged cause of the accident. Taxis resided in Montgomery county, where the -accident occurred. At the time of the accident Brown and his son lived in Hamilton county. Brown died before the action was commenced. Taxis filed suit in Montgomery county and had summons issued on the bank as administrator in Hamilton county. The bank filed a motion in which it claimed that Brown was not operating the automobile. This was supported by the son’s affidavit that he was driving the car on his own behalf. Jury rendered a verdict in favor of Taxis for $250. Motions in arrest of judgment and for a new trial .were filed by the bank on the ground that the court had no jurisdiction. In rendering judgment on the verdict, the Common Pleas Court held:

1. Upon Brown’s death the righ of action survived against liis estate. 11235 GC. By 6290 and 6308 the action may be brought against the owner in the county where the injured person resides and owner is defined as one having title or the exclusive right to use a motor vehicle. These statutes must be liberally construed. 100 OS. 73, 78. An administrator may be sued where he is appointed or resides. 11277 GC. Therefore summons on the administrator gave the court jurisdiction.

2. The administrator by its motion, denying that Brown was the operator of the vehicle or responsible therefore, seems to question the merits of the case and not the jurisdiction over the person. This is therefore voluntary appearance. 43 OS. 171, 177.  