
    Carpenter v. Traver et al.
    
      Negligence — Service of summons — Sections 11277 and 11282, General Code — Automobile passenger sues jointly resident and nonresident defendants — Error to dismiss petition and quash service upon non-resident — Sham joinder of resident defendant claimed.
    
    Where, in an action for personal injuries sustained in an automobile collision, the petition pleaded a joint tort of both defendants, one a resident of the county and the other a non-resident thereof, and service of summons was regularly made on the' defendants respectively, under Sections 11277 and 11282, General Code, it is prejudicial error to quash service of summons and strike the petition from the files as to the non-resident defendant on motion and without trial upon the merits, upon the ground that a joint tort was not committed, notwithstanding the plaintiff expressed the opinion that the resident defendant, who was the driver of the car in which she was a passenger, was not to blame.
    (Decided January 18, 1926.)
    
      Error: Court of Appeals for Lucas county.
    
      Mr. B. F. James and Mr. L. P. Smith, for plaintiff in error.
    
      Mr. N. R. Harrington and Messrs. Thurstin & Reihm, for defendants in error.
   Williams, J.

The plaintiff in error filed her petition in the common pleas court of Lucas county in which she set out that she was a passenger in the rear seat of an automobile driven by the defendant Fred Smith in a southerly direction on East Broadway; that the defendant Edward A. Traver was at the same time driving an automobile westerly on a public highway known as Hupp road, which is located in Wood county, Ohio, and intersects East Broadway; that the automobiles collided at said intersection; and that the collision was caused by the negligence of both of the defendants. The pleader also sets out in the petition the specific acts of negligence which it was claimed each defendant committed. Summons was issued and served upon Fred Smith in Lucas county; the return of the sheriff on the summons showing that Edward A. Traver could not be found in the county. Thereupon an alias summons was issued to the sheriff of Wood county, and servéd upon the defendant Edward A. Traver, personally, in that county. The defendant Edward A. Traver, without entering his appearance, filed a motion to quash service as to him and to strike the petition from the files as against the defendant Fred Smith, for the reason that the defendant Edward A. Traver was a resident of Wood county; that the petition was a sham pleading as to the defendant Fred Smith, fraudulently filed for the purpose of acquiring jurisdiction over the defendant Edward A. Traver in Lucas county; that the plaintiff did not intend to assert or maintain a cause of action against the defendant Fred Smith; that plaintiff had no cause of action to assert against him; and that the defendant Fred Smith was in collusion with the plaintiff in perpetrating such fraud. The defendant Fred Smith filed a motion for an order to strike the petition from the files upon the ground that it was a mere sham and a fraud and untrue. The case came on for hearing on said motions in the court below, and, in the bill of exceptions, which purports to contain all the evidence offered on that hearing, is a stipulation agreed to by counsel, which is as follows:

“It is admitted that Edward A. Traver was a resident of Wood county at the time the accident alleged in the petition occurred, and has been a resident of that county ever since, and is now a resident of Wood county and was such at the time the summons in this action was served upon him. It is admitted that an action was brought in the court of common pleas of Lucas county on the 17th day of January, 1924, by the plaintiff, Anna Carpenter, against Edward A. Traver individually for the same cause of action set forth in the petition in the case now pending in this court, and that a motion was filed in said cause No. 94111 to quash service of that action, for the reason that the court did not have jurisdiction, the said Edward A. Traver being a resident of Wood county at the time of service of that action, and, upon hearing, that motion was sustained and the petition was dismissed; It is further admitted that on the 3d day of November, 1924, an action was brought in Wood county, No. 21318, in which the said Anna Carpenter was plaintiff and the said Edward A. Traver was defendant, and in that petition the same cause of action was asserted against the defendant Edward A. Traver which was the subject of the action in said cause 94111, referred to in the same cause of action as this. It is admitted that the defendant in that case filed a motion to require plaintiff to give additional security for costs, and upon the case coming on for hearing upon that motion the plaintiff dismissed that action without prejudice, and thereupon filed this suit in this court upon the same cause of action, but making the defendant Fred Smith a joint defendant in the case with Edward A. Traver. This petition is No. 97253, and was filed on the 7th day of January, A. D. 1925.”

Two witnesses were called, the plaintiff and the defendant Fred Smith. Neither witness was asked about the facts and circumstances surrounding the collision. Aside from eliciting the fact that he was taking a ride, and that Mrs. Carpenter, with others, was a passenger with him as they approached the point of the collision, the defendant Fred Smith testified that she had stated to him after the collision that he was innocent of all blame in connection with the accident. The plaintiff was then called and interrogated as to whether she blamed the defendant Fred Smith or not. She stated in the course of her examination that she did not blame him for the collision, and then, before she left the witness stand, she said she blamed both defendants.

Was the plaintiff precluded from proceeding further by her expression of opinion as to the person who was to be blamed for the collision?

The service of summons was made according to law so far as is disclosed by the face of the record. Under Section 11277, General Code, an action of this kind may be brought in the county in which a defendant resides or may be summoned, and, under Section 11282, General Code, where an action is rightly brought in any county, according to the provisions of chapter 3, division 2, title 4, part third, of the General Code of Ohio, of which Section 11277 is a part, summons may be issued to any other county against one or more of the defendants at plaintiff’s request: Service was made in accordance with these sections. An examination of the petition also discloses that it properly pleaded the commission of a joint tort on the part of the defendants against the plaintiff; that it stated a good cause of action for negligence against both of them jointly; and that it was regularly filed before the plaintiff caused the summonses referred to to be issued. We believe that the plaintiff could not be deprived of her day in court upon her petition under such circumstances by reason of the fact that she was shown, upon the hearing, to have expressed the opinion in court and out of court that one of the defendants was not to blame. Upon trial other witnesses may testify to facts tending to prove all of the material allegátions contained in the petition, thus proving prima facie the commission of a joint tort on the part of the defendants. The defendant Edward A. Traver, if called for cross-examination by the plaintiff, may, upon trial, testify to facts tending to prove liability on the part of Fred Smith. Plaintiff has, therefore, been deprived of an opportunity to show whether upon the impaneling of a jury and the trial of the case she may produce evidence tending to prove the commission of a tort jointly upon the part of the defendants, which will entitle her to have her case go to the jury upon the question of their joint liability. It is true, however, that upon trial the question of a misjoinder of parties may be raised again, and properly, when the plaintiff rests her case, or at the conclusion of all the evidence.

In the case of Schottenfels v. Massman, 16 Ohio App., 78, it appears that the trial court sustained a motion to strike the petition from the files. Thereupon proceedings were brought to reverse the judgment of the trial court. The Court of Appeals held that the action of the trial court was reversible error, and in that connection the following language is used in the opinion:

“The office of a motion to strike a pleading from the files only goes to the regularity of the filing, or to the form of the pleading, and its office is not to inquire into the merits of the case, either in law or in fact. This has been so well settled that it is practically fundamental.
“The petition below set up a good cause of action, properly filed, and in proper form, and it is necessary to meet the issue by pleading and trial on the merits.”

In striking the petition from the files, and quashing service of summons as to the defendant Edward A. Traver, the court below committed prejudicial error, because, in not being allowed to go to trial upon the merits, in the regular way, the plaintiff was deprived of her day in court. For the reasons stated the judgment will be reversed and the cause remanded for trial.

Judgment reversed and cause remanded.

Richards and Young, JJ., concur.  