
    Compton, Jr., Appellant, v. Compton, Appellee.
    (Decided November 21, 1938.)
    
      Mr. B. F. Hughes, for appellant.
    
      Mr. O. H. Mosier, for appellee.
   Hornbeck, J.

On January 21, 1938, plaintiff instituted Ms action against defendant for damages for false arrest and filed his petition in the Common Pleas Court of Franklin county, Ohio.

Summons was issued to the sheriff of that county and return, made showing personal service on the defendant on that date. Thereafter, on February 15, 1938, the defendant appearing Tor the purpose of the motion only, moved the court to quash the service of summons upon him for the following reasons:

(1) That the defendant, at the time of service of summons, resided with his wife and family in Licking county, Ohio.

(2) On the day that service was obtained upon Mm in this action, to wit, January 21, 1938, he was attending, as a party plaintiff, the trial of the ease of Frank Compton, plaintiff, v. William Compton, Jr., et ah, defendants, in the Common Pleas Court of Franklin county, Ohio; that while the cause was being heard and during a noon recess the defendant, as he stepped from the court room into the hallway adjacent thereto, was handed a summons by the Sheriff of Franklin county; that on said date defendant had come into Franklin county for the sole and only purpose of attending the trial of said ease.

This motion was sustained and thereafter on February 18,1938, plaintiff filed his precipe with the clerk of the court of Franklin county for issuance of alias summons on the defendant. Thereupon, on February 23, 1938, the sheriff returned this summons, showing service of a true and certified copy of the writ with all endorsements thereon upon the defendant at his last known address by registered mail, which address was, as set forth in the precipe, Pataskala in Licking county, Ohio, E. F. D., No. 1. A return registered mail receipt signed by the defendant was attached to and made part of the return of service of the writ. Thereafter, on March 9, 1938, the defendant appearing for the purpose of the motion only, moved the court to quash the service of summons by registered mail for the reasons:

(1) That the defendant at the time of service of the summons on him resided with his wife and family in Licking county, Ohio, where said summons was delivered to him.

(2) The action is one for money, brought against this defendant individually and is not an action upon which service of summons can be made upon a defendant residing in a county other than the one in which the action is instituted.

The court sustained this motion.

Plaintiff filed a motion for rehearing directed to the action of the court on the last motion of defendant, which application was overruled. Exceptions were noted and an appeal on questions of law was prosecuted.

There is but one question presented for decision, namely: Under the facts appearing was service by mail as provided by Section 11297-1, General Code, properly made upon the defendant?

So much of the section as is pertinent provides:

“In addition to the methods of service and return of writs as provided by law, the judge or judges of the Court of Common Pleas * * * in each of the counties of the state * * * may, by rule, provide for the service of writs or process by mail registered or otherwise * * (Italics ours.)

Pursuant to this authorization the judges of the Court of Common Pleas of Franklin county promulgated a rule of court providing for service by mail. It will be observed by that portion of the section italicized that its purpose and extent relate only to methods of service and not to the venue of an action or the right to serve a defendant and thereby bring him within the jurisdiction of the court. Thus, if the action instituted by the plaintiff against the defendant would support personal service upon the defendant in Licking county, his residence, or service by publication upon him there, then the additional method of service provided in Section 11297-1, General Code, could properly be employed to subject him to the jurisdiction of the Common Pleas Court of Franklin county. If neither' of such forms of service was authorized, then no authority was granted by Section 11297-1, General Code, to serve the defendant by mail.

An action for damages for false arrest falls under the venue provision of Section 11277, General Code, which provides, “every other action must be brought in the county in which a defendant resides or may be summoned * *

The defendant at the time the alias summons issued did not reside in Franklin county nor could he be personally summoned there. He could not be served by publication under Section -11292, General Code, because lie was not a nonresident of the state. Section 11297-1, General Code, afforded the plaintiff no authority for service upon the defendant in the manner therein provided.

We are cited to Apex Coal Co. v. Winings, 6 Ohio Law Abs., 398, supporting the right of plaintiff to the form of service adopted. An examination of this case discloses that the action was instituted in some court in Harrison county, probably a Common Pleas Court, the name of which does not appear, by Winings against Apex Coal Company and that the coal company was a corporation having its offices in the city of Cleveland. Service was attempted by mail and thereafter default judgment taken against the defendant. Motion to vacate the judgment for want of jurisdiction was interposed, which the trial court overruled, holding that the service was proper. This action was affirmed by the Court of Appeals. This opinion appears to be some authority for the claim of the plaintiff. The facts, however, are incompletely set forth and for that reason we cannot say that the judgment is in direct conflict with our conclusion. However, if it is, we refuse to follow it and will, if desired, make certificate of conflict to the Supreme Court.

The other case cited is Struble v. Meredith, 51 Ohio App., 201, 200 N. E., 194. This action was in partition and service was made by registered mail upon one of the parties who was a nonresident of the state of Ohio. The question was whether such service was effective. The court held that it was. The action in partition was properly brought in Morrow county where the real estate was situated, by virtue of Section 11268, General Code. Service by publication upon the party was authorized by paragraph 2 of Section 11292, General Code. This was a method duly set up by the statute for valid service upon the party. In this situation Section 11297-1, General Code, provides an additional method of service.

The order of the Common Pleas Court will be affirmed.

Order affirmed.

Barnes, P. J., and Geiger, J., concur.

(Decided December 31, 1938.)

On Application for rehearing.

By the Court.

The brief of appellant submitted in conjunction with the application is intended to disclose that the decision in the case of Apex Coal Co. v. Winings, supra, is in conflict with our opinion in the instant cause and should be followed.

Counsel has favored the court not only with the entry in the Apex Coal Company case but also with the briefs of counsel for both parties. By reason of this additional information we have enough facts to clear up the uncertainty which we expressed in our former decision by reason of consideration only of the reported opinion as found in the Ohio Law Abstract. The informative facts appear in the brief of defendant in error which discloses that the action was for money claimed to be due on account from the defendant, Apex Coal Company, a foreign corporation which owned property in Harrison county, the county in which the cause of action arose. Thus the action was properly instituted in Harrison county by virtue of Section 11276, General Code, which provides that:

“An action * * * against # * * a foreign corporation, may be brought in any county in which there is property of # * * the defendant * * * or where the cause of action * * * arose.”

The action having been properly lodged in Harrison county, summons could be issued to Cuyahoga county under authority of Section 11282, General Code, which provides that:

“When the action is rightly brought in any county, according to the provisions pf the next preceding chapter [which chapter includes Section 11276, General Code], a summons may be issued to any other county, against one or more of the defendants, at the plaintiff’s request.”

The court was then,clearly correct in holding that the judgment predicated upon service by registered mail (Section 11297-1, General Code) should not be set aside.

The holding in the Apex Coal Company case amplifies what we said in our original opinion in this case.

In the instant case the action was not properly brought in Franklin county because the defendant did not reside there nor could he be personally summoned there, one of those conditions being requisite to support the venue under Section Í1277, General Code. As we stated in our former opinion, Section 11297-1, General Code, grants no substantive right to serve a defendant, but merely provides an additional method of service when the right exists.

The application for rehearing will be denied.

Rehearing denied.

Barnes, P. J., Hornbeck and Geiger, JJ., concur.  