
    Barnhart v. Aiken et al.
    (Decided March 31, 1931.)
    
      Mr. Fred Marldey, for plaintiff in error.
    
      Mr. Dow Ailcin, Messrs. Deaton <& Bodey, Mr. G. G. Hall and Messrs. Hale & McGee, for defendants in error.
   Klinger, J.

The plaintiff, Clarence E. Barnhart, was the owner in fee simple of land located in Santa Fe, Logan county, Ohio. He was indebted to the Peoples Savings & Loan Company of Urbana, Ohio, and to John P. Aiken on certain mortgages held respectively by them on said real estate; the loan company mortgage being first and the Aiken mortgage being second.

In September, 1922, John P. Aiken filed his petition in foreclosure making the Peoples Savings & Loan Company and others parties to the proceeding. The loan company filed an answer and cross - petition setting np its mortgage. Summons was issued on the petition of Aiken to the sheriff of Allen county, Ohio, and return was made that said summons was served on Clarence E. Barnhart at his usual place of residence in Lima, Ohio. Summons was issued on the answer and cross-petition to the sheriff of Logan county, Ohio, and return was made by the sheriff saying that he failed to find the defendant Clarence E. Barnhart in his bailiwick.

Without further service of process, and standing on this service, the cause proceeded to trial. The defendant Clarence E. Barnhart being in default for answer or demurrer, a decree of foreclosure was had and the real estate of the defendant was sold on this foreclosure.

On the 8th day of October, 1929, Clarence E. Barn-hart, plaintiff herein, filed a petition in the court of common pleas of Logan county, Ohio, making all parties in said former action parties defendant, and objecting and protesting to the jurisdiction of the court in said former action on its docket, and setting up the fact that Clarence E. Barnhart at the time of the service of summons in said former action, and for twenty years prior thereto, maintained a residence in Santa Fe, Ohio; and saying further that he was not a resident of Allen county at the time stated in the return of the sheriff of Allen county, Ohio, and, further, that he was never in any manner served with summons and had no knowledge or notice of the pendency of said foreclosure proceeding.

The defendants in this action demurred to this petition, and the demurrer was sustained, leave being granted the plaintiff herein to file an amended petition, which was accordingly done.

The canse then proceeded on the pleadings and evidence, and judgment was rendered holding that plaintiff was guilty of laches, and had not sustained the allegations of his amended petition by the requisite degree of proof, and for these reasons the court refused to set aside said service of summons.

Barnhart, the plaintiff in this proceeding, premised his suit on the ground that he was not in fact served with summons in the foreclosure suit, notwithstanding the return of the sheriff of Allen county that he had made service by leaving a copy of the summons at Barnhart’s usual place of residence in Lima, Ohio, and he seeks in this proceeding to invalidate the former suit. Plaintiff fails to offer any defense that he might have against the claim set up in the foreclosure proceeding, admitting, for the sake of the argument, that a court of equity should and would give relief if the petition offered any grounds upon which the relief could be premised.

Neither in pleading nor proof is any statement of fact offered or suggested that, had the service of summons been regular, and the plaintiff in this proceeding been notified, he had and would have interposed a defense of any kind or character, or that the finding and decree would have been any different from what it was.

A court of equity will not interfere with the enforcement of a judgment rendered at law unless it is unjust and unconscionable, and therefore relief will not be given unless complainant shows that he had a good and meritorious defense to the original action.

Judge Swan, in delivering the opinion in the case of Oliver and Baum v. Pray, 4 Ohio, 175, on page 193, 19 Am. Dec., 595, said:

“But it is not enough that the court has jurisdiction of the subject matter. We must be satisfied that the complainants have some merits: some grounds of defense to the action, at law, before the judgment will be set aside. It is not enough that the party has lost the naked right of a second jury trial in the Supreme Court. A judgment never ought to be opened to gratify a spirit of litigation.”

Again, in 34 Corpus Juris, at pages 442 and 443, it is said: “A court of equity will not interfere with the enforcement of a judgment recovered at law, unless it is unjust and unconscionable; * * * The weight of authority, however, is to the effect that a showing that defendant has, or at the time of the judgment had, a meritorious defense, is none the less necessary because the judgment may have been obtained without service of the summons or appearance of defendant.”

Judge Day, in Allen v. Everly, 24 Ohio St., 97, 111, lays down the law that relief cannot be granted until “the party affirmatively establishes facts which entitle him thereto,” and that, unless that be done, “equity leaves the parties where it found them.”

Again, to set aside the sheriff’s return, the evidence must be clear and convincing. The presumption is that the officer’s return is correct, and the proof of its falsity must be clear and convincing.

The evidence before the trial court shows that Barnhart was working in Lima; was stopping at the home of a friend, Mrs. Pence; that he has resided continuously in Lima or Santa Fe, making frequent trips from the one place to the other, irrespective of the place which he considered his legal residence. The trial court, taking into consideration the returns of the two sheriffs, that of the sheriff of Allen county that, he had served him at his usual place of residence and that of the sheriff of Logan county that he could not be found within his bailiwick, and taking into consideration the facts that for more than seven years others occupied the property that-had theretofore been his home, shop and storeroom, exercising all the prerogatives of ownership, and that Barnhart paid no taxes or interest thereon, found that he had not sustained the issue on his part to the degree required by law.

Another ground for approving and confirming the decree of the court below is that justice and equity would require a similar finding as that now sought to be set aside, and equity is not concerned about a judgment which, though irregular, is in fact equitable. Gifford v. Morrison, 37 Ohio St., 502, 41 Am. Rep., 537.

We find no error, and the decree and judgment of the court of common pleas is affirmed, at costs of plaintiff in error.

Judgment affirmed.

Justice and Crow, JJ., concur.  