
    Foster v. Borne et al.
    
      •Judgment of common pleas against defendant — Served with summons in county other than 'cohere action was pending — Defendant taking appeal to circuit court-waives question of jurisdiction.
    
    Where a judgment is rendered in the court of common pleas against a defendant who was served with summons in a county other than where the action was pending, and he takes an appeal from such judgment to the circuit court, he thereby waives the question of want of jurisdiction over his person, and enters his appearance in the action.
    (Decided June 19, 1900.)
    Error to the Circuit Court of Hancock county.
    William G. Borne recovered a judgment in the court of common pleas against Burton P. Foster, April 26, 1894, and on June 26, 1894, he began his action against Burton P. Foster, Parks Foster, Mollie M. Foster, and The Hancock Light and Power Company,. a corporation located and doing business in Hancock county where the action was commenced and service of summons duly made on said company. The other three defendants were non-residents of that county, and were served with summons in the counties of their residence. The object of the action was to set aside a sale of 530 shares of stock in said company, made by said Burton P. Booster to his father, said Parks Foster, on January 31, 1894, as fraudulent as against the judgment so recovered by said William G. Borne, and to subject the said stock to the payment of said judgment, and for all proper relief. Parks Foster and Burton P. Foster filed motions to quash the service of summons upon them, and did not enter their appearance for any other purpose. The court of common pleas sustained the motions, quashed the service of summons, and dismissed the petition. The circuit court, on petition in error for that purpose, reversed the judgment and remanded the cause for further proceedings, to which they excepted. They did not take the case to this court on error, but filed their answers in the court of common pleas, but did not plead the want of jurisdiction of their persons in their answers. Upon trial in the court of common pleas judgment was rendered against Parks Foster to the effect that he pay the amount due upon the Borne judgment, and in default that execution issue therefor, to which he excepted. No judgment was rendered or order made against The Hancock Light and Power Company, Burton P. Foster or Mollie M. Foster or either of them.
    Thereupon Parks Foster alone appealed the cause as to the judgment against him to the circuit court, and upon trial in that court, upon the merits, substantially the same judgment wa,s rendered against him alone, to which he excepted, and filed a motion for a new trial, one ground of the motion being, that as he was a non-resident of the county, and served with summons in the county of his residence, the circuit court had not acquired jurisdiction of his person. The motion was overruled and exception taken.
    Thereupon he filed a petition in error in this court, seeking to reverse the judgment of the circuit court.
    
      J. A. <& E. V. Bope, for plaintiff in error.
    
      Boss & Kinder, and Kerry W. Seney, for defendant in error.
   By the Court:

No judgment having been rendered in the court of common pleas against the only party defendant who resided in the county where suit was brought and who was served Avith summons in that county, it may well be doubted whether that court had jurisdiction to render any judgment against Parks Foster, who was a resident of Lorain county, and Avas served with summons in that county. Allen v. Miller, 11 Ohio St., 374; Long v. Newhouse, 57 Ohio St., 348; Dunn v. Hazlett, 4 Ohio St., 435; Drea v. Carrington, 32 Ohio St., 595.

But passing that question without determining it, as it would not be decisive of this case, we are clear in the opinion that by his appeal to the circuit court, he waived the question of jurisdiction of his person, and entered his appearance in that court, and that court having thus acquired jurisdiction of his person, and also of the subject matter, there was no error in rendering judgment against him.

If he had filed a petition in error in the circuit court, to reverse the judgment of the court of common pleas, he would not thereby have entered his appearance in the original action, and might have obtained a ruling upon the question as to the right of the court of common pleas to render judgment against him when it failed to render a judgment against the only party that was served with summons in the county where the action was pending. A petition in error is a new action to reverse the judgment below;.but an appeal is, in the circuit court, the same action as in the court of common pleas; and a voluntary appearance in the circuit court, is in legal effect, the same as such appearance in the common pleas. He-could invoke the action of the circuit court to reverse-the erroneous judgment against him without entering bis appearance to such judgment, but he could not invoke the action of the circuit court on appeal, to aid him in preventing a judgment from being rendered against him, without thereby entering his appearance- and becoming a party to the action. He could not. invoke the action of the circuit court to aid him in defeating his opponent, and when defeated himself, turn around and claim that the circuit court had no-jurisdiction of his person. When he invoked the action of the circuit court, he thereby assented that the-court might render judgment for him or against him, as the evidence should warrant.

We regard what is said on this subject in the opinion in Mason v. Alexander, 44 Ohio St., on page-330, as sound law.

We find no error in the record.

Judgment affirmed.  