
    Gorey v. Black.
    
      Summons — Nonresident defendants — Negligent automobile owner — Section 6308, General Code — Service on joint tort-feasor — Section 11282, General Code —Effect of appearance and answer by automobile owner — Section 11287, General Code— Facts necessary to jurisdiction and service.
    
    1. In an action for injuries caused by the negligence of the owner of a motor Vehicle, which is brought in the county where the injured person resides, pursuant to Section 6308, General Code, summons may be issued to the sheriff of any county in the state where the defendant owner resides and may be served as in other civil actions.
    2. Where in such case the summons is served on the owner defendant and the petition avers that the injury was caused by” the joint wrongdoing of the owner of the motor vehicle and another person,-who is joined as defendant, the action is rightly brought within the.meaning of Section 11282, General Code, and summons may issue to any other county for such joint defendant.
    3. Where in such case defendant owner voluntarily appears and answers to the merits of the case without the service of summons on him, this- step is by Section 11287, General Code, made equivalent to service, and thereby the action is rightly brought and summons may issue to any other county for the joint defendant.
    4. In order to give the court jurisdiction over joint defendants who are nonresidents of the county where suit is brought and for whom summons has been issued to another county, the averments of the petition and the proof on the trial must show that the plaintiff has a valid joint-cause of action against the defendants on whom valid service is had as well as against the nonresident defendants..
    (No. 16028
    Decided June 10, 1919.)
    Error to the Court of Appeals of Licking county.
    In November, 1915, Frank Gorey brought suit in the common pleas court of Licking county against Marie C. Clark. The petition alleges that on June 28, 1914, the defendant was the owner of an automobile and operated the same and on that day the automobile was operated and driven by one James Nelson Black with her knowledge, consent and authority on a public highway in the state of Ohio and in the county of Franklin; that the plaintiff was on that day riding on a motorcycle along the highway about eight and a half o’clock in the evening at a rate of about fifteen miles an hour; that the motorcycle had a light burning on its front and was driven on the south side of the street going east; that said defendant and Black were riding in said automobile along the highway towards plaintiff; and that the automobile was driven on the south side, going west, at a speed of about forty miles an hour, and was then and there so operated by the said Black that it struck the plaintiff’s motorcycle with great force and violence throwing him about fifteen feet to the ground. The petition specifically sets out the injuries to the plaintiff, and further describes the negligent acts of the defendant; that the automobile was being run by the defendant at a high, dangerous and excessive rate of speed, so that it could not be kept within safe and proper control and the collision prevented; that said defendant and Black, before the automobile collided with the motorcycle, as aforesaid, saw, or in the exercise of reasonable care could and should have seen, plaintiff in time to have stopped said automobile and prevented and avoided the collision; that defendant and Black before the collision took place failed and neglected to give any warning of the approach of said automobile by blowing a whistle or sounding a horn or in any other manner; and that said automobile was illegally driven on the south side of said public highway and that it was wilfully and recklessly moved and driven by the defendant and Black upon and against the motorcycle of the plaintiff. Summons was issued for the defendant to the sheriff of Franklin county, and the sheriff made return in due time that he was unable to find the defendant within his bailiwick. Nothing further was done until January 24, 1917, when the defendant filed her answer alleging that since the commencement of this action she had married Allen Short, a lieutenant in the (Canadian army, and a subject of the British crown; and "‘further answering the said defendant denies each and every allegation of the plaintiff’s petition” and prays to be dismissed with costs. Subsequently the plaintiff was granted leave to file an amendment to the petition and make James Nelson Black a party defendant.
    On April 5, 1917, the amendment to the petition was filed, in which the allegations of the petition were averred as against Black.
    Thereupon Black filed a motion disclaiming any intention of entering his appearance and moved the court to quash the service of summons for the reason that the court had no jurisdiction over his person. This motion was sustained and service of summons on Black was set aside. íhis action was affirmed by the court of appeals, judgment given against the plaintiff in error, and this proceeding is brought to reverse the judgment of the courts below.
    
      Messrs. Kibler & Kibler; Messrs. Skiles & Skiles and Messrs. Pugh & Pugh, for plaintiff in error.
    
      Messrs. Fitzgibbon, Montgomery & Black and Mr. Samuel L. Black, for defendant in error.
   Johnson, J.

The question presented concerns the action of the court in sustaining the motion of the defendant Black to quash the service of summons on him. It is conceded the allegations of the petition, that the defendant Clark owned the automobile and that the injury occurred in Franklin county, were made in order to bring* the case within the provisions of Section 6308, General Code, and thereby permit the fixing of the venue in Licking county and the issuance of the summons to the sheriff of Franklin county.

The section reads as follows: “Actions for injury to a person or property, caused by the negligence of the owner of a motor vehicle, may be brought, by the person injured, against such owner in the county wherein such injured person resides. A summons in such action against any defendant or defendants shall be issued to the sheriff of any county within this state wherein such defendant or defendants reside and may be served as in other civil actions, notwithstanding any contrary provision of law for the service of summons in civil actions.”

It is contended that the defendants, Clark and Black, cannot be held in this action as joint tortfeasors, because, it is asserted, the liability of Clark is based on the ownership of the automobile, and the provisions of Section 6308 create a special liability in which no one else can be associated; that, therefore, the summons for Black is without authority of law.

But attention to the provisions of Section 6308 discloses that it does not create or attempt to create any liability whatever. It relates solely to the venue. It provides that actions for injury to a person or property caused by the negligence of the owner of a motor vehicle may be brought by the person injured against such owner in the county wherein such injured person resides. The negligence of the owner, the action for the injury, and the rights of the person injured all remain to be determined exactly as before the section was passed. If there would have been no right of action before, there is none now. It must be noted that the petition in this case states a joint cause of action against Clark and Black, the defendants. The allegations of negligence are directed against each of the defendants. The petition does not state a case of master and servant, and the plaintiff’s right of recovery does not depend on the doctrine respondeat superior. His claim rests on the ground of the joint and mutual negligence of both of the defendants in the wrongful operation of the automobile. But even if the relation of master and servant was averred that would not prevent the joinder under the averments of this petition. Where the master participates in the negligent act there is no room for question as to his joint liability with the servant to the injured person. (5 Thompson on Negligence [2 ed.], Section 5776.) By the provisions of Section 6308, General Code, the summons was .rightly issued to the sheriff of Franklin county for the defendant Clark, the owner.

Chapter 3, Division II, Title IV, Part Third, of the Code, relating to civil actions., specifically provides for the venue in certain enumerated cases, and Section 11277 of that chapter then provides “every other action must be brought in the county in which a defendant resides or may be summoned.” Section 11282 in Chapter 4 provides that when the action is rightly brought in any county, according to the provisions of the next preceding chapter, a summons majr be issued to any other county, against one or more of the defendants, at the plaintiff’s request. As shown, the summons was rightly issued to Franklin county for the defendant Clark, and if it had been there served on her the action would have been rightly brought in Licking county, and summons could have been properly issued for the defendant Black to any other county, under the provisions, of Section 11282.

Section 6308 is simply an additional provision as to venue. Until it was passed it would have been necessary to have brought the suit “in the county in which a defendant resides or may be summoned.” As shown, Section 6308 relates merely to the venue and must be considered in pari materia with the other sections of the Code relating to that subject. It is a part of the statutory provisions as to venue, and a modification of the provisions theretofore in existence. The reasons for its enactment are manifest, and being a remedial statute it should be liberally construed to accomplish its laudable purpose. It gives the right to the plaintiff to bring the suit where he resides and to issue to another county for the owner of the automobile. When this is done the suit is rightly brought and all steps can then be taken which the Code permits with reference to áctions rightly brought.

The last sentence of the section discloses the purpose of the legislation to which we have referred. It reads: “A summons in such,action against any defendant or defendants shall be issued to the sheriff of any county within this state wherein such defendant or defendants reside and may be served as in o.ther civil actions, notwithstanding any contrary provisions of law for the service of summons in civil actions.” This preserves and effectuates the general policy of the law to prevent multiplicity of suits, as well as the right of a plaintiff to bring all joint tort-feasors into a single action.

But as we view this case it is controlled and disposed of by other considerations. As shown in the statement, the defendant Clark voluntarily came into court without summons having been served upon her, and filed her answer, in-which she pleaded to the merits of the case. This voluntary appearance of the defendant Clark was equivalent to service. It entered her appearance to the case for all purposes, exactly as if summons had been served on her in Licking county. Section 11287, General Code, provides that an acknowledgment on the back of the summons or petition by the party sued, or the voluntary appearance of a defendant, is equivalent to service.

It is, therefore, obvious that after this voluntary step, equivalent to service of summons upon her in Licking county, the action was one rightly brought, and, therefore, by the provisions of Section 11282, General Code, the summons was thereafter rightly issued to the sheriff of Franklin county for the joint tort-feasor defendant Black. So that so far as this case is concerned it is precisely as if the plaintiff had in the first instance filed his petition and issued summons in Licking county, procured service on the defendant Clark in Licking county, and, after-wards, in pursuance of the provisions of the statute, caused a summons to issue to Franklin county for the defendant Black; all as if Section 6308, General Code, had not been passed.

The defendant Black is entitled to make every defense which he would have been entitled to make in that case. He is entitled to show that he was not a joint tort-feasor with the defendant Clark. And if in the case in Licking county he can on the other hand demonstrate that the defendant Clark had no part in the committing of the wrong, that would oust the jurisdiction against him, even'if the proof showed that he had wrongfully injured the plaintiff, because the essential basis of the right to proceed against Black in Licking county is that a joint tort-feasor had been joined in that case and properly served there. A plaintiff cannot compel persons residing out of the county where suit is brought to defend there by simply joining them with another person or persons against whom there is no joint right of action.-'In order to give the' court' jurisdiction over defendants nonresident of the county where the suit is brought, and for whom summons has been issued to another county, those against whom service is had in the former county must have a real and substantial interest in the proceeding. adverse to the plaintiff and against whom substantial relief is sought. The law does not. permit the important matter of jurisdiction to be determined by joining-colorable or dummy defendants in the case. And this observation applies with equal force where a nonresident owner of an automobile has been brought into court under the provisions of Section 6308, General Code. Before the driver of a machine who was not the owner could be rightly served under the provisions of Section 6308, General Code, it would be necessary that it be shown in the action that the owner of the machine was a joint tort-feasor with the driver and had been served under the provisions of that section. (Dunn v. Hazlett, 4 Ohio St., 435; Allen v. Miller, 11 Ohio St., 374, and Drea v. Carrington et al., 32 Ohio St., 595). In the case last named it is held:

• “An action to recover damages under an act requiring compensation for causing death by wrongful act, neglect, or default (2 S. & C. 1139), may be brought in any county in- the state where the defendant, or any one of the defendants, resides or may be served.
“In such case, where there are several -defendants, against all of whom good-cause of action is alleged, some of whom are served in the county and others reside and are served in another county than that where the suit is brought, the validity of the service of summons in such other county, and the jurisdiction of the court over the persons of the non-resident defendants, depends upon the truth of the allegations of the"petition.”

As we have seen in this case the allegations of the petition clearly state a joint cause of action against the two defendants and for the purposes of this proceeding must be taken to be true.

It is also contended that the order of the common pleas court was not a final order, and that, therefore, the plaintiff in error is not entitled to maintain this proceeding in error. In the entry of the court of common pleas concerning the motion of the defendant Black to quash the service for summons on him is the following: “The court being fully advised in the premises sustains said motion and said service of summons in this case upon said Nelson Black is hereby set aside.”

The court of appeals affirmed the common pleas court and entered judgment against plaintiff in error.

Section 12258, General Code, provides that “An order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment, * * * is a final order which may be vacated, modified, or reversed as provided in this title.”

As to a similar question it is said by Spear, C. J., in Allen v. Smith, 84 Ohio St., 283, 288: “The ultimate question presented by the record relates to the jurisdiction of the court of common pleas of Fayette county over the person of the defendant Smith. This question is raised by the motion of defendant to quash the summons and service thereof, which, if properly sustained, determined effectually the question of jurisdiction and ended the case.”

For the reasons given the judgments of the courts below will be reversed and this cause remanded to the court of common pleas with instructions to overrule the motion of the defendant Black to quash the service of summons, and for such other proceedings as are provided by law.

Judgments reversed.

Nichols, C. J., Matthias, Wanamaker and Robinson, JJ., concur.

Jones and Donahue, JJ., dissent.

Donahue, J.,

dissenting. It is not within the province of a court to extend the provisions of á special act to persons or things not clearly and expressly comprehended within the language of the special act creating an exception to the general law on the same subject-matter.

The record shows that the defendant Black is a resident of Franklin county'; that a summons issued out of the common pleas court of Licking county directed to the sheriff of Franklin county; and that service of this summons was made upon Black in Franklin county.

Black not being the owner of the automobile that caused the injury to plaintiff, Section 6308, General Code, has no application to him and does not authorize service of summons upon him in any county other than the county in which the action was brought. Therefore, unless Section 11282, General Code, has application to an action- brought under the provisions of Section 6308, General Code, this service upon the defendant Black, in Franklin county, was and is illegal and void.

Section 11282, General Code, provides that “When the action is rightly brought in any county, according to the provisions of the next preceding chapter, a summons may be issued to any other county, against one or more of the defendants.” This section is found in Chapter 4, Division II, Title IV, Part Third of the General Code, relating to the commencement of actions. The next preceding chapter, Chapter 3, contains Sections 11268 to 11278, inclusive, General Code.

This action is not brought under the provisions of any section of Chapter 3, but is brought under favor of Section 6308, General Code, which is a special act relating to actions for injury to person or property caused by the negligence of the owner of a motor vehicle. This section of the code is not only not a part of Chapter 3 (which is the next preceding chapter referred to in Section 11282, General Code), but on the contrary clearly states in terms that its provisions are an exception to the general provisions of that chapter. It is therefore clear that Section 11282, General Code, has no application whatever to actions brought under the provisions of Section 6308, General Code, for Section 11282 in plain and positive language confines, its application to actions rightly brought “according to the provisions of the next preceding chapter” (Chapter 3).

If, however, it were conceded that Section 11282, General Code, has application to an action brought under the special provisions of Section 6308, General Code, nevertheless no summons was ever served upon Marie C. Clark, the owner of this motor vehicle that caused the injury to the plaintiff in error, either in Franklin county, or any other county in the state.

A summons was issued for Marie C. Clark, the owner of the automobile, to the sheriff of Franklin county, but was never served upon her, for the reasons stated in the return of the sheriff, “after due and diligent search I was unable to find the within named defendant, Marie C. Clark, within my bailiwick.”

Later, however, Marie C. Clark entered her voluntary appearance by filing an answer in the case. This answer discloses the fact that she is married to Allen Short, a lieutenant in the Canadian army, and a subject of the British crown. Her husband being a resident of Canada, the presumption obtains that her residence is the residence of her husband. If this be true, it does not appear how Marie C. Clark, the owner of this motor vehicle, could be served with summons in any county in the state of Ohio. It is certain at least that no such summons was served.

Where, under favor of Section 11282, General Code, a plaintiff seeks to procure service upon a defendant in any county other than the county in which the action is commenced, he must bring himself within the provisions of that section by showing that the action is rightly brought in that county.

This record, if it shows anything at all touching that question, shows that the legal residence of Marie C. Clark is Canada; that she never was served with summons in this action; and that, more than a year after an unsuccessful effort to serve a summons upon her, she voluntarily filed an answer to plaintiff’s petition.

This waiver on her part cannot affect the rights of the defendant Black, nor does it follow that because she entered her voluntary appearance, that the action was properly brought in Licking county. The venue of an action is not fixed by arrangement, agreement, or waiver of some of the parties thereto. It is fixed by the statutes of Ohio. And while one defendant may by entering his voluntary appearance estop himself from denying the jurisdiction of the court in which the petition is filed, he cannot by any act of his deprive a codefendant of the protection of the laws of this, state declaring where action shall be commenced.

Under the provisions of Section 6308, General Code, an action for injury to person or property caused by the negligence of an owner of a motor vehicle may be brought against such owner in the county in which the injured person resides; yet this statute further provides that summons in such action must issue to the sheriff of the county in which the owner does reside.

In this case this was not done. Summons was issued to the sheriff of Franklin county upon the presumption no doubt that the owner of the motor vehicle causing the injury to plaintiff resided in that county; but the return of the sheriff of Franklin county shows that she could not be found within his jurisdiction. It also clearly appears from the record that she is not a resident of Ohio, but is a resident of Canada. As a matter of course, this statute cannot have extra-territorial effect.

It necessarily follows that if service of summons cannot be made upbn the owner in the county of his residence in this state, as provided by the statute, that waiver of summons by such owner cannot determine the venue of the action as against the rights of a co-defendant not within the provisions of Section 6308, General Code, even if Section 11282, General Code, includes an action rightly brought under favor of Section 6308, General Code.  