
    Stoke v. Whittaker.
    
      Serving of summons — Sectton 6496 Revised Statutes — Action against partners, non-residents of county — Service on one partner only — Effect of judgment — - Attachment proceedings.
    
    1. To authorize a continuance of a cause, in which an attachment has been issued, for not less than forty nor more than sixty days, and service by publication under section 6496, Revised Statutes, it must appear to the justice of the peace, that the summons issued in the action has not been, and cannot be served on the defendant in the county, in the manner prescribed by law.
    2. When it appears to the justice of the peace that the summons issued in such case has not been served upon a defendant, but it does not appear that such service cannot be made on him in the county, it is not error to issue another summons for such defendant, without continuing the cause as to him. '
    3. In an action before a justice of the peace upon an account against S. and A., partners as Stone and Allen, an attachment was issued upon affidavit that S. and A. were non-residents oí the county and state;, service of summons was made on A, property of defendauts taken upon the order of attachment, and summons returned not found as to S.; the docket was silent as to whether summons could be served on S. in the county or not; trial was had and judgment rendered against A. on the return day of the summons; the next day another summons was issued and served upon S., 'and judgment was thereafter rendered against him: Held, That the cause of action against S. was not merged into the judgment rendered against A., and that it was not error to render judgment upon the account against S.
    (Decided November 28, 1899.)
    Error to the Circuit Court of Hamilton county.
    The action was commenced by H: P. Whittaker against “Kinzea Stone and Dudley Allen, partners-as Stone and Allen.” An attachment was issued with the summons upon affidavit upon the ground that the said defendants were non-residents of Hamilton county and the state of Ohio. The summons was served upon Dudley Allen personally, and as to Kinzea Stone it was returned not found. The order of attachment was' returned showing a levy upon property of defendants, which was duly appraised and taken into the custody of a constable.
    On the return day of the summons Dudley Allen, appeared, and Kinzea Stone failed to appear, and after waiting one hour, trial was had as to Dudley Allen, witnesses examined, the attachment sustained and judgment rendered against Mr. Allen for the amount claimed by plaintiff together with costs of suit. No entry was made upon the docket on the day of trial as to Kinzea Stone, further than the entry that he did not appear.
    The next day the-justice of the peace issued an alias summons for Kinzea Stone, which was on that day duly served upon him personally. The cause was thereafter tried to a jury, Mr. Stone being-present and defending upon the merits of the case. A verdict was returned against him for a reduced amount, and judgment was rendered upon the verdict and the attachment sustained. Mr. Stone appealed the case to the court of common pleas, wherein plaintiff below filed his petition, averring that Mr. Stone retained him to render certain legal services as an attorney-at-law in an action to be instituted at the City of Chicago by Mr. Stone and one Dudley Allen, and further avering that said services and certain expenses were for the benefit of Mr. Stoné, without saying that they were also for the benefit of Mr. Allen.
    To this petition Kinzea Stone filed an answer in which the first ground of defense was as follows:
    “Now comes the defendant K. Stone, and by way of first defense, says, that on the 10th day of October, 1894, before W. F. Gass, Justice of the Peace in and for Cincinnati township, plaintiff instituted a suit against Kinsea Stone and Dudley Allen as partners under the name of Stone & Allen, and on said 10th day of October, 1894, in said cause, caused to be issued an attachment against the property of said Stone & Allen, on the ground that said defendants were non-residents of the county of Hamilton and state of Ohio; that under the direction of said plaintiff said attachment was levied on a certain horse, as the property of the said defendants; that in said action summons was issued and served on the defendant Dudley Allen, but returned not found as to said K. Stone; that thereafter, on the 15th day of October, 1894, judgment was taken against the defendant Dudley Allen in the sum of $268.00 and costs, and said action was not continued as to said K. Stone; that thereafter, October 16, 1894, in said action, an alias summons was issued against the defendant K. Stone, and served on said defendant K. Stone, and thereafter, on October 31st, 1894, a jury having been demanded by said K. Stone, trial was had and verdict and judgment given against said K. Stone, from which judgment an appeal was duly taken by this defendant K. Stone, and is now in this court, under the title and number as set forth in the caption of this case, and is the action herein. That the cause of action wherein said judgment was obtained against said Dudley Allen is the same cause of action set forth in the petition herein, and in said action said K. Stone and Dudley Allen were sued as partners under the name of Stone & Allen, and sought to be made liable as such, as appears on the transcript of the proceeding of said justice filed herein by this defendant; and the property attached in said action was the property of this defendant. That said judgment against said Dudley Allen is still in full force and effect.”
    The plaintiff below demurred to this ground of the answer, for the reason that it does not set forth sufficient facts to constitute a defense.
    The court of common pleas overruled the demurrer, and the plaintiff not desiring to reply, the court rendered judgment against the plaintiff below and in favor of Mr. Stone.
    Upon petition in error the circuit court reversed this judgment, and thereupon Mr. Stone filed his petition in error in this court, seeking to reverse the judgment of the circuit court, and asking an affirmance of the court of common pleas.
    
      Charles J. Hunt, for plaintiff in error.
    
      W. J. Davidson, for defendant in error.
   Burket, J.

It is claimed by plaintiff in error that the canse of action against Mr. Stone was merged into the judgment rendered against Mr. Allen, and that therefore the judgment of the court of common pleas was right and should have been affirmed. An order of attachment having been properly issued against the defendants, and property having been taken under ■ such order, and it appearing by the return of the constable that Mr. Stone was not found in the county, it is claimed by plaintiff in error, that under section 6496, Revised Statutes, the cause had to be continued for not less than forty, nor more than sixty days, and. the plaintiff below having proceeded to trial on the return day of the summons against Mr. Allen alone, and having obtained judgment against him, the action as against Mr. Stone was thereby terminated, and the cause of action merged into the judgment against Mr, Allen.

Said section 6496 is as follows: “If the order of attachment is made to accompany the summons, a copy thereof and the summons shall be served upon the defendant in the usual manner for the service of a summons, if the same can be done within the county; and when any property of the defendant has been taken under the order of attachment, and it shall appear that the summons issued in the action has not been, and cannot be served on the defendant in the county, in the manner prescribed. by law, the justice of the peace shall continue the cause for a period not less than forty, nor more than sixty days; whereupon the plaintiff shall proceed for three consecutive weeks to publish in some newspaper printed in the county, or if none are printed therein, then in some newspaper of general circulation in said county, a notice, stating the names of the parties, the time when, by what justice of the peace, and for what sum said order was issued, and shall make proof of such publication to the justice; and, thereupon, said action shall be proceeded with, the same as if said summons had been duly served.”

It will be noticed that in order to make it necessary to continue the action, two things must appear: one that the summons has not been served, and the other that it cannot be served upon the defendant in the county in the manner prescribed by law.

If it appears to the justice of the peace that the summons has not been served upon the defendant, but the further fact that it cannot be served upon him in the county according to law is not made to appear to him, he should not continue the case as to such defendant, but issue another summons for him. A cause before a justice of the peace is not deemed commenced until service of summons, and then the commencement dates from the delivery of the summons to the constable. In case property is taken upon an attachment, and it appears that the service of summons has not been, and cannot be, made- upon the defendant in the county, service may be had by publication, and in such cases the action is deemed commenced upon the delivery of the summons and order of attachment to the constable, provided that the proper publication is thereafter made.

In the case at bar the docket entry of the justice of the peace shows that the first summons was not served upon Mr. Stone, but it is silent as to whether a summons could be served upon him in the county in the manner prescribed by law. Without such finding, either expressly or by necessary implication, there was no authority to continue the case for service by publication.

There is nothing in the record to show why the justice of the peace failed to find that service could not be made upon Mr. Stone in the county as prescribed by law, but the presumption is that he had good and sufficient reasons for his silence as to that question. As the record stood upon the return day of the first summons, service had been made upon Mr. Allen and a return of not found as to Mr. Stone, with an affidavit that both defendants were nonresidents of the county and state. Upon this state of the record the cause of action against the defendant not served, was not merged into the judgment rendered against the one who was served. Yoho v. McGovern, 42 Ohio St., 11. If the rendition of the judgment against Mr. Allen on the return day of the summons when Mr. Stone stood upon the docket as a non-resident of the county and state, did not cause a merger — and it did not — there was no merger by reason of the subsequent proceedings in which the purpose was to obtain a personal judgment in addition to the attachment. The non-residence and being beyond the jurisdiction of the court when the judgment was rendered against Mr. Allen, prevented a merger, and this was so whether Mr. Stone had property in the county or not.

By virtue of the alias summons which was issued and served upon Mr. Stone the next day, he became a party to the action, and liable tó respond to the complaint set out in the bill of particulars the same as if a new action had been commenced against him upon his coming into the county, as was done in Yoho v. McGovern, supra, and the previous judgment against Mr. Allen could not have the effect to terminate the action against Mr. Stone.

The fact that an attachment was issued and property taken thereunder could not deprive the plaintiff from prosecuting his action and obtaining a personal judgment in addition to the relief sought by the attachment. Upon Mr. Stone coming into the county, summons could be served upon him, and there was then no occasion for making service by publication. Having thus obtained personal service upon Mr. Stone, the plaintiff below was entitled to a personal judgment against him, and not merely a judgment to sell the attached property, as would have been the case if there had been servic by publication only.

’ The question as to whether the cause of action against the defendant below was joint, or joint and several, has not been considered by the court and is not here decided.

Judgment affirmed.  