
    Simmons v. Simmons et al.
    (Decided January 19, 1931.)
    
      Messrs. Bernon, Mulligan, Keeley <& LeFever, for plaintiff in error.
    
      Messrs. Nicola & Horn, for defendants in error.
   Vickery, P. J.

This cause came into this court on a petition in error to the common pleas court of Cuyahoga county, the purpose being to reverse a judgment of the court below in overruling a motion to quash service of summons upon the defendant, Allen T. Simmons.

From the record, arguments of counsel, and briefs, we learn that the defendant in error, Pearl Simmons, as plaintiff, brought her action in the common pleas court of Cuyahoga county, asking for divorce and alimony against the defendant, that the defendant was a resident of Summit county, and that summons, with a copy of the petition, was sent by the clerk to the sheriff of Summit county to be served in said county.

Apparently the sheriff had some difficulty in locating and serving summons upon the defendant. So after the summons had been twice returned as unserved, the attorney for the plaintiff, Mr. Nicola, went to Akron and took with him a person by the name of Corbus, a resident, I believe, of Cuyahoga county, and asked to have the sheriff of Summit county deputize him to serve a summons upon the defendant in Summit county, whereupon the sheriff, as the record shows, swore the said Corbus in as a special deputy for the purpose of serving summons, with copy of the petition attached, but did not enter upon the summons the authority of Corbus to serve said summons; nor was there anything upon the summons that was served upon the defendant which would notify him of the right or power that Corbus had to serve said summons. Cor-bus was not the sheriff of Summit county, was not a regular deputy of said sheriff, and was not a resident of said county, but was merely deputized by the sheriff to serve this one summons upon the defendant, with a copy of the petition attached. At that time no entry of any kind was made in writing by the sheriff upon the original summons or upon any other summons.

After the said Corbus had served the summons, with copy of the petition attached, upon the defendant in the action below, the sheriff later made his return upon a copy of the summons, and on that summons he set forth the authority that Corbus had to serve the summons; that is, that he had been deputized by the sheriff to serve the summons. This was a day and a half or two days after the summons was served.

The sheriff then made his return to the clerk of courts of Cuyahoga county, whereupon counsel for defendant made a motion in court to quash the service, expressly stating that the motion was for that purpose only and not for the purpose of entering the appearance of defendant. The motion was heard by the common pleas court and was overruled, and that is the error that is complained of here.

We have examined the authorities cited in this case, including the statutes, particularly Section 11285 of the General Code, and we think it was the duty of the sheriff to indorse upon the summons that was served upon the defendant the authority of this man Corbus to serve the summons, so that the defendant would know that he was legally summoned into court.

So far as it appears in this record — from plaintiff in error’s standpoint — there was nothing to show that Corbus had any authority or power. He might have been a mere outsider who had secured possession of this summons and undertaken to serve it. We think, especially in divorce and alimony matters, that the law should be strictly construed, and that the defendant should be legally summoned into court. The proceedings are all adversary, and the statute must be strictly construed and service obtained upon the defendant in accordance with law. Otherwise it would open the door wide to collusion and fraud in procuring divorces, a thing that the courts of Ohio have strictly guarded against so far as is within their power. While it must be admitted that a sheriff has the power to specially deputize a person to make service of summons in any particular case, yet that deputization should plainly appear so that the party upon whom the service is made may know that it was properly made upon him. We think the authorities that have been cited in this case amply bear out this proposition.

We think, therefore, that the court erred in overruling the motion to quash this summons, and for that reason the judgment of the court of common pleas will be reversed, and the cause remanded, with instructions to that court to grant the motion to quash the service of summons, and order a new summons issued. Such will be the order of the court.

Judgment reversed and cause remanded.

Levine and Weygandt, JJ., concur.  