
    No. 34
    OHIO GROCERY CO. v. W. VA. MACARONI Co.
    Ohio Appeals, 7th Dist., Manoning County
    Decided Oct. 19, 1923
    959. PROCESS — Service of summons on cross-petition setting up counter claim as defense on promissory note held not required.
    Attorneys — J. M. Modarelli and Carl Armstrong, Youngstown, for defendant; Carter & Sheets and Harrington, Deford, Huxley & Smith, Youngstown, for plaintiff.
   FARR, J.

Epitomized Opinion

Action in Mahoning Common Pleas on a promissory note. Defendant Macaroni Co. filed an answer and cross-petition admitting the note and its non-payment, and filed also a cross-petition in counter claim, the first cause of action of which set up that Macaroni Co. sold to Grocery Co. a car load of macaroni for $2250; and that Grocery Co. paid $1250 in cash and gave the “said note” for the balance, and that the macaroni, on its receipt, was found' to be worm-eaten and wholly unfit for use. No summons was issued on the cross-petition. Plaintiff made a motion for judgment on the p'eadings which was sustained by the trial court and judgment entered Defendant prosecutes error. Held:

959..PROCESS — Service of summons on cross-petition with the cause of action contained in the petition. Plaintiff submitted itself to the jurisdiction of the trial court, concerning the whole controversy relating to the note. Hence defendant could maintain the counter claim as against the note without the service of process on the plaintiff. The trial court erred in entering judgment on the pleadings. Reversed and remanded.  