Oldroyd v. Willis , 48 Ohio App. 560 ( 1934 )

The service by publication is predicated entirely upon the affidavit for service by publication. This affidavit is provided for in Section 11293, General Code, which is set forth in the majority opinion in this case. The reference in the affidavit is entirely to paragraph 11 of Section 11292. This section reads, in part, as follows:

"Service may be made by publication in any of the following cases: * * *

"11. In an action or proceeding for a new trial or other relief after judgment, or to impeach a judgment or order for fraud, or to obtain an order of satisfaction thereof, when the defendant is not a resident of this state or his place of residence can not be ascertained; * * *."

It has been held that the fraud for which a judgment will be vacated "must consist of extrinsic acts outside of and collateral to the matter actually tried by the first court and not related to the matter concerning which the judgment or decree was rendered." Michael v. American National Bank, 84 Ohio St. 370,95 N.E. 905, 38 L.R.A. (N.S.), 220; Minetti v. Einhorn, 36 Ohio App. 310, 173 N.E. 243.

Now the affidavit states that the instant action is one of those mentioned in the statute. The action is defined by the petition. The affidavit, therefore, indirectly at least, states what the petition contains; what the action is. Reference to the petition so referred to by the affidavit shows that it is not one mentioned in the statute, for the reason that the fraud alleged is not extrinsic to the merits of the case as required by theMichael case.

It is suggested that this defect may be reached by demurrer to the petition. It will, to say the least, be an ironical situation for the defendants who find themselves in court to learn then, after they are in, that the case was not one covered by the statute permitting service by publication, and that, therefore, such service should not have been made.

The affidavit is before the court, by its side is the petition, definitely conclusive that the statement in the affidavit is untrue — that the action is not one covered by the statute. Under such circumstances is a court to close its eyes blindly to this defect in the affidavit merely because in form it conforms to the requirement of the statutes? I can not accede to such a proposition.

It is to me perfectly plain that the instant action is not one in which service by publication can be permitted. Then why sustain such service because of technical form, when the facts show that there is no legal substance to such technical form. I, therefore, dissent from the majority opinion.

While for the purpose of determining the validity of the affidavit it becomes necessary to determine from the petition the nature of the action, no direct attack upon the petition results, and it remains in full force, subject to proper address by motion, demurrer or answer.