Murray v. Remus , 4 Ohio Law. Abs. 7 ( 1925 )

BUCHWALTER, P. J.

J. W. Murray, sued George Remus, a nonresident of Ohio, in the Hamilton Common Pleas for conversion. Summons was issued and returned as having been served on Remus “at his usual place of residence” on July 8, 1924, service having been made under 11286 GC. A motion to quash was filed by Remus, two affidavits being offered to support said motion, and one against the motion. Upon hearing it was granted by the court and Murray prosecuted error to the Court of Appeals which held:

1. It is conceded by both parties that Remus is and has been since Jan. 24,' 1924, confined in the Atlanta Penitentiary, Fulton County, Georgia.

2. The affidavits filed for Remus are to the effect that he has not been a resident of Hamilton County since Jan. 24, 1924; and that he had no present intention of returning to Ohio.

3. Murray’s affidavit stated that prior to Remus’ incarceration, he maintained a residence in Cincinnati which at the time of the service was occupied by his wife.

4. “Residence in a place, to produce a change of domicile, must be voluntary. If therefore it be by constraint or involuntary, as arrest, imprisonment, etc., the antecedent domicile of the party remains.”

5. The removal of Remus to the Federal Prison did not change his place of usual residence as contemplated in 11286 GC. His removal lacked the element of choice or volition.

6. Residence resulting from operation of law supervenes dpon a disability to make a choice. Sturgeen v. Kerte, 24 OS. 525 at 535.

7. Under the facts in this case and under authorities, “the usual place of residence” of Remus, at the time of service of summons was in Cincinnati, and such service was had at his “usual place of residence.”

8. The court erred in granting the motion to quash and judgment will be reversed with instructions to overrule the motion.

Judgment reversed.