Nunlist v. Motter , 81 Ohio App. 506 ( 1947 )

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery county, affirming a judgment for the plaintiff rendered by the Municipal Court of Dayton.

The defendant, appellant herein, assigns as error that the judgment is contrary to law and is not sustained by sufficient evidence.

The action is one in forcible entry and detainer. The sole question for determination is whether the notice to leave the premises, which is required to be served on the tenant by the provisions of Section 10451, General Code, may be served by registered mail. The case was tried on an agreed statement of facts in which it was stipulated that a copy of the notice to leave the premises was sent by registered mail, in an envelope addressed to the defendant, to her residence, which copy was mailed at the post office in Dayton, Ohio, with a return receipt requested, and that thereafter the receipt was returned.

The return receipt is as follows:

"Return Receipt. "Received from the postmaster the registered or insured article, the original number of which appears on the face of this card. "S/ Helen Motter "(Signature or name of addressee)

"Date of delivery 9-19, 1946."

The production of this receipt bearing the signature of Helen Motter established a prima facie case of the fact of delivery of the notice to the defendant personally by the post office department. Since no effort was made to rebut the presumption, the court had a right to conclude that the notice was handed to the defendant personally by the postman.

Do the facts show a compliance with the requirements of Section 10451, General Code, which provides:

"A party desiring to commence an action under this chapter, must notify the adverse party to leave the premises, for the possession of which action is about to be brought, three or more days before beginning the action, by handing a written copy ofthe notice to the defendant in person, or by leaving it at hisusual place of abode." (Italics ours.)

It is urged by the defendant that since the General Assembly failed to expressly provide for the giving of such notice by registered mail, the service of such notice by registered mail is not permitted, under the accepted rule of statutory construction that expressio unius est exclusioalterius. However, it must be observed that the statute does not expressly provide by whom the service shall be made. If `the statute provided that the notice shall be served by the sheriff, such contention could be urged with some force. Again, it is urged that since the General Assembly has seen fit to provide for service of notices by registered mail, in the Probate Code (Sections 10507-4 and 10509-59, General Code), in the section of the Code pertaining to the adoption of children (Section 10512- 12, General Code), in the section which provides for the giving of notice prior to the institution of garnishment proceedings (Section 10272, General Code), and in the Mechanics' Lien Law (Section 8323-3, General Code), the omission to expressly provide for registered mail service in Section 10451 forbids such service. However, it was held under the provisions of Section 10272, General Code, prior to the amendment which provided for service of notices by registered mail, that the service by registered letter of the written demand on the debtor prior to the institution of garnishment proceedings, if the letter was delivered to the debtor personally, was a sufficient compliance with the statute. Hughes v. Shields, 15 O.D., 255; Ostrander v.Norris, 20 C.D., 643. Those sections are not in pari materia with Section 10451, General Code, and have no controlling effect in determining the construction to be placed on the latter section. However, it is interesting to note that the Supreme Court of Ohio, in considering Section 10272, General Code, after the amendment which provided for service by registered mail, in the case of Stein-Orebaugh v. Andre, 140 Ohio St. 182, 184,42 N.E.2d 904, held:

"This case falls within a very narrow compass. The basis of the motion to dismiss the proceedings in aid of execution urged in the Common Pleas Court was that the notice of demand for personal earnings was delivered by ordinary mail and that such delivery did not comply with the provisions of Section 10272, General Code. The Court of Common Pleas considered this contention well founded and dismissed the proceedings in aid on that ground. This was the single issue considered in the Court of Appeals. That court took the view that under Section 10272, General Code, the delivery of the creditor's demand was permissible by ordinary mail, and so remanded the cause for further proceedings. This action was clearly correct since the record indicates that the demand was in fact served `by leaving it at defendant's (debtor's) usual place of residence by means of the postman by regular mail,' which was clearly one of the permissible methods of service under the provisions of Section 10272, General Code."

Also, see, Coleman v. Levinson, 11 Ohio Supp., 35.

In applying the principle of law laid down in the case ofStein-Orebaugh v. Andre, supra, to the facts in this case, the service made on the defendant would be a sufficient compliance with the requirements of Section 10451, which provides for service "by leaving it at his usual place of abode." However, in our opinion the facts in this case show personal service on the defendant.

It may be conceded that the notice to leave the premises required to be served on the tenant under Section 10451, General Code, may be served by an agent of the landlord. In 32 Ohio Jurisprudence, 101, is found this statement:

"It is quite well settled by a long line of authorities that the United States mail is the agent of the sender, unless, by a contract between the sender and the addressee, the former is required only to mail the letter or article, when the mails become the agent of the addressee."

The author of Ohio Jurisprudence refers to the case of State v.Douglas, 114 Ohio St. 190, 192, 150 N.E. 733, in which the court held:

It is quite well settled by a long line of authorities that the United States mail is the agent of the sender."

See Colyear v. Tobriner, 7 Cal. (2d), 735, 62 P.2d 741, 109 A.L.R., 191.

In the case at bar the United States mail was the agent of the plaintiff in making the service on the defendant. In our opinion registered mail service is permitted under the provisions of Section 10451, General Code. In Ostrander v. Norris, supra, Judge Winch asked the question: "What difference does it make, so long as the debtor personally receives the written demand, whether it is handed to him by the creditor, his attorney, the attorney's clerk, a messenger boy, or a letter-carrier?" The undisputed facts in this case show that the service made effectually complied with both provisions in Section 10451, General Code, which provides that notice may be given either "by handing a written copy of the notice to the defendant in person" or "by leaving it at his usual place of abode."

Finding no error in the record, the judgment is affirmed. Case is remanded for further proceedings according to law.

Judgment affirmed.

MILLER and HORNBECK, JJ., concur.