State, Ex Rel. Elbert v. Bell , 42 Ohio App. 187 ( 1931 )

The plaintiffs by this action seek a writ prohibiting the defendants from proceeding to the final hearing of a forcible entry and detainer cause.

It appears from the petition that the defendants are judges of the municipal court of Cincinnati: "That on or about the 18th day of August, 1931, one Lucy Schwab and George Schwab, residents and living in Springfield township, which is outside the limits of the City of Cincinnati, instituted a suit in the Municipal Court of the City of Cincinnati, which suit * * * prays for a money judgment in the sum of one hundred and twenty ($120.00) dollars and also prays for restitution of premises."

The petition alleges as follows:

"Service was had on the defendants in that suit, Alice Elbert and Jack Elbert, by resident service on the defendants at Adams Road between Miles and Pippin Road, R.R. No. 13, Colerain Township, Hamilton County, Ohio; that plaintiffs, residents of Springfield Township, instituted this action against the defendants, residents of Colerain Township; that defendants on August 22nd, 1931, filed a motion to suppress and quash the service of summons for the reason that the Municipal Court of the City of Cincinnati had no jurisdiction; the defendants appeared only for the purpose of this motion and for no other purpose.

"The Municipal Court of Cincinnati, Honorable George E. Tebbs, presiding, overruled said motion to quash the said service and set said cause for trial on the 4th day of September, 1931."

The claim of the plaintiffs is that the municipal court of Cincinnati, under the General Code of Ohio, has no jurisdiction to try the cause, for the reason that the plaintiffs in that case are residents of Springfield township, and defendants residents of Colerain township; that the real estate in question is located in Colerain township none of which is a part of the city of Cincinnati. In other words, the claim of the plaintiffs is that the municipal court of Cincinnati has no jurisdiction in forcible entry and detainer cases when the subject-matter and parties are without the limits of the city of Cincinnati, although in Hamilton county.

The defendants demurred to the petition on the grounds that there is a misjoinder of parties defendant and that the petition does not state a cause of action.

The determining question here is whether or not the municipal court of Cincinnati has jurisdiction of the subject-matter of the suit in that court.

If the question involved is one of the jurisdiction of the person, the demurrer will have to be sustained and the petition dismissed, as this proposition would have to be determined in an error proceeding.

The demurrants claim the municipal court of Cincinnati has jurisdiction under and by virtue of Section 1558-6a, General Code of Ohio, establishing the municipal court of Cincinnati. The pertinent part of the section is paragraph (f), which is as follows: "In all actions, criminal, quasi-criminal, civil and preliminary hearings, in which justices of the peace have or may be given jurisdiction co-extensive with the county in which they are elected and preside."

It is argued that, since justices of the peace have jurisdiction in forcible entry and detainer cases throughout the county, by virtue of paragraph (f), above quoted, the municipal court is given jurisdiction in like cases throughout the county.

The plaintiffs argue that Section 1558-41 limits the jurisdiction of the justices of the peace to that part of the county outside of the city of Cincinnati, and therefore their jurisdiction is not coextensive with the county in such cases.

The pertinent part of Section 1558-41 is: "No justice of the peace in any township in Hamilton county, other than in Cincinnati township, nor mayor of any village or city in any proceeding, whether civil or criminal, in which any warrant, order of arrest, summons, order of attachment or garnishment or other process except subpoena for witnesses shall have been served upon a citizen or resident of Cincinnati or a corporation having its principal office in Cincinnati, shall have jurisdiction, unless such service be actually made by personal service within the township * * *."

It will be noted that in the district in Hamilton county outside of Cincinnati this section limits the jurisdiction of the justices of the peace to cases where personal service is had within the township of the justice who seeks to exercise jurisdiction. If personal service is had on a resident of Cincinnati in the township of the justice, attempting to exercise jurisdiction, the justice would have jurisdiction to hear and determine the action. The converse of this is that under Section 1558-6a, paragraph (f), if personal service is had within the city of Cincinnati on persons residing outside the city limits, then and in that event the municipal court of Cincinnati would have jurisdiction to hear and determine the question involved.

Moreover, Section 1558-6a, paragraph (d), provides: "(d) In actions and proceedings where one or more defendants reside or are served with summons in the city of Cincinnati."

Under this paragraph the municipal court of Cincinnati has jurisdiction coextensive with the county of Hamilton in actions where one or more of the defendants are served with summons in the city of Cincinnati.

Enough has been said to show that the question is one of jurisdiction of the person and not of the subject-matter.

Our conclusion is that, where personal service is had within the city of Cincinnati, the municipal court of Cincinnati has jurisdiction over the subject-matter in a forcible entry and detainer case, notwithstanding the parties and the property may be located outside of the city limits, but in the county of Hamilton.

The demurrer to the petition is sustained, the writ is refused, and the petition dismissed.

Decree accordingly.

ROSS, P.J., and CUSHING, J., concur.