This is an appeal on questions of law from a judgment of the Court of Common Pleas of Putnam county, Ohio.
The appeal is from a judgment of the Common Pleas Court dismissing Pauline Japel, one of the defendants, an appellee herein, as a defendant, for want of jurisdiction. *Page 286
The action was begun by Lenore Harris against Hugh Harris, Eva Harris and Pauline Japel alias Pauline Harris.
Hugh Harris and Eva Harris are residents of Putnam county, and were there served. Pauline Japel is a resident of Cuyahoga county, and was served with summons by the sheriff of Cuyahoga county.
Subsequent to the filing of the petition and the service of summons on Pauline Japel in Cuyahoga county, she filed an answer reading as follows:
"Now comes the defendant Pauline Japel and for her answer to plaintiff's petition filed herein denies each and every, all and singular, the allegations contained in plaintiff's petition. Wherefore, having fully answered defendant prays she may go hence without day and recover her costs herein."
Subsequent to the filing of that answer, plaintiff filed three amended petitions.
After filing her answer to the original petition, Pauline Japel did not file any further pleading nor did she take any part in the trial or subsequent proceedings in the case until she filed her motion upon which the court acted, and which brings the case into this court.
Upon the trial in the Common Pleas Court, the jury returned a verdict in favor of the plaintiff and against the defendants Hugh Harris, Eva Harris and Pauline Japel.
Motions for new trial and for judgment notwithstanding the verdict were filed by Hugh Harris and Eva Harris.
The court overruled the motion for new trial but sustained the motion for judgment notwithstanding the verdict, as to all three defendants.
From that order of the court, sustaining the motion *Page 287 for judgment notwithstanding the verdict, the plaintiff appealed to this court.
The court, on that appeal, made the following order, as shown by the journal of the court:
"This day this cause came on for hearing on the assignments of error, the briefs, the transcript, the original papers, pleadings and arguments of counsel.
"In consideration thereof the court finds that there is no error in any of the particulars assigned or argued in the brief of the appellant, as to the judgment in favor of the defendants-appellees Hugh Harris and Eva Harris and against the plaintiff-appellant and said judgment and proceedings as to the defendants-appellees Hugh Harris and Eva Harris is hereby affirmed at the costs of the plaintiff-appellant.
"On further consideration thereof the court finds that there is error insofar as the judgment in favor of the defendant-appellee Pauline Japel alias Harris against the plaintiff-appellant in that said judgment is contrary to law and said proceedings and judgment insofar as Pauline Japel alias Harris is concerned is hereby reversed and said cause remanded to the Court of Common Pleas for further proceedings according to law, at the costs of the defendant-appellee Pauline Japel.
"To all of which findings and judgment said plaintiff-appellant Lenore Harris and defendant-appellee Pauline Japel except.
"There being reasonable ground for appeal no damages are assessed as a penalty."
Thereafter, a motion was filed in the Supreme Court for an order directing the Court of Appeals to certify its record, which motion was overruled.
Subsequent to the remanding of the cause to the Court of Common Pleas, the plaintiff filed her motion for judgment upon the verdict against defendant Pauline *Page 288 Japel, and, at the same time, Pauline Japel filed a motion to dismiss the action against her for want of jurisdiction.
The motion of the plaintiff for judgment on the verdict was overruled, and the motion of the defendant Pauline Japel to dismiss the action for want of jurisdiction was sustained.
This action was instituted by the plaintiff against the three defendants, charging them with a conspiracy to alienate the affections of her husband.
The petition contains the following averment:
"Plaintiff further says that defendants Hugh Harris, Eva Harris and Pauline Japel alias Pauline Harris wilfully conspired against this plaintiff for the purpose of alienating the affections of her husband Delmar Harris."
The petition then goes on and sets out various acts that plaintiff alleges were committed by the three defendants, and then avers:
"Plaintiff further says that all of said acts by defendants, as herein set forth, were wilfully and maliciously done for the purpose of defrauding this plaintiff, to her damage in the sum of $50,000."
The allegations of conspiracy contained in the third amended petition, upon which trial was had, were contained in the original petition and all subsequent petitions, and are identical in form and substance except as to minor changes in phraseology.
It will be seen that from the inception of this case the plaintiff has maintained that the acts of the defendants constituted a conspiracy to alienate the affections of her husband and to deprive her of her marital rights.
It was on that theory of conspiracy that summons was served upon defendant Pauline Japel in Cuyahoga county. *Page 289
While the petition leaves much to be desired, it contained sufficient averments to charge a conspiracy, and it was on that theory of conspiracy that the case was tried in the Common Pleas Court, and on appeal to this court.
Holding as we do, that the petition charges a conspiracy, the next question is whether defendant Pauline Japel has done anything or failed to do anything which entered her appearance or prevented her from denying the jurisdiction of the court by the motion she filed to dismiss the action against her.
The answer filed by Pauline Japel is a general denial.
The Supreme Court, in the case of Bucurenciu v. Ramba, 117 Ohio St. 546, 159 N.E. 565, laid down the rule as follows:
"Where the question of the jurisdiction of the court over the person of the defendant is one of fact, not appearing upon the face of the record, objection made thereto by answer of the objecting defendant as his first act in the case is objection at the first opportunity and saves an exception to the jurisdiction.
"Where the jurisdiction of the court to acquire jurisdiction over the person of the defendant by service of summons in a foreign county appears only by the allegations of the petition, a general denial filed by such defendant challenges such jurisdiction, and under such general denial such defendant may at the same time and throughout the trial question both the jurisdiction and the merits of the cause."
In the case of Gorey v. Black, 100 Ohio St. 73, 125 N.E. 126, it was held:
"In order to give the court jurisdiction over joint defendants who are nonresidents of the county where suit is brought and for whom summons has been issued to another county, the averments of the petition *Page 290 and the proof on the trial must show that the plaintiff has a valid joint cause of action against the defendants on whom valid service is had as well as against the nonresident defendants."
In view of that statement by the Supreme Court, Pauline Japel challenged the jurisdiction of the court over her person at the first possible time, and having challenged the jurisdiction of the court over her person in the answer there was nothing further that Pauline Japel could do or was required to do until it had been finally determined by the court that the plaintiff had failed to prove by the evidence a joint conspiracy.
The trial court found that insufficient evidence existed to show a conspiracy between Hugh Harris, Eva Harris and Pauline Japel to alienate the affections of plaintiff's husband. This court, on appeal, also held there was insufficient evidence to support the claim of joint conspiracy.
When the court found from the evidence that a conspiracy did not exist, as alleged by the plaintiff, and dismissed the resident defendants, that was the first moment a motion by Pauline Japel to dismiss the action against her for want of jurisdiction could be decided in her favor.
The court did not have jurisdiction of the person of the nonresident defendant when it was found from the evidence that there was no conspiracy and dismissed the resident defendants. The court, not having jurisdiction of the person of the defendant Pauline Japel, did not have jurisdiction to render any judgment against her, and any such judgment would be void.
The Court of Appeals remanded the cause to the Court of Common Pleas for further proceedings according to law, and when the defendant filed her motion the case stood as it did when the jury returned its verdict. *Page 291
The defendant Pauline Japel was not required to take any action in the case other than that taken by her. Her status was fixed by the general denial of her answer, and upon the filing of her motion to dismiss her upon jurisdictional grounds, the court was required to sustain it and to dismiss her as a defendant.
Holding this view of the case, we find no error, and the judgment of the Court of Common Pleas is affirmed.
Judgment affirmed.
JACKSON, J., concurs.