The petition in this case is against three defendants, the Williamson Company, a furnace *Page 131 manufacturer, Gail H. Aller, a building contractor, and Fred Sampson, a furnace contractor. It was filed November 12, 1965. The praecipe filed with the petition ordered the clerk to "issue summons and copies of this Petition" to the defendants, including "Williamson Company, by serving the statutory agent, Nelson Schwab, Jr., 1616 Fifth-Third Bank Building, Cincinnati, Ohio," and to "Endorse thereon, `Action for money only, amount claimed Twenty Six Thousand Eight Hundred Nine and 87/100 Dollars ($26,809.87) plus interest and costs.'" This was done and thereafter the Williamson Company filed a motion not intending to enter its appearance and moved the court to quash the service of summons made upon it "for the reason that such service was illegal because the praecipe to the clerk of courts for service of summons does not state the nature of the relief sought by the plaintiff in its petition." This motion was thereafter sustained by the Common Pleas Court.
In this respect the Common Pleas Court was in error. This matter has been very carefully considered in the case ofBaldine v. Klee, 14 Ohio App.2d 181, on which motion to certify to the Supreme Court was overruled December 18, 1968.
In that case it was held:
"3. A summons, in the body of which `the nature of the relief sought' * * * is not set out, but which is endorsed on its back `action for money only' and the amount claimed, is not fatally defective on the ground that it does not state in the body thereof `the nature of the relief sought'; and it is prejudicial error to quash such service of summons for such reason."
In the Baldine case, as in this case, a copy of the petition was served with the summons.
The court in Baldine v. Klee in its opinion says:
"When a summons is served on a defendant he is called upon to examine its total content. A defendant cannot ignore part and entertain part. If defendants had inspected all the summons, and there is nothing in the record *Page 132 to show that they did not, they would have known the purpose of the service of the summons upon themselves and would have been apprised of the nature of the relief sought."
Nothing of importance was thereafter done in the case until on August 20, 1968, the defendant, Williamson Company, filed a motion asking that the plaintiff's petition be dismissed as against it.
Thereafter on September 6, 1968, the plaintiff filed a motion asking the court to vacate its former order quashing the service of summons, citing Baldine v. Klee.
On November 4, 1968, the court overruled the motion of the plaintiff for vacating and ordering quashing of the service and sustained the motion of Williamson Company that the petition of plaintiff be dismissed as to it.
It is from this order that this appeal is taken.
There is no question that the court should have vacated its order quashing service of summons upon the authority ofBaldine v. Klee, but such would not have been a final order from which this appeal could be taken. However, when the court dismissed the plaintiff's petition as to the defendant, Williamson Company, an entirely different question is presented.
A final order is defined in Section 2505.02, Revised Code, and is "an order affecting a substantial right in an action which in effect determines the action and prevents a judgment."
In my opinion the order appealed from is a final judgment.
We cannot anticipate what the evidence in this case will be but the petition is general and alleges that the furnace which was installed was imperfect mechanically and not in proper working condition, that plaintiffs received a warranty that the furnace and its installation was suitably and reasonably fit for the use intended and that it was averred by the defendants that the furnace was free from defects. It may be from the evidence that the Williamson Company is liable upon an express warranty. It may *Page 133 be that the Williamson Company is liable upon an implied warranty or that the Williamson Company is guilty of some negligence. This we cannot anticipate but in any event since the court has dismissed the petition of the plaintiff as to the Williamson Company the plaintiff is prevented from obtaining a judgment against it. The Williamson Company may be the main defendant and if the damage was caused by breach of warranty express or implied on behalf of the Williamson Company the two remaining defendants might not be liable therefor.
The dissenting opinion in the Milligan and Hamilton cases quoted in the majority opinion says:
"The issue before us thus resolves itself to be whether a judgment quashing summons and dismissing from the action one of several defendants charged to be jointly liable is a final appealable order when the action still remains pending and may proceed to judgment as to the defendants who are not dismissed."
This assumes that if plaintiff secures judgment it will be against all the defendants and that he may proceed to collect his judgment against any one of such defendants as remains.
However, Section 2307.191, Revised Code, provides inter alia:
"Judgment may be given for one or more of the plaintiffs according to their respective rights to relief, and against one or more defendants according to their respective rights to relief, and against one or more defendants according to their respective liabilities."
So that in the instant case it may very well be that plaintiff could not recover a judgment against all the defendants. The jury could very well determine that Aller, a building contractor, knew nothing of the furnace or its installation and that Sampson, the furnace contractor, knew nothing of the faulty construction of the furnace and enter judgment for them, but that the Williamson Company, being the manufacturer of an imperfect or faulty furnace, was liable upon its written warranty or implied warranty and *Page 134 enter judgment against it. Thus, the plaintiff would be unable to recover because the court by erroneously quashing the service and dismissing the action as to the Williamson Company had prevented a judgment. The defendants in this case are not mere names. Their liability, if any, in this case is distinct and separate, and it cannot be assumed, as the majority opinion argues, that as long as one defendant remains, plaintiff, if he receives a verdict, can proceed against him for collection. The damage to plaintiff here was substantial and the amount sued for is large, $26,809.87, and plaintiff is wronged by permitting the Williamson Company to escape liability in the first trial.
In my opinion the order appealed from "determines the action and prevents a judgment" against the Williamson Company and therefore is a final order. *Page 135