Cause No. 617 involves an appeal on questions of law by Charles C. Ford and E.T. Ford from a judgment of the Common Pleas Court of Darke county, Ohio, in an action (being cause No. 31017 in that court) wherein Mary E. Beachler and others were plaintiffs and Charles C. Ford and E.T. Ford and others were defendants, overruling separate motions, amendments to such motions and supplemental motions of the defendants Charles C. Ford and E.T. Ford, all filed within the term the verdict and judgment were rendered, to set aside the verdict and judgment rendered in such cause and to grant the defendants Ford a new trial.
The subject matter of the action is the contest of the will of W.H. Ford, a brother of the defendants Ford.
Cause No. 618 involves the separate appeals of the defendants Charles C. Ford and E.T. Ford from a judgment of the Common Pleas Court of Darke county, Ohio, in an action (being cause No. 31018 in that court) wherein Mary E. Beachler and others were plaintiffs and Charles C. Ford and E.T. Ford and others were defendants, overruling the separate motions of the defendants Charles C. Ford and E.T. Ford, the amendments to such motions and supplemental motions to set aside the judgment rendered in the cause and to grant defendants a new trial.
The subject matter of the action is the setting aside of a deed of real estate, executed and delivered by the decedent, W.H. Ford, to the defendant Charles C. Ford, upon the ground that W.H. Ford was incompetent to execute and deliver such deed, and for partition of the premises. *Page 43
The parties to both actions are the same. By agreement of the parties the motions in both the cases were heard and submitted together and, as the legal questions raised by the separate appeals in both actions are practically the same, the appeals in both cases will be considered together in this opinion.
In cause No. 617 the plaintiffs, in their petition, allege that on the 11th day of November 1941 W.H. Ford died leaving an estate and leaving the plaintiffs and defendants Charles C. Ford and E.T. Ford his only heirs at law and next of kin; that on the 16th day of February 1942 a writing purporting to be the last will and testament of W.H. Ford, dated the 18th day of June 1934, was admitted to probate and letters testamentary were issued to Charles C. Ford who qualified as executor; and that by the terms of such paper writing Charles C. Ford, E.T. Ford and Joseph Ford (who predeceased W.H. Ford) are named as the several legatees and devisees of W.H. Ford, deceased.
Plaintiffs further allege that the paper writing was not the last will and testament of W.H. Ford, and pray that an issue be made as to whether such paper writing is the last will and testament of W.H. Ford, deceased, and that the same be set aside.
Summons on the petition was duly issued for, and served on, the defendants Charles C. Ford and Charles C. Ford as executor of the estate of W.H. Ford, deceased.
An affidavit for constructive service upon the defendant E.T. Ford was duly filed, being in the words and figures following, to wit:
"State of Ohio, Darke county, ss:
"Mary E. Beachler, being first duly sworn on her oath, deposes and says that the defendant, E.T. Ford, resides at Red Key, Indiana, and that the defendant, F.F. Wassam, administrator of the estate of Joseph *Page 44 Ford, deceased, resides at 3216 Home avenue, Marion, Indiana, and that by reason thereof, service of summons cannot be made upon said defendants; that this is an action to contest the will of W.H. Ford, deceased, and is one of those actions provided for in Section 11292 of the General Code of Ohio.
"Further affiant saith not.
"Mary E. Beachler."
Pursuant to such affidavit, advertisement for service by publication on E.T. Ford was duly published in the issue of the Greenville Daily Advocate of June 23, 1942, and mailed to E.T. Ford at Red Key, Indiana.
Neither of the defendants Charles C. Ford and E.T. Ford filed a demurrer or answer to the petition within rule, and, such defendants being in default for answer or demurrer, the court assigned the cause for trial for October 6, 1942. Neither of the defendants had notice of such assignment and neither appeared at the trial of the cause.
On the trial of the cause, it appearing to the court that no jury issue had been made up by the pleadings, it was ordered that the following issue of fact be submitted and tried by the jury, to wit, "Is the writing produced the last will and testament of W.H. Ford, deceased?"
Trial was then had to a jury on the issue made by the court with reference to the validity of the will and the jury, upon the trial, found that the paper writing admitted to probate was not the last will and testament of W.H. Ford.
The verdict of the jury was returned on October 6, 1942, and on October 10, 1942, the Common Pleas Court made a journal entry reciting that the jury having rendered a verdict for the contestant and no motion for new trial having been made, it was decreed by the court that the writing produced purporting to be the *Page 45 last will of W.H. Ford is not his valid last will and testament.
Thereafter, on December 4, 1942, a motion, duly sworn to, was filed by defendant Charles C. Ford in the cause, asking that the court set aside the verdict of the jury rendered on October 6th, 1942, and the judgment of the court entered on the 10th day of October 1942, for the reasons that the verdict and judgment were procured by false testimony presented in the absence of the defendant Charles C. Ford when he was under the erroneous impression that it was unnecessary for him to appear and defend the action after having been served with summons; that the verdict of the jury and the judgment of the court are contrary to the evidence and against the manifest weight thereof; that at the time of the execution of the will in question W.H. Ford was possessed of sufficient mind and intelligence to properly make and execute a last will and testament; that the defendant Charles C. Ford is a man of advanced years and infirm, and various persons advised him as to what to do when he was named party defendant in the action; that he was confused by the entire proceedings and was under the erroneous impression that by reason of the fact his brother W.H. Ford had executed a deed to him for the real estate and had given him the other personal property it would be unnecessary for him to appear and contest the action; that there is irregularity in the service by publication; and that there is no lawful evidence to support the verdict and judgment of the court.
In his motion he averred that he was ready, able and willing to deposit in the office of the clerk of courts sufficient money to guarantee all costs in the case, costs of administration and reasonable attorney fees incurred by reason of his failure to answer in the action and defend the same. *Page 46
With his motion he tendered his answer to the petition and asked leave that the same be filed and that a new trial be granted for the furtherance of justice. In the answer tendered by him, Charles C. Ford admitted only the execution by W.H. Ford of his last will and testament as set forth in the petition, and denied all allegations in the petition contained, not expressly admitted to be true.
On January 4, 1943, Charles C. Ford filed a motion, designated by him as an amendment to motion and supplemental motion, to set aside the verdict, vacate the judgment and for a new trial.
In the amended and supplemental motion he asked that the verdict of the jury and the judgment of the court be set aside, and for a new trial in the cause, for the following reasons:
1. Such hearing, verdict and judgment by default were had before the cause regularly stood for trial pursuant to law.
2. There was a defect in the affidavit for service by publication in that it did not recite that service could not be had upon the defendant, within the state of Ohio.
3. Such verdict and judgment were not sustained by the evidence and are contrary to law, there being insufficient evidence offered by plaintiff to overcome the presumption in favor of the will by reason of its admission to probate.
4. Because defendant had no notice of the hearing through his counsel of record until the date of the hearing; the defendant is an old man living alone, has no means of conveyance and was unable to be present at the hearing and make an adequate defense thereto.
5. Because of other errors and irregularities apparent on the face of the record.
6. Because defendant filed this motion within the term and defendant has a full, complete and adequate *Page 47 defense to the action which is based upon testimony known by defendant and by plaintiffs to be false when presented.
On December 16, 1942, the defendant E.T. Ford filed a motion in the cause, duly sworn to by his attorney, to set aside the verdict of the jury and the judgment of the court entered in the case, for the following reasons:
1. Such judgment was rendered without other service on this defendant than by publication in a newspaper within the present term of court, and the defendant had no actual notice of the pendency of the action until after the judgment had been entered on the dockets of the court.
2. Such verdict and judgment were procured by false testimony presented in the absence of the defendant, and the verdict of the jury and judgment of the court are contrary to the evidence and against the manifest weight of the evidence.
3. Because of all other reasons apparent on the face of the record.
4. Because the defendant has a good and adequate defense to the action.
With the motion he tendered answer to the petition, to the same general effect as the answer tendered by the defendant Charles C. Ford, and in his motion he further offered to secure all court costs and pay all costs in the case to date, in event his application was well taken.
On January 4, 1943, the defendant E.T. Ford filed a motion, which he designated as amendment to motion and supplemental motion, to set aside the verdict, vacate the judgment, and for new trial, in which he states that he is the only living brother of Charles C. Ford who is a bachelor and has lived alone for a number of years; that Charles C. Ford has a poor memory, *Page 48 is aged and infirm, and that he appears here as a friend of the court and as next friend of Charles C. Ford to assist him in the defense of the within action; that this defendant E.T. Ford did not have notice of the default judgment herein and the failure of Charles C. Ford to appear, until after the entry of the verdict and judgment; and that he requests the court for a separate hearing as to the competency of Charles C. Ford at the time of the proceedings against him, that the interests of Charles C. Ford be protected, and that it be determined whether Charles C. Ford was of sound mind and able to properly defend himself at the time of the entry of the within judgment. This motion was duly sworn to by his attorney.
Summons on the petition in case No. 31018 in the Common Pleas Court, being case No. 618 in this court, was duly issued for, and served upon, the defendant Charles C. Ford and Charles C. Ford, executor of the estate of W.H. Ford, deceased.
An affidavit for constructive service on the defendant E.T. Ford was duly filed in the cause, the affidavit being in the same general form as the affidavit for constructive service in case No. 31017 in the Common Pleas Court, being case No. 617 in this court.
Pursuant to the affidavit, advertisement for service by publication on E.T. Ford was duly published in the issue of the Greenville Daily Advocate of June 23, 1942, and mailed to E.T. Ford at Red Key, Indiana.
Neither of the defendants Charles C. Ford and E.T. Ford filed a demurrer or answer to the petition, within rule, and such defendants being in default for answer or demurrer, the court assigned the cause for trial for October 6, 1942. Neither of the defendants had notice of such assignment and neither appeared at the trial of the cause.
Such cause was tried by the court upon the same *Page 49 evidence introduced in case No. 31017, and the court, on the trial, found from the evidence, on the first cause of action pleaded in the petition, that on the 2nd day of July 1934 W.H. Ford executed a deed for the premises described in the petition to Charles C. Ford, that at such time W.H. Ford was incompetent, as alleged in the first cause of action in the petition, and that by reason thereof the deed should be set aside. The court rendered judgment on the first cause of action setting aside the deed.
On the second cause of action, the court found that the plaintiffs and the defendants Charles C. Ford and E.T. Ford were the owners of the real estate described in the petition, determined their respective interests therein, further found that there was sufficient personal property in the estate of W.H. Ford, deceased, to pay his indebtedness and that the plaintiffs are entitled to partition of the real estate as prayed for in the petition, and rendered judgment ordering partition of the premises.
On December 4, 1942, within term, the defendant Charles C. Ford filed his motion in the cause to vacate the judgment and the sale proceedings, and for new trial.
In his motion he avers that he is the owner of the premises and when the premises were conveyed to him by the deed he was under the impression and was advised by various persons that he had a fee simple title to the real estate and no matter what proceedings were brought against him the real estate could not be taken from him; that because of that erroneous impression he did not appear in answer to the summons issued against him in the case and did not have his day in court in the within cause; and that the judgment in the cause is not based upon facts but based upon false testimony as to the incompetency of W.H. Ford, *Page 50 deceased, and the failure of any consideration passing for the conveyance.
In the motion, he further avers that in truth and in fact W.H. Ford, at the time of the conveyance, was not incompetent and was fully able to transact business.
In his motion, he further avers that he is now ready, able and willing to deposit in the office of the clerk of courts sufficient money to guarantee payment of all court costs in the action on a rehearing, and to pay all court costs incurred in his failure to answer within the time provided in the summons served upon him. He tendered with his motion his answer to the petition and asked leave that the same be filed and that a new trial be granted for the furtherance of justice.
The answer tendered amounts to a general denial of the allegations of the petition.
In his motion, he further avers that the judgment in partition in the cause was rendered without authority, before the expiration of a year from the death of the decedent and without proof that there was sufficient personal property to pay the debts of the estate of W.H. Ford, deceased; and that the judgment is irregular. He asks that the judgment be set aside because of the various matters set forth in the motion and other errors apparent on the face of the record.
On the same date, to wit, December 4, 1942, the defendant E.T. Ford filed his motion in the cause, to vacate the judgment and sale proceedings, and for new trial.
In his motion, he avers specifically various grounds for the setting aside of the judgment which grounds are averred generally in the motion to vacate filed by Charles C. Ford, and a further ground that the judgment should be set aside because it was entered without notice to him and without service upon him other *Page 51 than by publication in a newspaper, within the term of court in which the motion was filed.
In his motion he makes an offer for the payment of costs, similar to the offer made in the motion of Charles C. Ford, and tenders an answer similar to the answer tendered by Charles C. Ford.
On January 4, 1943, Charles C. Ford filed a motion in the cause designated as "Amendment to motion heretofore filed and supplemental motion to vacate judgment and sale proceedings."
In that motion he sets forth certain additional grounds for the vacation of the judgment, as follows:
1. Because the judgment entry of October 8th was entered before the cause regularly stood for trial on the trial docket.
2. Because no notice of the assignment of the cause was given to his counsel of record, as provided for by rule of court.
3. Because no assignment was ever made of the cause prior to the date of the hearing of October 6 or 8, 1942.
4. Because of defect of parties defendant, there being an executor of the estate of Will Ford who was a necessary party defendant and was not named as party defendant or served with summons.
5. Because the court did not have jurisdiction of all of the necessary parties to the action.
6. Because the affidavit for service by publication was defective in not stating that the defendant could not be served with summons in the state of Ohio.
7. Because there was no evidence presented in the cause in support of the judgment as to failure of consideration, or that the grantor of the deed was incompetent, and no offer was made to tender back consideration paid by grantee known to plaintiffs.
8. Because the court lacked jurisdiction to render *Page 52 judgment on October 8th without evidence being submitted that all of the debts of the estate of Will Ford had been paid, or that there was sufficient personal property to pay such debts.
9. Because of all other errors and irregularities apparent on the face of the record.
On the same date, to wit, January 4, 1943, E.T. Ford filed a motion in the case, designated "Amendment to motion heretofore filed and supplemental motion to vacate judgment and sale proceedings." In that motion E.T. Ford asserts the same grounds for the vacation of the judgment, as asserted by Charles C. Ford in his amendment to motion and supplemental motion, and an additional ground as follows:
"E.T. Ford, being the only brother and next friend of Charles C. Ford, says there is question regarding the competency and soundness of mind of Charles C. Ford at the time of the proceedings herein, and that this defendant, as a friend of the court, requests a full hearing with respect to same as a ground for vacating said judgment."
As hereinbefore mentioned, all the various motions in both cases were heard and submitted together upon the same evidence and stipulations of counsel, which are embodied in a bill of exceptions filed in each case herein. All the motions were overruled by the court and the appeals in both cases are taken from the judgments of the court overruling the motions.
Insofar as the various motions made in both cases by Charles C. Ford are concerned, we deem it sufficient to say, without discussing the grounds or reasons in detail, that it does not affirmatively appear of record that the trial court erred to the prejudice of Charles C. Ford in overruling the same.
The same holding is applicable to the various motions filed by E.T. Ford in both cases, except insofar *Page 53 as the ground is concerned which is mentioned specifically in his amendment to motion and supplemental motion filed in cause No. 31018 and set forth generally in his amendment to motion and supplemental motion filed in cause number 31017, for vacation of judgment because the affidavit for service by publication was defective in not stating that the defendant could not be served with summons in the state of Ohio.
"Substituted service and service by publication was unknown to the common law but depends upon statutory authorization, and the principle of statutory construction that there must be strict compliance with enactments modifying the course of common law in regard to legal proceedings is exemplified in the cases involving the construction and applications of provisions authorizing substituted and constructive service. When, by the local law, substituted or constructive service is in certain situations substituted in the place of personal service when the latter is inconvenient or impossible, a strict and literal compliance with the provisions of the law must be shown in order to support the judgment based on such substituted or constructive service. Jurisdiction is not to be assumed and exercised on the general ground that the subject matter of the suit is within the power of the court. The inquiry must be as to whether the requisites of the statute have been complied with, and such compliance must appear on the record. The fact that the defendant had actual knowledge of attempted service does not render the service effectual if in fact the process was not served in accordance with the requirements of the statute." 42 American Jurisprudence, 55, 56, Section 66.
The holdings of the courts of Ohio are in accord with the rule above mentioned. 32 Ohio Jurisprudence, 456, Section 67; Millis v. Millis, 17 N.P. (N.S.), 254, 25 O.D., *Page 54 370; Morton v. Davezac, 20 Ohio App. 427, 431, 152 N.E. 679;Welch v. Farmers' Loan Trust Co., 165 F., 561, 562.
The statute providing for service by publication is Section 11293, General Code, which reads in part as follows:
"Before service by publication can be made, an affidavit must be filed that service of summons can not be made within this state on the defendant sought to be served, and that the case is one of those mentioned in the next preceding section."
The affidavit for constructive service filed in each of the cases charges that the defendant E.T. Ford resides at Red Key, Indiana, "and that by reason thereof, service of summons cannot be made upon him." The mere fact that the defendant resided in Indiana would not preclude service being made upon him in Ohio, as the statutes of Ohio permit service of summons on a nonresident defendant within the state and it is a matter of common knowledge that services of summons on nonresident defendants are frequently made within the state. Consequently the recital mentioned is not equivalent to an averment that service of summons cannot be made within this state on the defendant sought to be served, as required by statute.
As the provisions of the statute were not complied with, the service by publication attempted to be made was, under the authorities mentioned, void and the court did not acquire jurisdiction over the defendant E.T. Ford. 31 American Jurisprudence, 301, 302, 303, Sections 764, 765, 766, and cases cited in note 7 to Section 765 and note 18 to Section 766.
In both the cases, the defendant E.T. Ford tendered meritorious defenses by way of answers amounting to general denials. The tender of such a defense is necessary in the ordinary proceeding to vacate a judgment, *Page 55 but in cases, such as the instant cases, where the ground for vacation is that the court rendering the judgment sought to be vacated was without jurisdiction of the defendant by reason of failure to comply with the requirements of law as to service of process, such tender is unnecessary. Heffner v. Gunz, 29 Minn. 108, 12 N.W. 342; Savings Bank of St. Paul v. Arthur, 52 Minn. 98, 53 N.W. 812.
For the reasons mentioned, the defendant E.T. Ford was entitled to have the judgment in each of the cases vacated on the ground mentioned.
In the case of Bradford v. Andrews, 20 Ohio St. 208, 219, 5 Am. Rep., 645, the Supreme Court held that the interest of the parties in a will contest is joint and inseparable; that such contest is substantially a proceeding in rem and the court cannot take jurisdiction of the subject matter by fractions; and that the will is indivisible and the verdict of the jury either establishes it as a whole or wholly sets it aside.
In the light of that holding it is obvious that the vacation of the judgment in the will contest case as to the defendant E.T. Ford will have the effect of vacating it as to all the parties and the cause will stand in the same manner as if no judgment had been rendered, with the right of any person interested, including the defendant Charles C. Ford, to plead and prosecute or plead and defend accordingly.
The action to set aside the deed upon the ground of the mental incapacity of the grantor has the same characteristics as the action to set aside the will, so that the same rules are applicable in that case to the rights of the parties upon the vacation of the judgment on the motion of the defendant E.T. Ford.
The plaintiffs, appellees herein, however, contend that the defendant E.T. Ford has not been aggrieved by the final orders of the Common Pleas Court overruling *Page 56 his motions to vacate the judgments in the will contest case and in the action to set aside the deed, for the reason that under the provisions of the will he receives only one dollar and under the provisions of the deed nothing, whereas under the judgments setting the will and deed aside he will receive a much greater amount.
In support of that contention the plaintiffs cite the case ofOhio Contract Carriers Assn., Inc., v. Public UtilitiesCommission, 140 Ohio St. 160, 42 N.E.2d 758, in which it was held that appeal lies only on behalf of a party aggrieved by the final order appealed from, and that appeals are not allowed for the purpose of settling abstract questions but are allowed only to correct errors injuriously affecting the appellant.
The statement of facts in the above-cited case discloses that the appeal in question was taken from an order of the Public Utilities Commission relating to the fixing of a Toledo metropolitan zone for the operation of service by regular and irregular route motor transportation companies certificated to transport property.
It further discloses that the appellant in that case was an Ohio corporation not for profit, whose membership was composed of approximately ten per cent of the contract carriers by motor vehicle operating under permits issued by the Public Utilities Commission of Ohio; and that appellant did not hold any permit from the commission nor does it appear that it was an owner of any stock or interest in any permit holder and it did not claim to represent any specific permit holder.
In the opinion it is stated: "The record discloses no interest of any kind of appellant which is or could be affected by the commission's order."
From the statement of facts and the quoted portion of the opinion in that case it appears that the *Page 57 appellant was not an interested, necessary or proper party to the original proceeding and consequently could not be aggrieved in any way by the order made therein, thus the facts in that case differ from the facts in the two cases under consideration in which the defendant, appellant herein, E.T. Ford not only has a present interest in the subject matters of the litigation but is a necessary and proper party.
The defendant E.T. Ford being an interested, necessary and proper party to both cases, having a present interest in the subject matter of the litigations, our next inquiry must be directed to the question as to whether he was, as a matter of law, "aggrieved" by the judgments overruling his motions to vacate the judgments rendered in the causes.
"A party is aggrieved if he would have had the thing if the erroneous judgment had not been given. Or, as it is sometimes put, in a legal sense a party is aggrieved by a judgment or decree whenever it operates on his rights of property or bears directly upon his interest." 2 American Jurisprudence, 945, Section 152.
Whether the defendant E.T. Ford would be benefited pecuniarily by the relief that might be afforded him on his appeals is not a proper test for determining whether he was "aggrieved" by the judgments overruling his motions to vacate, but the true test is whether his legal rights were invaded by the orders overruling such motions.
Defendant E.T. Ford had the legal right, as a beneficiary under the will, to defend the action to set aside the will and, upon the failure of plaintiffs to procure proper service of process upon him, had the further legal right to move for the vacation of the judgment setting the will aside. He also had the legal right to defend the action to set aside the deed and, upon failure *Page 58 of plaintiffs to procure proper service of process upon him, had the further legal right to move for the vacation thereof. These legal rights were invaded by the orders of the court overruling his motions to vacate and he is, as a matter of law, aggrieved by the orders and consequently has the right to appeal therefrom.
For the reasons mentioned, we find that the Common Pleas Court did not err in its orders overruling the motions of the defendant Charles C. Ford to vacate the judgments in question, and the orders overruling the motions will therefore, insofar as the defendant Charles C. Ford is concerned, be affirmed at his costs; but we further find that the Common Pleas Court erred in its orders overruling the motions of the defendant E.T. Ford to vacate the judgments in each of the causes in that the orders are contrary to law, and for these errors the orders will be reversed, and this court, rendering the judgments the Common Pleas Court should have rendered, will enter final judgments vacating the orders in question in each case on the motion of the defendant E.T. Ford, at the costs of the appellees, and both such causes will be remanded for further proceedings according to law in accordance with this opinion.
Judgments accordingly.
HORNBECK, P.J., and GEIGER, J., concur.
ON APPLICATIONS for rehearing.