Plaintiffs in error commenced an action in the Court of Common Pleas of Hamilton county against A. Hunter Willis, and others, in which it was sought to vacate a judgment rendered in the Court of Common Pleas in favor of Willis, on the ground that he secured the judgment by fraudulent practices in various respects set forth in the petition. Service of summons upon Willis and another defendant was made by publication after an affidavit had been filed, stating that they were non-residents of Ohio. Motion was made to set aside and quash the service of summons made upon the non-residents, and, upon hearing had, the Court of Common Pleas granted the motion and quashed the service. This proceeding in error is prosecuted to secure a reversal of that judgment.
The defendants, who were served by publication, executed and filed a motion in which they recited that they were not entering their appearances except for *Page 561 the purpose of the motion, and asked the court to set aside and quash the alleged constructive service of summons by publication, and the proof of publication, stating as the reason therefor "that service by publication does not lie and is not authorized by law in this cause and proceeding, and the Court is without jurisdiction over their persons."
In the journal entry quashing the service of summons it is recited that the service is quashed for the reason that service by publication does not lie and is not authorized in the case.
The petition was apparently drawn under the provisions of law authorizing the setting aside of a judgment obtained by fraud.
Section 11292, General Code, provides in what kinds of action service of summons may be made by publication, and in paragraph 11 the section provides, among other things, that it may be so made in an action "to impeach a judgment or order for fraud." The succeeding Section 11293, General Code, reads 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 which was filed in this case to obtain service by publication complies fully and completely with the requirements of the above quoted section.
The trial court in quashing the service of summons manifestly gave critical examination to the language of the petition. It evidently concluded that the averments of the petition were not sufficient to constitute such a cause of action as would justify service of summons by publication. We think that on a motion to quash service of summons by publication in a case of this kind reference should be had only to the sufficiency *Page 562 of the affidavit for such service. The statutes provide simple and appropriate means for testing the sufficiency of a pleading by motion or demurrer, and it would be injecting a new element into the practice of the law if a defendant who denied the validity of the service upon him by publication could thus assail the sufficiency of the petition and at the same time not enter his appearance. If he should demur generally to the petition, it would of course enter his appearance, and he cannot be permitted to do indirectly what he is prohibited from doing directly.
In disposing of this case the court is not determining whether the petition does or does not state a cause of action; that can be determined later, in the manner provided by law.
In the judgment of this court the trial court was in error in quashing the service of summons. The judgment will therefore be reversed and the cause remanded for further proceedings.
Judgment reversed and cause remanded.
HAMILTON, P.J., concurs.