Opinion
No. 32086
Decided December 13, 1950.
Judgments — Casualty insurance — Supplemental petition by judgment creditor against insurer to satisfy judgment — Section 9510-4, General Code — Insurer may defend on ground judgment void — Service of summons through Secretary of State — Section 6308-2, General Code — May show process not sent to judgment debtor's last known address — "Last known address" construed.
1. In an action on a supplemental petition pursuant to Section 9510-4, General Code, the insurance company may, as a defense, show that the judgment, which is the foundation of the judgment creditor's action, is void.
2. Where it appears that such judgment is based upon service made pursuant to Section 6308-2, General Code, and that the jurisdiction of the person of the judgment debtor was not otherwise obtained by the court, such judgment may be shown to be void by proving that the copy of process was not sent to such judgment debtor "at his last known address," even though such proof contradicts the record. (Paragraph one of the syllabus of Hendershot v. Ferkel, 144 Ohio St. 112, modified.)
3. Where a defendant has had a known business address at a time subsequent to leaving the last known residence address which he had, a copy of process sent to that residence address and not received by such defendant is not sent to the "last known address" of such defendant, within the meaning of Section 6308-2, General Code.
APPEAL from the Court of Appeals for Summit county.
This action in the Municipal Court of Akron was based on a supplemental petition filed pursuant to Section 9510-4, General Code, by Barbara Conner, herein referred to as plaintiff, against The Republic Mutual Insurance Company, herein referred to as the insurance company. Plaintiff had previously recovered a judgment against defendant Miller. The insurance company filed an answer alleging in part "that no summons upon the original petition herein was ever served upon * * * Miller and that this court never acquired jurisdiction of the person of * * * Miller."
The case was submitted to the Municipal Court upon an agreed statement of facts. The Municipal Court found "that no valid service of summons was obtained upon the defendant prior to the rendition of the judgment against the defendant * * * Miller * * *; that by reason thereof no valid judgment was rendered against the defendant * * * Miller." The Municipal Court thereupon dismissed the supplemental petition.
Upon appeal to the Court of Appeals for Summit county, that court reversed the judgment of the Municipal Court.
From the agreed statement of facts, it appears that plaintiff sustained personal injuries in a collision between an automobile in which she was a passenger and an automobile driven by defendant Miller who, at the time of the collision on February 7, 1942, resided at 391 Silver street, Akron, Ohio; that on or about December 1, 1942, defendant Miller moved from that address at the request of his landlord, he being then in arrears for payment of rent, and did not give his landlord any new or forwarding address; that defendant Miller was employed by the Jewel Tea Company's Akron office; that he "removed to Toledo, where he remained in the employ of the Jewel Tea Company" until sometime prior to January 18, 1943; that on January 18, 1943, plaintiff filed the original petition in this case; that summons was issued by the bailiff of the Municipal Court and returned, "no service"; that on January 23, 1943, plaintiff's husband, through the same attorney, filed a petition against defendant Miller in the Common Pleas Court, alleging a cause of action arising out of the same collision; that summons was issued in the husband's case for service upon the defendant Miller "care of Jewel Tea Company, Toledo, Ohio"; that the sheriff of Lucas county made a return upon that summons that he could not find the defendant in his county; that on January 31, 1944, plaintiff issued an alias summons in the instant case to the sheriff of Franklin county, which was served upon the Secretary of State, under Section 6308-2, General Code; that a copy of this summons, together with a copy of the return of service upon the Secretary of State by the sheriff of Franklin county, was mailed by the clerk of the Municipal Court by registered mail to the defendant Miller at 391 Silver street, Akron, Ohio, on February 9, 1944; and that, on February 15, 1944, that envelope and summons were returned to the clerk containing thereon the notation by the post-office department "Moved, left no address."
It appears undisputed that the whereabouts of defendant Miller are unknown either to plaintiff or to the insurance company.
Messrs. Walker, Alpeter, Reed Diefenbach, for appellee.
Mr. James Olds and Mr. H.A. Waltz, for appellant.
Provisions for a supplemental petition such as filed by plaintiff are made by Section 9510-4, General Code, which reads in part:
"Upon the recovery of a final judgment against any * * * person * * * by any person * * * for loss or damage on account of bodily injury * * * for loss or damage to a person on account of bodily injury to his wife * * * if the defendant in such action was insured against loss or damage at the time when the rights of action arose, the judgment creditor * * * shall be entitled to have the insurance money provided for in the contract of insurance between the insurance company and the defendant applied to the satisfaction of the judgment, and if the judgment is not satisfied within thirty days after the date when it is rendered, the judgment creditor * * * to reach and apply the insurance money to the satisfaction of the judgment, may file in the action in which said judgment was rendered, a supplemental petition wherein the insurer is made new party defendant in said action, and whereon service of summons upon the insurer shall be made and returned as in the commencement of an action at law. Thereafter the action shall proceed as to the insurer as in an original action at law."
Provisions for the kind of service of summons which plaintiff attempted to have made upon her petition against defendant Miller are found in Section 6308-2, General Code, which reads:
"Such process shall be served, by the officer to whom the same shall be directed or by the sheriff of Franklin county, who may be deputized for such purposes by the officer to whom the service is directed, upon the Secretary of State of the state of Ohio, by leaving at the office of said secretary, at least fifteen (15) days before the return day of such process, a true and attested copy thereof, and by sending to the defendant, by registered mail, postage prepaid, a like true and attested copy thereof, with an endorsement thereon of the service upon said Secretary of State, addressed to such defendant at his last known address. The registered mail return receipt of such defendant shall be attached to and made a part of the return of service of such process."
The insurance company contends that the judgment against defendant Miller was void by reason of the fact that the copy of process mailed to the defendant was not "addressed to such defendant at his last known address" within the meaning of the words as used in the statute.
It is the contention of plaintiff that, since this fact does not appear from the record of the court in that part of the case in which judgment was rendered against defendant and the invalidity of that judgment does not otherwise appear from the record, it cannot be successfully contended that the judgment is void. As plaintiff points out, the record in the instant case includes a finding by the trial court at the time the judgment was rendered against defendant Miller that defendant Miller had "been duly served with process according to law." Plaintiff argues that whether he had been so served involved questions of fact to be determined by the trial court, and that, therefore, after such judgment, no evidence or facts contradicting such a finding in the record may be considered in an attack on or attempt to impeach that judgment.
In support of this position, plaintiff relies upon the decision of this court in Hendershot v. Ferkel, 144 Ohio St. 112, 56 N.E.2d 205. The first paragraph of the syllabus in that case reads:
"In an action brought on a supplemental petition under Section 9510-4, General Code, by a judgment creditor against an insurance company, seeking to have the insurance money, provided for in the contract of insurance between the insurance company and the defendant, applied to the satisfaction of the judgment, the insurance company may as a defense show that the judgment which is the foundation of the creditor's action is void; but in the absence of fraud the invalidity of the judgment must appear from the record of the court in the case wherein the judgment was rendered and evidence contradicting such record is incompetent." (Emphasis added.)
On the other hand, the insurance company argues that the foregoing paragraph of the syllabus in the Hendershot case is in direct conflict with paragraph one of the syllabus in the subsequent case of Lenz v. Frank, Treas., 152 Ohio St. 153, 87 N.E.2d 578, which reads:
"When a decree in a tax foreclosure suit is based on residence service alone and a deed is executed pursuant thereto, the decree and the deed may be set aside in a subsequent action in which it is alleged and proved that the decree is void for want of jurisdiction over the defendant's person because the summons was left at a place not in fact the defendant's `usual place of residence.'" (Emphasis added.)
The writer of this opinion dissented from the judgment in the Lenz case. However, as pointed out in the dissenting opinion ( 152 Ohio St. 157), the judgment held void by the decision in the Lenz case did not impose any personal obligation on the defendant but dealt only with the title to and interests in real estate located within the jurisdiction of the court; and the holding that that judgment was void destroyed the rights of one who had subsequently purchased that real estate in good faith and in reasonable reliance on the record of the court rendering that judgment.
In Hayes v. Kentucky Joint Stock Land Bank of Lexington, 125 Ohio St. 359, 181 N.E. 542, paragraph one of the syllabus reads:
" Where a personal judgment is entered by default against a defendant upon a showing of service of summons upon such defendant by leaving an attested copy at the usual place of residence of such defendant, upon a petition being filed after term to vacate such judgment it is competent to contradict the record showing service and to prove that the place where the attested copy was left was not in fact defendant's `usual place of residence.'" (Emphasis added.)
In Kingsborough v. Tousley, 56 Ohio St. 450, 47 N.E. 541, paragraph one of the syllabus reads:
" In an action on a personal judgment, whether rendered by a court of this state or elsewhere, it is competent to plead and prove in defense, though it be in contradiction of the record, that the defendant was not served with process, nor jurisdiction of his person otherwise obtained by the court rendering the judgment." (Emphasis added.)
As to an action such as this in which the court seeks to impose a personal obligation on a defendant, the principles of law set forth in the foregoing paragraphs quoted from the syllabi in Hayes v. Kentucky Joint Stock Land Bank of Lexington, supra, Kingsborough v. Tousley, supra, and Lenz v. Frank, supra, appear to be clearly in conflict with so much of paragraph one of the syllabus in Hendershot v. Ferkel, supra, as appears after the semicolon.
Either through an innocent mistake or because of mere negligence in failing to learn the correct address of a defendant, a copy of process may be sent to such defendant at an address which he never had. Where jurisdiction of his person is necessary, as it is to justify rendition of a personal judgment against a defendant, can it be said that such defendant cannot offer evidence to show that he did not receive the copy of the process and that he never had the address to which it was sent?
We are of the opinion that, in an action brought on a supplemental petition pursuant to Section 9510-4, General Code, the insurance company may, as a defense, show that the judgment, which is the foundation of the judgment creditor's action, is void; and that, where it appears that such judgment is based upon service made pursuant to Section 6308-2, General Code, and that jurisdiction of the person of the judgment debtor was not otherwise obtained by the court, such judgment may be shown to be void by proving that the copy of process was not sent to such judgment debtor "at his last known address," even though such proof contradicts the record. We believe that a refusal to permit such proof because it did contradict the record would be to disregard the warning quoted with approval by Mr. Chief Justice Taft in Wuchter v. Pizzutti, 276 U.S. 13, 72 L. Ed., 446, 48 S. Ct., 259, 57 A.L.R., 1230, from McDonald v. Mabee, 243 U.S. 90, 91, 61 L. Ed., 608, 609, 37 S. Ct., 343, L.R.A. 1917 F., 458, that "in states bound together by a constitution and subject to the Fourteenth Amendment, great caution should be used not to let fiction deny the fair play that can be secured only by a pretty close adhesion to fact."
From the agreed statement of facts, it is clear that, after December 1, 1942, 391 Silver street, Akron, Ohio, was no longer the address of defendant Miller; that defendant Miller had "removed to Toledo"; that he was there in the employ of the Jewel Tea Company; and that, eight days before issuance of the alias summons, upon which the judgment in the instant case is based, plaintiff's attorney recognized that defendant Miller did have an address "care of Jewel Tea Company, Toledo, Ohio." If this was an address, within the meaning of Section 6308-2, General Code, then obviously 391 Silver street, Akron, Ohio, was not the "last known address" of defendant Miller at the time of issuance of the alias summons, upon which the judgment against defendant Miller was based.
Plaintiff, argues, however, that the words "last known address" should be construed so as to include only a residence address.
However, the statute specifies "address" not "residence" or "residence address." For substituted service within the state, Section 11286, General Code, specifies "residence." Having used the word "residence" in Section 11286, General Code, relative to substituted service, it is obvious that if the General Assembly had intended to limit the word "address" in Section 6308-2, General Code, as plaintiff contends, the General Assembly would have said so.
As stated on page 636 in the court's opinion in State, ex rel. Nelson, v. Grimm, Judge, 219 Wis. 630, 263 N.W. 583, 102 A.L.R., 220:
"The statute does not use the word `residence' but the word `address.' Residence is therefore immaterial. One may reside at one place and have his mail addressed to another, in which case the latter is his post-office address. Or he may receive and accept mail at his residence and at his place of business and each will be his post-office address. Or he may have mail addressed to him at the place of business of a third person, and that place will be his post-office address. Or he may adopt a place of business of a third person as his place of address by receiving and accepting mail addressed there."
In support of his contention that the words "last known address" should be construed so as to include only a residence address, plaintiff cites Schilling v. Odlebak, 177 Minn. 90, 224 N.W. 694; San Diego Savings Bank v. Goodsell, 137 Cal. 420, 426, 70 P. 299; Glenn v. Holub, 36 F. Supp., 941; and Gregory v. United States, 57 F. Supp., 962. We do not believe that any of those cases requires such a holding.
In Schilling v. Odlebak, supra, it is stated in the opinion:
"We construe the words `last known address' as meaning the last known residence or place of abode." While that statement tends to support plaintiff's position, the actual decision of the court reversed an order which had denied defendant's motion to set aside the service of summons. It would, therefore, appear that this remark of the court was obiter.
In San Diego Savings Bank v. Goodsell, supra, the statute provided for a mailing "directed to the person to be served, at his place of residence." The court's order provided for a mailing "directed to each of the said persons at their several places of residence," but the affidavit for substituted service stated that one of the defendants "resides out of the state * * *; her last known address being * * *." The court merely held "that where the plaintiff has by affidavit stated the `address' of the defendant out of the state, and the court has accepted this statement as evidence of the residence, it is sufficient compliance with the statute."
From a reading of the opinion in Glenn v. Holub, supra, it appears that the statutory language there involved was "last known residence or place of abode" and not, as in Ohio, "last known address." The court did refer to a statement from the opinion in Jones v. Paxton, 27 F.2d 364, 365, to the effect that "the words `last known address' are somewhat indefinite, but would seem to refer to the defendant's last known residence or place of abode," but observed that "this statement * * * was not made in deciding the question of what constituted `last known address,' but was thrown into an opinion wherein" another question was being discussed.
Gregory v. United States, supra, involved the question as to whether the United States was liable because of negligence of the Commissioner of Internal Revenue in not mailing a deficiency notice to plaintiff's "last known address" within the meaning of a section of the Revenue Act of 1928. It does not appear to cast much light upon the construction which should be given to the words "last known address" in a statute such as Section 6308-2, General Code.
The obvious purpose of providing, as Section 6308-2, General Code, does, for forwarding a copy of the process to the defendant "at his last known address" is to supply the requirements of due process recognized by the decision of Wuchter v. Pizzutti, supra, as necessary in order that there be a "reasonable probability that if the statutes are complied with, the defendant will receive actual notice." Where a defendant has had a business address at a time subsequent to leaving the last residence address which he had, it is certainly more probable that he will receive mail sent to such business address than it is that he will receive such mail sent to his former residence address.
Generally, courts have required very strict compliance with statutory requirements such as Section 6308-2, General Code, relative to mailing a copy of process to a defendant at his "last known address." Thus, in 5 American Jurisprudence, 831, Section 591, it is said:
"Under a statute requiring a copy of the summons and complaint to be mailed to the nonresident defendant to his last known address, the address is not necessarily the last address known to the plaintiff; he is required at his peril to ascertain the last known address of the defendant as a matter of fact. The term `last known address' means the last address so far as it is reasonably possible to ascertain it." See, also, annotations in 138 A.L.R., 1464; 125 A.L.R., 457; 96 A.L.R., 594; and 82 A.L.R., 768.
In its "finding" (see Harner v. Batdorf, 35 Ohio St. 113, and Sections 11607 and 11421-2, General Code) the Municipal Court stated in part:
"Such copy was mailed to the defendant Miller at his last known place of residence in the city of Akron, but it is apparent that he had a later address in the city of Toledo which address was known to the plaintiff. The court therefore cannot find that the statute was strictly complied with as required, and the court must therefore find that the judgment herein against the defendant Miller is not a valid judgment."
Our conclusion is that the Municipal Court was correct in finding that the copy of the process had not been sent to the "last known address" of defendant Miller, and that, therefore, the judgment against him was void. This makes it unnecessary to reconsider whether, as contended by appellant, the last sentence of Section 6308-2, General Code, by requiring the "return receipt of such defendant" as "a part of the return of service," discloses a legislative intention that the copy of process mailed to a defendant must be actually received by him.
The judgment of the Court of Appeals is reversed and that of the Municipal Court of Akron affirmed.
Judgment reversed.
WEYGANDT, C.J., HART, STEWART and FAUGHT, JJ., concur.
MATTHIAS and ZIMMERMAN, JJ., dissent.
In my opinion the decision of the majority is in direct conflict with the decision of this court in the case of Hendershot v. Ferkel, 144 Ohio St. 112, 56 N.E.2d 205, paragraph one of the syllabus of which is as follows:
"In an action brought on a supplemental petition under Section 9510-4, General Code, by a judgment creditor against an insurance company, seeking to have the insurance money, provided for in the contract of insurance between the insurance company and the defendant, applied to the satisfaction of the judgment, the insurance company may as a defense show that the judgment which is the foundation of the creditor's action is void; but in the absence of fraud the invalidity of the judgment must appear from the record of the court in the case wherein the judgment was rendered and evidence contradicting such record is incompetent."
The finding of a court that proper service has been had on a defendant should have some weight and presumption of validity. To allow the insurance company to appear in a supplemental proceeding and offer evidence to contradict the record of the court in which the original judgment was rendered obviously constitutes a collateral attack.
The fallacy of this procedure is well illustrated in this case. The agreed statement of facts, as submitted to the Municipal Court in the supplemental proceeding, is, in part, as follows:
"On or about December 1, 1942, the defendant, Fred Miller, moved from the address at 391 Silver street at the request of his landlord, he being then in arrears for payment of rent, and he did not give to his landlord any new or forwarding address. The defendant, Fred Miller, was employed by the Jewel Tea Company's Akron office. He removed to Toledo, where he remained in the employ of the Jewel Tea Company. His employment with the tea company was terminated some time prior to January 18, 1943. Neither the plaintiff nor the defendant insurance company was advised of the defendant Miller's removal from 391 Silver street or of his residence address thereafter, either in Akron or in Toledo, and he has not communicated with said insurance company, nor has said insurance company had any knowledge of his whereabouts since that time.
"On January 18, 1943, plaintiff filed the original petition herein. Summons was issued to the bailiff of this court and returned `no service.'
"On January 23, 1943, the plaintiff's husband, through his attorney, Howard C. Walker, filed a petition against Fred Miller in Common Pleas Court of Summit County, Ohio, being case No. 141569 in that court, alleging a cause of action arising out of the same collision. Summons was issued in said case to the sheriff of Lucas county, Ohio, for service upon the defendant, Fred Miller, `c/o Jewel Tea Company, Toledo, Ohio.' The sheriff of Lucas county made a return upon said summons that he could not find the defendant in his county.
"On January 31, 1944, the plaintiff issued an alias summons herein to the sheriff of Franklin county, Ohio, which was served upon the Secretary of State of Ohio under General Code 6308-2, the plaintiff being then unable to locate the defendant Miller at 391 Silver street, Akron, Ohio. The sheriff of Franklin county, Ohio, made a return showing service upon the Secretary of State, as provided by law, on February 3, 1944. A copy of the summons, together with a copy of the return of service upon the sheriff of Franklin county, Ohio, was mailed by registered mail to the defendant, Fred Miller, at 391 Silver street, Akron, Ohio, on February 9, 1944. On February 15, 1944, said envelope and summons were returned to the clerk of this court, containing thereon the notation by the post office `Moved, left no address.'"
The journal entry of the Municipal Court is, in full, as follows:
"This day this cause came on to be heard, upon the supplemental petition of the plaintiff, the answer thereto of The Republic Mutual Insurance Company, the agreed statement of facts heretofore filed herein, and the record.
"Upon consideration thereof, the court finds that no valid service of summons was obtained upon the defendant prior to the rendition of the judgment against the defendant, Fred Miller, set forth in said supplemental petition; that by reason thereof no valid judgment was rendered against the defendant, Fred Miller. The said supplemental petition against the defendant, The Republic Mutual Insurance Company, is therefore dismissed, at the costs of the plaintiff. To which the plaintiff excepts."
On the same stipulated facts the entry of the Court of Appeals is, in part, as follows:
"Upon consideration whereof, the court finds that in the record and proceedings aforesaid, there is error manifest upon the face of the record to the prejudice of the appellant, in this, to wit: The judgment of the trial court finding that the judgment obtained by Conner against Miller on March 25, 1946, in the Municipal Court of Akron in the sum of $950 and costs was void, and the judgment of the trial court in dismissing the petition of the plaintiff against the defendant, The Republic Mutual Insurance Company, on March 17, 1949, are contrary to law."
The opinion of the Court of Appeals discloses the basis of the judgment of that court as follows:
"There is nothing before us to show that Miller had moved to Toledo, except that his place of employment was moved to that city, out of which office of the Jewel Tea Company presumably he was working. We cannot say that a place of employment is the `last known address' of a defendant. It may or may not be a place where he wishes to be approached on a personal business matter. From a consideration of the facts set before us, we find that 391 Silver street, Akron, Ohio, was the last known address of Miller, to which registered mail under Section 6308-2, General Code, should have been, as it was, sent."
The judgment of this court reversing the judgment of the Court of Appeals is necessarily based upon the theory that as a matter of law the subsequent place of business of an employer is the last known address of an employee (the defendant) to the exclusion of the fact as to the last known residence of the defendant.
I agree with the Court of Appeals that the place of employment might be such address and certainly that is a question of fact to be determined from competent evidence. It must be established by proof that the defendant used such place as his address. If the rule were otherwise, any place where there is any possibility that mail might reach him would constitute his "last known address."
If the judgment of the Municipal Court in the original action had any validity by reason of its finding that service had been made, the burden in the supplemental proceeding of showing "no service" was on the appellant. The effect of the evidence has been considered by two lower courts. This court following its reasoning as to probabilities reverses the judgment of the Court of Appeals because its conclusion differs from the conclusion drawn by the Court of Appeals from the agreed statement of facts.
I am in accord with the unanimous opinion of the Court of Appeals. Its judgment should be affirmed.
ZIMMERMAN, J., concurs in the foregoing dissenting opinion.