Opinion
No. 30463
Decided January 16, 1946.
Divorce — Jurisdiction of person of defendant — Entry of appearance without service of process, insufficient — Section 11979 et seq., General Code — Irregular personal service not quashed or sought to be quashe — Statutory safeguards preserved and jurisdiction acquired by entry of appearance.
Under Section 11979 et seq., General Code, an entry of appearance of itself does not give jurisdiction over the person of the defendant in a divorce case; but where in such a case personal service of process, though irregular, is neither quashed nor sought to be quashed and is followed by an entry of appearance by the filing of an answer or otherwise, the safeguards provided for in the statutes are preserved and the court acquires jurisdiction of the person of the defendant. ( Tucker v. Tucker, 143 Ohio St. 658, approved and followed.)
IN PROCEDENDO.
ON DEMURRER to petition.
On July 23, 1945, the relatrix, Katherine M. Engh, filed a petition in this court, seeking a writ of procedendo commanding the respondent, Charles W. Hoffman, judge of the Court of Common Pleas of Hamilton county, Ohio, Division of Domestic Relations, to proceed with the trial of the divorce action brought in that court by the relatrix against her husband, Leonard M. Engh.
The petition herein shows the following material facts:
The divorce action was begun on March 15, 1945, and summons was issued to the sheriff of Hamilton county, Ohio, but there was no service for the reason that the defendant was not found within the county. Thereupon a praecipe for an alias summons was filed, "directing the sheriff of Hamilton county to deputize the sheriff of San Francisco county, California, for the purpose of making personal service of summons on the defendant." Pursuant to such praecipe, personal service of the alias summons, together with a copy of the petition, was made in San Francisco county, California, on May 2, 1945, by the sheriff of that county through his deputy.
The defendant was in the military service of the United States at the time of his marriage to the relatrix herein and was still in such service when he filed his answer on May 22, 1945. The answer contains a recital that "this defendant voluntarily enters his appearance in this cause for all purposes and voluntarily waives the benefit and protection of any and all provisions of the United States Soldiers' and Sailors' Civil Relief Act of 1940 as amended."
The responded refused to proceed with the divorce action and caused an entry to be made therein which recited that the court "refuses to hear said evidence offered by the plaintiff and refuses to proceed to hear and determine said cause, for the reason that the court does not have jurisdiction to hear and determine said cause."
The respondent herein has filed a general demurrer to relatrix's petition and the cause has been submitted to this court for final determination on that demurrer.
Mr. Stewart S. Cooper, for relatrix.
Mr. Oliver G. Bailey, Mr. Bert H. Long, Mr. Grauman Marks and Mr. Paul W. Steer, for respondent.
Specifically stated, the question presented is:
Was the respondent, acting in his judicial capacity as a trial judge, justified in refusing to proceed with the divorce case on the ground that the court did not have jurisdiction to hear and determine the cause?
There can be no question that such tribunal was invested with jurisdiction of the subject matter, and no claim is made that the defendant in the divorce action was not legally bound by his waiver of his rights as a soldier; but the crux of the contention made by respondent's counsel is that Sections 11983 and 11985, General Code, which apply only to divorce cases, must be strictly complied with and an entry of appearance is of no avail to give jurisdiction of the person under any circumstances.
These sections read thus:
"Section 11983. When the defendant is a resident of this state, the clerk shall issue a summons directed to the sheriff of the county in which he or she resides or is found, which, together with a copy of the petition shall be served on him or her at least six weeks before the hearing of the cause."
"Section 11985. The cause may be heard and decided after the expiration of six weeks from the service of summons, or the first publication of notice."
The general rule in divorce cases is that service of process must be made in accordance with the statutes and that an entry of appearance without service is insufficient to bring in the party from whom the divorce is sought. The rationale of the rule is that the statutes applicable to divorce (Sections 11979 to 12003, inclusive, General Code) provide certain safeguards which must be given full recognition. Calvert v. Calvert, 130 Ohio St. 369, 199 N.E. 473. Yet where all the safeguards are present and operative in a given case, entry of appearance by the defendant is effectual to prevent dismissal for want of jurisdiction over his person; and when personal service, which though irregular is not quashed or sought to be quashed, is followed by entry of appearance, by filing an answer or by any other recognized step, all the safeguards are preserved. The irregular personal service gives notice and fixes the starting point of the six-week period as effectually as regular personal service; the entry of appearance during the time the irregular service remains unquashed brings the defendant into court; and there is no more danger of collusion than there would be if the service of process were regular in every respect. After all, collusion is a separate matter for determination in each case. Under the circumstances of the instant case there was a substantial compliance with all protective requirements. With the safeguards present, it cannot logically be said that there was no jurisdiction of the person. A contrary position would not be in accord with accepted principles of jurisprudence.
This elaboration of principles is but a detailed explanation of the pronouncement in the syllabus in Tucker v. Tucker, 143 Ohio St. 658, 56 N.E.2d 202. The syllabus in that case reads thus:
"In an action for divorce, the court acquires jurisdiction of the defendant where he, after personal service irregularly made on him which is not quashed or sought by him to be quashed, files an answer in which is incorporated an entry of appearance, a waiver of issuance and service of summons, and a denial of material averments of the petition."
This court is satisfied with that rule, which is in accord with the weight of authority. It does not follow from what was stated in that syllabus, however, that a denial of material averments of the petition is essential to give jurisdiction of the person of the defendant. The allusion to such a denial merely served to hold the pronouncement to the facts of that particular case. Although the answer in the divorce case involved herein does not deny any material fact alleged in the petition, the legal aspects of the instant case are not thereby altered.
The case of State, ex rel. Haun, v. Hoffman, Judge, 145 Ohio St. 31, 60 N.E.2d 657, is distinguishable by the fact that there was no service whatever in the divorce action involved in that case.
For the purposes of the general demurrer, the facts alleged in the petition herein must be taken to be true. Since the allegations of the petition herein show that the essential facts in the divorce action involved in the instant case are parallel with those in the Tucker case, supra, so far as the question of jurisdiction of the person is concerned, the general demurrer to the petition is overruled and, the respondent not desiring to plead further, the writ of procedendo is allowed and judgment rendered accordingly in favor of the relatrix.
Writ allowed.
WEYGANDT, C.J., MATTHIAS and HART, JJ., concur.