Nast v. Hurtig & Seamon, Inc. (25 Ohio App. 16, 1927)

Williams, J.

Nathan H. Nast and Max S. Leitner, as executors of the estate of Joseph Nast, deceased, brought an action in the court of common pleas of Lucas county against Hurtig & Seamon, Inc., upon a promissory note. The court bélow sustained a motion to quash the service of summons, and thereupon dismissed the petition and entered final judgment. This proceeding in error is brought to reverse that judgment; and the sole ground of error relied upon is that the court erred in sustaining the motion.

The amended return shows that service was made upon John Doe (real name unknown) as the managing agent of Hurtig & Seamon, Inc. The claim is made that the return is false, in that the person to whom the summons was delivered was not such managing agent. The affidavit of Harry H. Winter was offered in support of the motion. Much of this affidavit is in the present tense, and therefore does not cover the time of the alleged service, but it clearly appears that Hurtig & Seamon Theatrical Enterprises, a partnership, was putting on a show called “Lucky Sambo” at the new Empire Theatre in the city of Toledo, and that one Max Michaels was managing that show; that the deputy sheriff of Lucas county handed the summons to the affiant, with the request that it be delivered to the manager of the theatrical enterprise; that thereafter the affiant handed the summons in question to Max Michaels, on March 1, 1926, which is the same date as that on which the return shows the alleged service in question to have been made. It is therefore apparent that the John Doe to whom the summons was delivered was Harry H. Winters, who was not in any way connected with Hurtig & Seamon, Inc., but was secretary and one of the directors of the Toledo Theatrical Company, a corporation in charge of the New Empire Theatre. It is also clear that Max Michaels was not acting, at the time in question, as managing agent of Hurtig & Seamon, Inc., but represented the partnership above named. Notwithstanding the fact that the affidavit is inartistically drawn, in that it is inaccurate in not covering the time in question, it is sufficient to show clearly the falsity of the return, and, being wholly uncontradicted, establishes such falsity by clear and convincing evidence. To overcome the probative force of the return itself, clear and convincing evidence is required. Mayer v. Groves, 18 C. C., (N. S.), 38, 32 C. D., 580; Franklin Bank v. Williams, 1 N. P., (N. S.), 559, 14 O. D., (N. P.), 651.

It .is claimed, however, that the defendant below, Hurtig & Seamon, Inc., entered its appearance at the time the deposition of Harry J. Seamon was taken in New York City. The caption of the deposition shows that David C. Meyers appeared on behalf of the defendant, and at the conclusion of the deposition the following is found:

“By agreement of counsel for plaintiff and defendant, this hearing is adjourned until April 22, 1926, at 2 p. m. at the same place, with the understanding that at that time Mr. Julius Hurtig will be present, without subpoena.”

The witness Harry J. Seamon was examined by counsel for plaintiff in the court below, but at no time did Mr. Meyers interrogate the witness. The following, however, appears in the deposition:

“Q. Was the name of your company ever known as Hurtig & Seamon, Inc. ?

“Mr. Meyers: A! We will have to look that up. We do not know of any such name. The firm has been called Hurtig & Seamon Theatrical Enterprises. ’ ’

This deposition was taken before James H. Purdy, Jr., a notary public in and for the county of New York, state of New York, and before certifying and transmitting the deposition he addressed a letter to David C. Meyers, asking him whether he intended to produce Mr. Hurtig for examination. To this letter Mr. Meyers made reply, from which we quote as follows:

“We are informed by our representatives in ■Toledo that there is no such action pending, because no service was ever made upon any officer or representative of Hurtig & Seamon, Inc. As a matter of fact, no such service could be made, because that corporation has long since been dissolved, and there are no officers of the corporation anywhere.”

The action referred to was the action brought in the court below. This reply is attached to the deposition, and is dated May 12, 1926. The deposition was certified May 17, 1926, and it is obvious that the reply was written and received before the deposition was transmitted, or it could not have been attached thereto. The notary public who took the deposition therefore had information that Meyers did not represent Hurtig & Seamon, Inc., because it is apparent from the passage quoted from the letter that he did not and could not represent the corporation, because it had been dissolved. Under the circumstances we think that the notary public was not warranted in incorporating language in the depositon indicating that Mr. Meyers represented the defendant, or that the defendant had made an agreement of any kind at the time of taking the deposition. It follows that the appearance of the defendant was not entered at the time the deposition was taken.

The cause was remanded to the court below for such correction, if any, of the bill of exceptions, as the trial judge should see fit to make. Such correction was made and incorporated into a paper denominated “Amendment to the Bill of Exceptions.” This so-called amendment refers to the affidavit of Harry H. Winters, and undertakes to make it a part of tlie bill, but it is not attached. The corrections having been made after notice to, and with assent of, counsel, we have treated the affidavit as a part of the bill of exceptions and amendment thereto in arriving at our conclusions, and we order that it be attached thereto. Section 11572-a, General Code.

For the reasons indicated, there is no error apparent on the face of the record, and the judgment will be affirmed.

Judgment affirmed.

Culbert and Richards, JJ., concur.