Vance v. Davis (107 Ohio St. 577, 1923)

Wanamakeb, J.

There is one clear, controlling, and convincing fact in this case that should fully settle the'law, and that fact is obvious from the record.

In the Court of Appeals a motion was made by a portion of counsel for defendant in error to dismiss the proceedings in error begun by plaintiff below, upon the single, sole ground that the defendant in error had neither been summoned nor waived summons and entered appearance in the cause, and that therefore there was no jurisdiction had over his person within the statutory period.

What is the record pertinent here ?

“Court of Appeals, Gallia County, Ohio. Horace B. Vance, Plaintiff in Error, v. Walker D. Hines, Director General of Railroads, etc. (John Barton Payne, Director General of Railroads, as Agent Appointed by the President), Defendant in Error. Waiver of issuing and service of process and entry of appearance: The undersigned defendant in error hereby waives the issuance and service of summons in error in the above-entitled, cause and enters appearance herein. Walker D. Hines, Director General of Railroads, etc. (John Barton Payne, Director General of Railroads, as Agent, Appointed by the President), Defendant in Error, by Hollis C. Johnston, Attorneys for the Defendant in Error, and Attorneys of Record.”

Who was this Hollis C. Johnston, who signs himself “Attorneys for the Defendant in Error, and Attorneys of Record”? 1

It would seem unnecessary to make this inquiry, but in view of the fact that the Court of Appeals must have held that he did not represent the dofendant in the court of common pleas at the time of the trial of the cause, and the entering of judgment therein, strange as that is, the question must be answered from the record.

Hollis C. Johnston was one of the attorneys representing the defendant in the court of common pleas at the trial of the cause. He was the defendant’s local counsel from Gallia county; able, and in good standing at the bar. He had been such defendant’s counsel in the first trial of this cause in the court of common pleas; also on review in the Court of Appeals, and in this court when first heard. Likewise he had continued to represent the same defendant throughout the courts upon the second trial and review.

In such a situation,- what was the natural, courteous, and convenient thing for plaintiff’s counsel to do in obtaining service upon the defendant? Plaintiff’s counsel had presented the bill of exceptions to Hollis C. Johnston for examination and approval or correction, and had likewise also presented the petition in error to be filed in the Court of Appeals, which Hollis C. Johnston signed, as the record heretofore quoted sets forth. No claim is made that Hollis C. Johnston had been discharged by the defendant in error, or that for any reason he had severed his connection with the cause.

This case was one against the railroad, or against-the Director General of Railroads as the Agent of the government after the government assumed control. The first Director General mentioned was “Walker D. Hines,” subsequently it was “John Barton Payne,” and thereafter “James C. Davis”; but James C. Davis was never mentioned in the caption below, and there was no occasion for it. The record itself shows that James C. Davis had been substituted for his predecessor, a purely formal, red-tape proceeding. There were but two parties to this cause, the individual plaintiff, and the corporation defendant, and the same title or captiou was used by the plaintiff below throughout the courts.

We know of no rule of pleading or practice that requires it to be otherwise. For the purposes of the record, and convenience in indexing and referring to the same, such a policy is a wise and wholesome one. The record below having clearly shown the substitution of James C. Davis for the former agent, it was quite unnecessary to place the name in the caption or title of the cause.

It would be trifling with law and justice to hold that the title of a cause determined its character or nature, or alone determined who were the parties to the cause. The record of the court’s proceedings determines who the parties rightfully and legally are, and not the caption on the pleadings.

This whole question is one of statutory provision, wherein the language of the statute is exceeding plain.

Section 12259, General Code, so far as pertinent, reads:

“The proceedings to obtain such reversal, vacation, or modification shall be by petition in error, filed in a court having power to make the reversal, vacation or modification, setting forth the errors complained of.. Thereupon a summons shall issue and be served or publication made, as in the commencement of an action. A service on the attorney of record in the original case shall be sufficient.”

Section 12260, General Code, so far as pertinent, reads:

“The summons mentioned in the next preceding section, upon the written precipe of the plaintiff in error or his attorney, shall be issued by the clerk of the court in which the petition is filed to the sheriff of any county in which the defendant in error or his attorney of record is found. * * * The defendant in error, or his attorney, may waive in writing, the issue or service of the summons.”

If the foregoing record does not show not only a substantial compliance but likewise an exact and particular compliance with these two provisions of the statute, and especially the latter, we candidly admit that we do not understand elementary English. Suppose instead of proceeding under Section 32260, General Code, which provides that the defendant in error’s “attorney may waive in writing the issue or service of the summons,” the plaintiff in error had proceeded under Section 12259, and caused a summons to be served upon the same defendant in error (and there was only one defendant in error, and never was any more); how could fault be found with that service? Hollis C. Johnston, in the former passage of this cause through all the courts, common pleas, Court of Appeals, and Supreme Court, was one of the defendant’s attorneys of record* and had he been served with a summons instead of making a waiver and entering his appearance, would it now be claimed that such summons was not good? If the summons upon such attorney of record would have been good, is not his waiver of summons and his entry of appearance under the statute equally good?

Real regret is expressed both by the lawyers and laymen that we find so many cases in our law reports determined upon mere questions of practice rather than upon basic principles of the law that reach the merits of the cause in controversy. Obviously the law of procedure is remedial. It provides the legal ways and means of protecting one’s rights and defending oneself against another’s wrongs. It has therefore been laid down as a settled rule of law that all such remedial statutes and rules of law should be liberally construed in favor of the remedy provided by law. Now the remedy provided, not only by our Constitution, but from the earliest time by our Ohio jurisprudence, has been the right to review the judgments of the court of common pleas; whether those judgments are in favor of the plaintiff below or the defendant below, the right is essentially the same. The rules of law and the statutes incorporating them should be so applied as to carry out this primary remedial purpose.

In the face of this record, to allow the judgment below to stand without the right of review by the Court of Appeals would seem to permit the big United States government to escape through a mighty small hole of technical procedure, wholly unwarranted by the record. Such a feat would out-rival the proverbial camel’s passage through the eye of a needle.

The judgment of the Court of Appeals is therefore reversed, and the cause remanded to that court, with instructions to take jurisdiction and hear the cause upon the merits of the errors complained of, committed in the common pleas, and for such other and further proceedings as are required by law.

Judgment reversed.

Jones, Matthias and Allen, JJ., concur.