“Litigants must not be permitted to hold their arguments in reserve for appeal, thus evading the trial court process.”
How later courts described this case
- “Litigants must not be permitted to hold their arguments in reserve for appeal, thus evading the trial court process.”
- before the rule instructed the plaintiff to list the search efforts in the affidavit for publication
- “This court should be hesitant to decide [issues that were not raised or argued by the parties] for the reason that justice is far better served when it has the benefit of briefing, arguing, and lower court consideration before making a final determination.”
- before the rule instructed the plaintiff to list efforts in the affidavit for publication
Written by the judges who cited it.
The opinion
Weber, J.,
concurring in part and dissenting in part. I concur in that part of the judgment which holds that appellee has not exercised reasonable diligence in attempting to locate appellant so that service by publication would be authorized by law. I concur in the reversal of the court of appeals to that extent.
I dissent from that part of the judgment which permits the common pleas court judgment to remain undisturbed which orders that “the plaintiff take nothing and the action be dismissed for failure of service of process.”
The trial court, having found that process was insufficient or that service of process was insufficient, should order plaintiff to issue an alias service, not dismiss the action. However, should the trial court decide to dismiss the action, as in this case, the order should have been limited to the dismissal of the action for insufficient service of process or insufficient process. It should not have ordered that the plaintiff take nothing.
This court, and our judicial system, should encourage the determination of each case on the substantive law applicable, rather than by rigidly applying procedural rules. Justice demands that a court reach the merits of a case rather than allow its resolution on a technical procedural question.
This position is in accord with Civ. R. 41 (B)(4) which reads: “Failure other than on the merits. A dismissal (a) for lack of jurisdiction over the person or the subject matter, or (b) for failure to join a party under Rule 19 or Rule 19.1 shall operate as a failure otherwise than on the merits. ” (Emphasis added.)
The insufficiency of service of process, as in the present case, involves a question of “jurisdiction over the person” under Civ. R. 41 (B)(4) and should not result in a dismissal of the action with finality.
If the order had simply read, “It is ordered and adjudged that the action be dismissed for insufficiency of service of process,” Civ. R. 41 (BX4) would protect the rights of the parties to be heard on the merits. The reversal of the court of appeals, which results in the reinstatement of the judgment of the trial court, would not then preclude a trial on the merits in a new case which at least arguably may now be prevented under the theory of res judicata.
It is therefore my view that the judgment of the court of appeals holding that process was sufficient should be reversed, and the cause remanded to the trial court to permit alias service of process and for further proceedings.
C. Brown, J., concurs only in the dissenting portion of the foregoing opinion.