after setting forth the plaintiff’s burden to show reasonable diligence had been exercised prior to service by publication
How later courts described this case
- after setting forth the plaintiff’s burden to show reasonable diligence had been exercised prior to service by publication
- “Concealment of a defendant, as that term is used in R.C. 2703.14(L), may reasonably be inferred from plaintiff’s inability to locate that defendant after the exercise of reasonable diligence, as that term is used in Civ. R. 4.4(A).”
- while setting forth the plaintiff’s burden to show reasonable diligence was exercised prior to service by publication
Written by the judges who cited it.
The opinion
Clifford F. Brown, J.,
concurring. The flawless analysis by Justice William B. Brown of Civ. R. 4.4(A) and R.C. 2703.14(L) creates a legal precedent constituting the quintessence of justice in this case and will cause just results to be reached in many future cases with the same or similar issues. The precedent we establish today is a clarion judicial call that this court will fulfill the main objective of justice “ ‘that cases should be decided on their merits,’ rather than upon procedural niceties and technicalities,” a fundamental tenet of justice espoused in many recent cases, as in Perotti v. Ferguson (1983), 7 Ohio St. 3d 1 , concurring opinion at pages 3 and 4; Maritime Manufacturers, Inc. v. Hi-Skipper Marina (1982), 70 Ohio St. 2d 257, at 260 [ 24 O.O.3d 344 ]; DeHart v. Aetna Life Ins. Co. (1982), 69 Ohio St. 2d 189, 192 [ 23 O.O.3d 210 ]; Svoboda v. Brunswick (1983), 6 Ohio St. 3d 348, 351 ; Baker v. McKnight (1983), 4 Ohio St. 3d 125, 129 ; Hardesty v. Cabotage (1982), 1 Ohio St. 3d 114, 117 ; and Peterson v. Teodosio (1973), 34 Ohio St. 2d 161, 175 [ 63 O.O.2d 262 ], This basic theme of justice fulfills the Civ. R. 1(B) mandate that “[t]hese rules shall be construed and applied to effect just results by eliminating delay * * * and all other impediments to the. expeditious administration of justice.” See, also, R.C. 1.11.
Unfortunately, this court on rare occasions has retreated from this basic tenet or theme and for hypertechnical reasons has caused claims to be dismissed, as in Sizemore v. Smith (1983), 6 Ohio St. 3d 330 , or default judgment affirmed, as in Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St. 3d 64 . For other misapplications of procedural rules, see Elsnau v. Weigel (1983), 5 Ohio St. 3d 77 and Calderon v. Sharkey (1982), 70 Ohio St. 2d 218 [ 24 O.O.3d 322 ],