where statute authorizes out-of-state service in person or by mail, out-of-state publication service insufficient to confer jurisdiction
How later courts described this case
- where statute authorizes out-of-state service in person or by mail, out-of-state publication service insufficient to confer jurisdiction
Written by the judges who cited it.
The opinion
Clifford F. Brown, J.,
dissenting. As I have oft stated in previous cases in which this court has addressed the issue of insufficiency of service, *319 the main objective of justice is “ ‘that cases should be decided on their merits,’ rather than upon procedural niceties and technicalities * * *.” See Perotti v. Ferguson (1983), 7 Ohio St. 3d 1 , concurring opinion at 4; Maritime Manufacturers, Inc. v. Hi-Skipper Marina (1982), 70 Ohio St. 2d 257, at 260 [ 24 O.O.3d 344 ]; Svoboda v. Brunswick (1983), 6 Ohio St. 3d 348, at 351 ; Baker v. McKnight (1983), 4 Ohio St. 3d 125, at 129 ; Hardesty v. Cabotage (1982), 1 Ohio St. 3d 114, at 117 ; see, also, Peterson v. Teodosio (1973), 34 Ohio St. 2d 161, at 175 [ 63 O.O.2d 262 ]. Because I firmly believe that Civ. R. 1(B) mandates 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,” I dissent. See, also, R.C. 1.11.
The decision reached by today’s majority reverses a judgment entered by a court which had present before it all parties involved in the litigation. Service of process is merely a means to effect the exact situation which exists in the present case, the giving of notice to all parties to an action of its pendency. This notice allows them to present evidence and witnesses so that the trier of facts may decide the case on its merits. This is the ultimate goal of every form of litigation, the resolution of the case based upon its merits. Courts should not allow procedural niceties to get in the way of such resolution.
I am further of the opinion that the trial court was correct when it ruled that the defendant had waived his Civ. R. 12(B)(5) motion for dismissal by failure to request a pretrial hearing pursuant to the mandate contained in Civ. R. 12(D), which states in part:
“The defenses specifically enumerated (1) to (7) in subdivision (B) of this rule, whether made in a pleading or by motion, * * * shall be heard and determined before trial on application of any party.” (Emphasis added.)
The language of this rule is mandatory. A party who desires to avail himself of the affirmative defenses outlined in Civ. R. 12(B)(1) to (7) must comply with the mandate of Civ. R. 12(D). Failure to request a pretrial hearing on a Civ. R. 12(B)(5) motion and then proceeding to trial on the merits of a case act as a waiver of the motion.
For the above-stated reasons I would affirm the judgment of the court of appeals.