MECHANICS’ LIENS.

[Stark Circuit Court,

October Term, 1889.]

Albaugh, Follett and Beer, JJ. (Beer sitting in place of Jenner.)

#### CHESTER W. CHAPMAN v. BOLTON STEEL CO. ET AL.

Statement of Facts.

C., a resident of Stark county, was served with a 'summons in that county in an action brought by B. in Fairfield county upon a lien for material furnished, under sec. 3184, as amended, 84 O. L., 6, for the erection of a derrick to be used in boring for gas upon the premises of the Amanda Gas Co. The petition contained two causes of action, (1) upon an account for material furnished, and (2), for the foreclosure of a lien. A judgment was rendered upon the first cause of action only, and an execution issued thereon, and levied upon the real estate of C. in Stark county. The second cause of action in the petition did not aver that the material was furnished under a contract with the owner of the premises: Held,

1. Jurisdiction Not Acquired by Summons to Another County.

That said second cause of action was insufficient; that the facts alleged did not create a lien upon the premises of the Amanda Gas Co. in favor of B. for such material.

*5242. Omission to State Contract was with Owner is Fatal.

That the petition failing to state a cause of action for the foreclosure of a lien and sal< of real estate, under sec. 5022, the court did not acquire jurisdiction of the subject mat. ter of the action, nor of the person of C. by service of summons upon him in Star! county, and that the judgment rendered on the first cause of action was void.

Appeal from Court of Common Pleas of Stark county.

Albaugh, J.

This is an action brought by the plaintiff for the partition of certain real estate situated in this county. Jacob Balthaser was made a defendant upon his owr motion, and filed his answer, alleging that at the April term, 1888, of the cour of common pleas of Fairfield county, Ohio, he obtained a judgment against the plaintiff Chapman, and that on the 1st day of May an execution was issued thereon,and levied upon the interest of the said Chapman in the lands described in the petition; that he thereby obtained a lien thereon, and prayed that if said land; were sold, that his judgment should be satisfied from the proceeds of such sale.

The plaintiff Chapman replied to this answer, denying that there was any record of a judgment against him as claimed by Balthaser.

■Upon the trial of the case, the defendant Balthaser offered in evidence a transcript, duly certified, of the proceedings .in which he claimed his judgment in th« court of common pleas of Fairfield county. This was all the evidence offeree by either party in the case. From the transcript it appears, that on the 31st day of March, 1888, Balthaser filed his petition in said court, which contained twe causes of action. The first was upon an account for lumber and other materia furnished by him to Chapman for the erection and construction of a derrick to be used in drilling for natural gas; and in the second cause of action it was alleged that said material was used upon certain premises belonging to the Amanda Gas Co., and that an itemized statement had been duly filed with the recorder of saic county, and claiming a lien upon the premises therein described. A summons was issued and sent to the sheriff of Stark county, and served upon Chapman ir. that county, he being a resident thereof. Afterward, at the April term of the court a judgment was taken against him on default upon the first cause of action, nc decree for the foreclosure of the lien having been entered.

The validity of this judgment is the subject of controversy between the parties. The plaintiff claims that the court in which the judgment was rendered did nol have jurisdiction, and' that the judgment rendered in the case was void. If thaf court did have jurisdiction of the person and the subject matter of the action, if would be immaterial how erroneous the judgment might be, it could'not be questioned in this collateral proceeding; so that his claim must be confined tc the question whether the court did not have jurisdiction, and it might be observed here,tha1 if the court properly obtained jurisdiction of the subject matter of the action, it alsc obtained jurisdiction of the person of the plaintiff by the service of summons ir Stark county. Section 5038 provides, that when an action is rightly brought in any county according to the provisions of chapter 5 of that sub-division, a summons may be issued to any ether county for one or more of the defendants at the plaintiff's request — and sec. 5022 provides, that an action for the sale- of real prop: erty under a mortgage lien, encumbrance or charge must be brought in the count^ where the subject of the action is situated. Was this action then rightly brought in Fairfield county? Section 3184, as amended in 84 O. L., 6, provides, that a person who performs labor or furnishes machinery or material for * * * the digging, drilling or boring of any gas well, oil well, or any other well by virtue oi a contract with the owner, or his authorized agent, shall have a lien to secure the payment of the same upon such gas well * * * and the interest of the owner in the lot of land on which the same may be located * * *. Upon examination of the petition filed in that case it is very clear that the second cause of action therein stated is defective. It does not state the facts necessarv to con*525ititute a lien upon the premises therein described in favor of Balthaser, for the eason that there is no allegation that the material was furnished by him to Chap-nan under a contract with the owner of the premises, or his agent. This is a maerial and an essential averment, and a failure to make such allegation renders his cause of action wholly defective.

Housel *&*Webber, for plaintiff.

John C. Given and Brasee & Brasee, for defendant.

While it is well settled that a judgment rendered by a court of general jurisdiclion cannot be assailed in a collateral proceeding where the court has jurisdicion of the person and the subject matter of the action, it is equally well settled hat when it appears from the face of the record that the court did not have jurisiction of the person or subject matter, that such an irregularity can be inquired ‘nto, and in all such cases the judgment rendered is not only erroneous, but void, nd of no effect. In Sheldon’s Lessee v. Newton, 3 O. S., 494, 499, it is said that, hp power to hear and determine a cause is jurisdiction; and it is *coram judice,*whenever a case is presented which brings this power into action. But before this Dower can be affirmed to exist, it must be made to appear that the law has given airibunal capacity to entertain the complaint against the person or thing sought to re charged or affected; that such complaint has actually been preferred;' that :uch person or thing has been properly brought before the court to answer the harge therein contained; when these appear, the jurisdiction has attached, the, ight to hear and determine is perfect, and the decision of every question thereffter arising is but the exercise of the jurisdiction thus conferred; and whether etermined rightfully or wrongfully, correctly or erroneously, is alike immaterial :o the validity, force and effect of the final judgment when brought collaterally in uestion. .

It appears from the record in this case, that Chapman was-a resident of Stark ounty, and was served with summons in that county. He could not be required to appear and answer to the action brought against him in another county, unless that action-was rightly brought in that county; and if not so brought, the court ‘id not have jurisdiction of the subject matter of the action, and consequently id not have jurisdiction ol the person of the defendant Chapman. Whether the ction could be maintained in that county depends upon what facts are alleged in he petition. If upon the face of the petition it is apparent that it is not a case for he sale of real estate upon a lien under the section of the statute before referred to, hen jurisdiction could not be had of the person of Chapman by a service of summons upon him in Stark county. As before stated, the petition is defective upon ts face; a lien was not created, and did not exist unless the lumber and material [were furnished for the erection of a derrick under an agreement between Balthaser .nd the owner of the premises. There is no averment of that fact, and we assume :hat they were not so furnished; and if not, there was no lien, and consequently nothing upon which an action could be founded in that county. Whether or not [that court could entertain the case, depended upon whether a proper case was ade by. the petition therein filed. Finding as we do that there was no jurisdiction if the action in Fairfield county, the judgment rendered upon the first cause of ction was void, and the levy made under an execution issued thereon did not [operate as a lien upon the premises, sought to be partitioned in this action.