Prior to the adoption of the Rules of Civil Procedure, appearances in court were classified as either special or general. A special appearance was one made solely for the purpose of objecting to the mode, manner, or absence of the acquisition of jurisdiction over the person of the defendant. In such an appearance, the defendant did not submit to the jurisdiction of the court. Conversely, a general appearance was a voluntary submission of the defendant to the jurisdiction of the court by some act on his part other than presenting an objection to the jurisdiction of the court over his person. This type of an appearance was construed to be a recognition that the case was properly before the court.
We no longer need to look to the facts in order to determine whether there has been a special or general appearance. Today we only have a general appearance under the Rules of Civil Procedure. To determine whether the trial court obtained personal jurisdiction over the defendant, pursuant to those rules, we need only address whether there has been a waiver of the jurisdictional defenses, rather than the type of appearance.
In order for a judgment to be rendered against a defendant when he is not served with process, there must be a showing upon the record that the defendant has voluntarily submitted himself to the court's jurisdiction or committed other acts which constitute a waiver of the jurisdictional defense.
A number of the Civil Rules must be reviewed in answering the question before us. We first refer to Civ. R. 3(A) which provides that an action is commenced when service has been effected upon the defendant within one year from the filing of the action. The philosophy of such rule is that court dockets should be cleared if service has not been attained within the reasonable time of one year.
An action may be dismissed when service of process has not been obtained after the passage of more than one year. Lash v.. Miller (1977), 50 Ohio St. 2d 63 [4 O.O.3d 155].
No action having been commenced, there is no obligation upon the defendant under the Civil Rules to move or otherwise plead within the year and the failure to do so would not have waived the right to the affirmative defense of lack of personal jurisdiction. Inaction upon the part of a defendant who is not served with process, even though he might be aware of the filing of the action, does not dispense with the necessity of service. Haley v.. Hanna (1915), 93 Ohio St. 49. The Civil Rules do not change this common law of Ohio.
MARYHEW ET AL., APPELLANTS, v. YOVA, APPELLEE 11 Ohio St. 3d 154; 464 N.E.2d 538; 1984 Ohio LEXIS 1124; 11 Ohio B. Rep. 471