Opinion, per JOHNSON, J.

abuses, and say: "The harm to be apprehended is far greater when there is a common ownership."

In Bedford-Bowling Green Stone Co. v. Oman et al., 115 Ky., 369, the railroad company had a contract by which it operated over a switch owned by one of the parties, and the court say at page 379: "So far as this record shows, it exercises the same control and dominion over this line that it does over any other part of its system; and we think, by the terms of the contract in question, the switch, during the continuance of the contract in question, at least, becomes a part of the general system of the Louisville & Nashville Railroad Company. This being so, it can not lawfully refuse to receive and transport freight belonging to appellees to and from such reasonable points along the line at which they may lawfully ship or receive it. * * * ‘And they have no right to contract with a corporation or individual to give exclusive rights to transfer any commodity over any part of their line. * * * By accepting its charter the railroad company assumed obligations to the public.'"

Again assuming, for the purposes of this case, that the coal company owns the portion of the railroad claimed by it, and that the coal company itself made up the deficiency in the cost of operating the railroad, still the railway company has no right to make the discrimination found by the commission to be made. It is not a question as to the right of the railway company to take and use the lands or property of the coal company without consent and without compensation. It is a question as to the right of a corporation, having all the rights and

Opinion, per JOHNSON, J.

subject to all of the duties and obligations of a common carrier, to operate its own line for the exclusive benefit of the coal company, and to use the coal company's line over the coal company's property with its consent to transport its coal to and over the railway company's line, all to the exclusion of the general public or those who have the right to equal shipping privileges.

We therefore hold that as long as the railway company operates any portion of the railroad in question, it must do so without discrimination in favor of any shipper.

This is a small and unimportant railroad, whose operations are very limited, but the questions that are brought to the court for consideration are not limited. They affect every common carrier. If this company may arbitrarily select those whom it will serve, any company may do so.

The order of the commission will be modified so as to be effective over the line claimed by the coal company during such period as it is used by the railway company for the transportation of freight, and as so modified will be affirmed.

Order affirmed.

NICHOLS, C. J., WANAMAKER, NEWMAN, JONES, MATTHIAS and DONAHUE, JJ., concur.

Statement of the Case.

MOOR ET AL. v. PARSONS ET AL.

Judgments - Proceedings to open-Section 11632, General Code -Service by publication - Foreclosure - Bona fide purchasers unaffected, when ·Section 11633, General Code Claim of actual residence by defendant — Real property.

1. The right granted under the provisions of Section 11632, General Code, to a party against whom a judgment or order has been rendered without service other than by publication in a newspaper, within five years after the date of the judgment, to have it opened and be let in to defend, is limited by the provisions of Section 11633, General Code, that the title to property which is the subject of the judgment or order sought to be opened, and which, by or in consequence of the judgment or order, has passed to a purchaser in good faith, shall not be affected by proceedings under the former section. 2. Where, in an action to foreclose a mortgage the record whereof shows the proceeding valid and regular in all respects, a defendant was served by publication in complete conformity with the provisions of the statute applicable thereto, and the court found said defendant duly and legally served and in default, and, after finding the amount due on the mortgage claim, ordered said premises sold, and they were sold to a purchaser in good faith, the title so obtained will not be affected by an application of said defendant under favor of Section 11632, General Code. In that proceeding he cannot as against such purchaser assert the claim that he was in fact a resident of the state and by the exercise of due diligence could have been served with summons.

(No. 15520― Decided May 14, 1918.)

ERROR to the Court of Appeals of Lucas county.

This action was filed in the common pleas court of Lucas county November 25, 1911, by Tammie Blood to foreclose a mortgage on certain real estate located in that county. The mortgage had been executed by Margaret Parsons who was deceased, and her sons, James P. Parsons, John W. Parsons

Statement of the Case.

and Lewis H. Parsons, having inherited the property, were made parties defendant in the said action, as were also certain holders of tax liens. Personal service was had upon John W. Parsons and Lewis H. Parsons, and was attempted to be secured upon James P. Parsons along with certain other defendants, summons for whom was returned by the sheriff indorsed with the statement that they "could not be found within Lucas county, Ohio." Thereupon an affidavit in the form required by statute for the purpose of procuring constructive service was filed, which affidavit stated that the place of residence of James P. Parsons was unknown and could not with reasonable diligence be ascertained. Upon motion the court ordered that service by publication be made as provided by law. On January 22, 1912, the court found that the publication and proof were in all respects regular and according to law, and approved the same; that the defendants had been duly served with process; and that certain of the defendants, including James P. Parsons, were in default. It also found the amount due on the mortgage of plaintiff and upon the tax liens asserted in said action.

The premises were ordered sold, and one parcel thereof was purchased by Fred O. Peak and the other by William H. Moor and Edmond Collins. The court found the sale had been in all respects regular and confirmed the same and ordered deeds. to the purchasers.

From the proceeds of the sale the costs and the amount due on plaintiff's mortgage and the several tax liens were ordered paid, and one-third of the

Statement of the Case.

remainder was paid to John W. Parsons, one-third to Lewis H. Parsons, and the remaining one-third was held for the defendant James P. Parsons.

On November 13, 1914, James P. Parsons filed a motion in said suit setting up that he was the owner of the undivided one-third of said premises and also held a mortgage on the same, and asked that the decree theretofore entered be vacated and that he be permitted to defend against the claims. of the plaintiff and the cross-petitioners and also to prosecute his rights under the mortgage owned by him. The court of common pleas granted the motion with the condition that such order should not affect the title to any property which had passed to the purchasers in good faith by or in consequence of the former judgment and order of the court.

James P. Parsons filed an answer and crosspetition setting up his claim, and also filed another cross-petition against William H. Moor, Fred O. Peak and Edmond Collins, the purchasers at the judicial sale, and they were served with summons as defendants in the case. He therein prayed that the sale of the property to them should be held for naught. The newly-made parties defendant demurred to the cross-petition, and the demurrer was sustained by the court of common pleas, and judg ment rendered in favor of the plaintiff and the other defendants.

Upon appeal the court of appeals overruled the demurrer to the cross-petition and, thereafter, upon hearing, said court found that service upon James P. Parsons was not valid and that the judgment against him was void, and ordered the same to be