Opinion
No. 36374
Decided November 23, 1960.
Limitation of actions — Tort action for personal injuries — Minor erroneously sued as adult — Cause dismissed for want of service — Sections 2305.17 and 2305.19, Revised Code.
APPEAL from the Court of Appeals for Athens County.
This is an action to recover for personal injuries suffered by plaintiff as the result of a motor vehicle collision. One of the vehicles was being operated by defendant, a minor, at the time of the accident.
The accident occurred on August 1, 1956. The petition was filed on February 28, 1958. On March 1, 1958, summons was served on defendant as an adult. On August 1, 1958, the statutory two-year limitation for bringing such an action elapsed (Section 2305.10, Revised Code). Thereafter, on August 31, 1958, defendant became 21 years of age.
On November 15, 1958, the defendant, "not intending to enter his appearance herein except for the purpose of objecting to the jurisdiction of this court over his person," moved the court to quash the attempted service of summons for failure to comply with Section 2703.13, Revised Code, prescribing the method of making service upon minors. The motion was sustained and the suit was left pending.
On November 29, 1958, an amended petition was filed. On January 9, 1959, an alias summons was served on defendant. Defendant, "not intending to enter his appearance," moved to quash the service "on the ground that it is barred by the statute of limitations; said action not having been legally commenced within two years after the occurrence of the accident." The court treated the motion as a demurrer, sustained the same and dismissed the action and entered judgment accordingly.
The Court of Appeals affirmed the judgment of the trial court.
The allowance of a motion to certify the record brings the cause to this court for review.
Messrs. Jenkins, Williams, Wendt, Murray Deeg, for appellant.
Messrs. Rowland, Bridgewater Gray, for appellee.
Was the action commenced or attempted to be commenced within the period of two years following the accident, within the meaning of Section 2305.17, Revised Code?
A minor can be sued and served with process only in the manner prescribed by Section 2703.13, Revised Code. The purported service of March 1, 1958, and return were made when defendant was a minor and as though he were an adult. The statutory requirements were not complied with within the two-year period, and the motions above referred to filed by defendant cannot be construed as a waiver of the statutory requirements.
The judgment of the Court of Appeals is affirmed on authority of Juhasz v. Corson, Jr., ante, 218.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.