Summary
In Emerine v. Belpash, 23 Ohio App. 311 (Belpash v. Emerine, 119 Ohio St. 226), the plaintiff merely alleged generally that the prior action had failed otherwise than upon the merits.
Summary of this case from Desper v. LeiterOpinion
Decided November 1, 1926.
Gaming — Recovery by wife of husband's losses and penalty — Petition states cause of action against owners of property, when — Limitation of actions — Suit within year after first action dismissed, not barred, when — Parties — Defect not created by service on only part of defendants.
1. Petition alleging that defendants conducted gambling place in which plaintiff's husband expended money in gaming schemes, and that defendants owning property knew it was kept for gambling, states good cause of action to recover penalty and money lost by plaintiff's husband in gambling.
2. Petition and amended petition to recover money lost in gambling, filed within year after plaintiff failed in first action otherwise than on merits, is within saving clause of statute of limitations.
3. In action to recover money lost in gambling, which may be brought against any one or all of persons involved in transaction, service on only part of defendants does not create defect in parties defendant.
ERROR: Court of Appeals for Lucas county.
Messrs. Fritsche, Kruse Winchester, for plaintiff in error. Mr. D.J. O'Rourke and Messrs. Lawton Saalfield, for defendants in error.
This action was commenced by the plaintiff Edna Emerine, wife of Frank Emerine, to recover $2,675 alleged to have been lost by him in gambling, and a penalty of $500 for exemplary damages. Demurrers were sustained to the second amended petition, and that pleading was held insufficient and the action dismissed.
The defendants named in that pleading are Walter J. Belpash, Thomas C. Worland, Charles Crowell, Shambles Champagne, and the C.E.S. Realty Company. The pleading avers, substantially, that the first four defendants named were the keepers of a certain described place in the city of Toledo used for gaming purposes from February 1, 1922, to January 13, 1923, that they conducted and allowed gambling therein, that during said time plaintiff's husband expended and paid the sum of $2,675 therein on the schemes of gaming, and that the amount was paid to and received by said four named defendants.
The real estate on which the building is located is then described, and it is averred that the C.E.S. Realty Company, a corporation, is and was at the dates set out the owner of the premises and the lessor thereof to the four named defendants, and that said company knowingly permitted said place so kept by the other defendants to be used for gaming purposes for a long time prior to and at the time of the transactions set forth.
Plaintiff further avers that on February 21, 1923, she brought an action in the court of common pleas of Lucas county against all these defendants for the recovery of the amount stated, and that in said action she failed otherwise than upon the merits of her cause, and that on July 17, 1925, upon demurrer of Belpash and the realty company, said cause was dismissed. The second amended petition prays judgment for the amount against the first four defendants named, and asks that the judgment may be declared a lien upon the premises described.
The second amended petition, fairly construed, sets forth a good cause of action.
In order to escape the apparent bar of the statute of limitations the pleading contains an averment of plaintiff relative to the filing of an earlier petition in which she failed otherwise than upon the merits. The money is averred to have been lost at gaming between February 1, 1922, and January 13, 1923, and the first petition to recover therefor was filed by the plaintiff on February 21, 1923, which date would be within proper time for at least a portion of the period within which the money is averred to have been lost. By the averments of plaintiff's pleading, her former action failed otherwise than on the merits on July 17, 1925. The petition in the present case was filed on September 24, 1925, and the second amended petition was filed on April 15, 1926, both of which dates are within a year after the plaintiff failed in her first action otherwise than on the merits. The present action is therefore within the saving clause of the statute.
While the action out of which this proceeding in error grows was brought against all defendants and summons was issued against all of them, the defendants Charles Crowell and Shambles Champagne were not served with summons, for the reason, as shown by the return of the sheriff, that they could not be found in Lucas county. In this error proceeding the defendants named are Belpash, Worland, and the C.E.S. Realty Company, and it is insisted that the action should be dismissed because of a defect of parties defendant, reliance being placed on Columbia Graphophone Co. v. Slawson, 100 Ohio St. 473, 126 N.E. 890. That, however, was an action against the joint obligors upon a guaranty, and all of the signers were therefore necessary parties. The decision in that case is not applicable to the case at bar, which is an action to recover for money lost in unlawful transactions, in which suit might well be brought against any one or all of the persons involved in the transaction. Mead v. McGraw, 19 Ohio St. 55.
The judgment will be reversed and the cause remanded to the court of common pleas, with instructions to overrule the demurrers to the second amended petition and for further proceedings.
Judgment reversed and cause remanded.
WILLIAMS and YOUNG, JJ., concur.