Summary
In Juhasz v. Corson, supra, the plaintiffs within the two-year period sued William J. Corson, Jr., and William J. Corson, Sr. Service was made on both as adults.
Summary of this case from Byers v. DobiesOpinion
No. 36449
Decided July 13, 1960.
Limitation of actions — Tort action for personal injuries — Minor erroneously sued as adult — Cause dismissed after two-year period for want of service — Not failure otherwise than upon merits — Section 2305.19, Revised Code.
APPEAL from the Court of Appeals for Cuyahoga County.
On February 17, 1957, an automobile collision occurred in the city of Cleveland between a car driven by plaintiff Juhasz and one driven by defendant William J. Corson, Jr.
On June 11, 1957, Juhasz and the insurer of his automobile brought suit against William J. Corson, Jr., and William J. Corson, Sr., to recover for damages sustained as the result of the collision. Service was made on both defendants as adults.
On July 11, 1957, defendants filed a joint answer which is in effect a special denial of the allegations of the petition. The answer contains no statement concerning the minority of William J. Corson, Jr., which fact was unknown to plaintiffs at the time. The case was placed on the trial list but was continued by the parties at various times.
On February 17, 1959, the two-year statute of limitations had run against the claim. Thereafter plaintiffs' attorney was notified through the office of defendants' attorney of the minority of William J. Corson, Jr. Upon learning of such fact, plaintiffs filed an amended petition on April 16, 1959, upon which service was made on April 23, 1959, on William J. Corson, Jr., as a minor, and on William J. Corson, Sr., as father and guardian of such minor.
On April 28, 1959, defendants' attorney filed a "motion to quash summons and attempted summons and to dismiss amended petition." This motion was treated as a motion to dismiss and was sustained by the Cleveland Municipal Court.
From that order of dismissal, an appeal was taken to the Court of Appeals, which found that the saving provision of Section 2305.19, Revised Code, had no application and affirmed the judgment of the Municipal Court.
The allowance of a motion to certify the record brings the cause to this court for review.
Messrs. Merkel, Campbell, Dill Zetzer, for appellants.
Messrs. Moss Eckstein, for appellees.
The question presented is whether Section 2305.19, Revised Code, provides a one-year extension to the limitation period in which plaintiffs may bring their action. That section provides:
"In an action commenced, or attempted to be commenced, if in due time * * * the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of * * * failure has expired, the plaintiff * * * may commence a new action within one year after such date. * * *"
Section 2305.17, Revised Code, provides:
"An action is commenced * * * as to each defendant, at the date of the summons which is served on him * * *.
"* * * an attempt to commence an action is equivalent to its commencement, when the party diligently endeavors to procure a service, if such attempt is followed by service within 60 days."
A minor can be sued and served with process only in the manner prescribed by Section 2703.13, Revised Code, which provides as follows:
"When the defendant is a minor the service of summons must be upon him, and also upon his guardian or father or, if neither can be found, upon his mother, or the person having the care of such infant, or with whom he lives. The manner of service must be the same as in the case of adults, and shall be made on such persons in the order named in this section."
The defendant William J. Corson, Jr., a minor, was, within the two-year statutory period for bringing the action, sued and erroneously served as an adult, and William J. Corson, Sr., was joined as a codefendant but was not named as father or guardian of the minor. There was no valid or effective issuance or service of summons on a minor within the two-year period.
The statutory requirements were not complied with within the two-year period, and, since a minor cannot waive the statutory requirements, the answer filed by defendants cannot constitute a waiver of failure of service.
Judgment affirmed.
TAFT, MATTHIAS, HERBERT and PECK, JJ., concur.
WEYGANDT, C.J., ZIMMERMAN and BELL, JJ., dissent.