Opinion
No. 33661
Decided May 5, 1954.
Limitation of actions — Tort action for bodily injuries — Summons issued within two-year period — Petition dismissed after two-year period for want of service — Not failure "otherwise than upon the merits" — Section 11233, General Code — Filing of petition and praecipe for summons — Not "attempt to commence an action" — Section 11231, General Code.
1. Where a petition to recover damages for personal injuries received in an automobile accident is filed within two years from the date when the alleged injuries were received and summons is issued for the defendant but service of the summons is never obtained, and, after the expiration of two years from the date of the accrual of the cause of action, the court orders the petition to be "dismissed" for the reason that there had been no service of summons, the plaintiff can not be considered as having failed "otherwise than upon the merits" in an action commenced or attempted to be commenced so as to authorize the plaintiff to commence an action within one year after the date of such "dismissal," under Section 11233, General Code (Section 2305.19, Revised Code).
2. Under the provisions of Section 11231, General Code (Section 2305.17, Revised Code), the filing of a petition and praecipe for summons upon the defendant does not constitute "an attempt to commence an action," which "shall be deemed to be equivalent to its commencement," where such attempt to procure service of summons is not followed by service at any time.
APPEAL from the Court of Appeals for Cuyahoga county.
On May 30, 1948, an automobile driven by the defendant and an automobile occupied by the plaintiff collided on Lake road in Lorain county, Ohio. At that time the defendant resided with his father in Avon Lake, Lorain county, and was attending Fenn College in Cleveland in Cuyahoga county. In September 1948, the defendant transferred from Fenn College to Dyke and Spencerian College in Cleveland but continued to reside with his father in Avon Lake, Lorain county.
On August 20, 1949, the defendant was married to a young woman who lived in and was employed in Cleveland. The defendant and his wife then took up residence in Cleveland, Cuyahoga county, at 1417 East 85th street. Some time later they moved to 1851 East 82nd street and continued to reside in Cleveland at one or the other of those addresses until the summer of 1950 when they removed to California. On April 4, 1949, the plaintiff filed a petition in the Common Pleas Court of Cuyahoga County. Summons was issued but not served, being returned, "defendant not found in my county." On May 29, 1950, alias summons was issued for the defendant in Cuyahoga county but was returned, "not found in my county." On May 29, 1950, the plaintiff filed, in Lorain county, another petition against the defendant, setting forth the same allegations as were contained in the Cuyahoga county petition. Summons was issued for the defendant on the Lorain county petition, but service was not had for the reason that the defendant could not be found in the county.
After completion of his course in Dyke and Spencerian College, the defendant and his wife removed permanently to California, and the evidence indicates that such removal was effected in early September 1950, although the plaintiff claims that there is some evidence that the removal to California was on or about July 1, 1950. In any event, the removal to California was more than two years after May 30, 1948, which was the date of the accident.
On September 9, 1950, the Lorain county petition upon the court's own initiative was "dismissed without prejudice at plaintiff's cost," for the reason that there had been no service of summons in that case upon the defendant. After the "dismissal" of the Lorain county petition on November 1, 1950, an amended petition and praecipe for summons were filed in the proceeding which the plaintiff had undertaken to start in Cuyahoga county. Service of summons upon that amended petition was undertaken by sending notice to the defendant at his last known Cleveland address and by service through the office of the Secretary of State as upon a nonresident. Motion of the defendant to quash that attempted service was overruled and the defendant answered, pleading the statute of limitations as a bar to the action. Upon trial in Cuyahoga county, the court refused to sustain the defense based upon the statute of limitations, and judgment for the plaintiff resulted.
Upon appeal to the Court of Appeals, the judgment was affirmed.
The cause is in this court upon the allowance of a motion to certify the record.
Messrs. Harrison, Spangenberg Hull and Mr. Oliver W. Hasenflue, for appellee.
Mr. Wm. M. Byrnes, Mr. Wm. A. Kane and Mr. Frank J. Kus, for appellant.
The sole question raised in this court is whether this cause of action is barred by the two-year statute of limitations. The plaintiff urges that even though service was not had upon the defendant within two years from May 30, 1948, the cause of action was not barred for one or more of three reasons.
The first reason urged is that the defendant was absent from the state of Ohio for certain periods during the two-year period following May 30, 1948, during which periods of absence the statute was tolled. Upon that issue the Court of Appeals found against the plaintiff and with that conclusion this court agrees. There was no evidence of absence of the defendant from the state of Ohio such as would toll the statute.
The second reason urged by the plaintiff is that the defendant concealed himself so that service of summons could not be made upon him. Upon that issue also the Court of Appeals found against the plaintiff. Upon a thorough study of the entire transcript by this court, we find no evidence of such concealment and we agree also with the conclusion of the Court of Appeals upon that issue.
The third reason urged by the plaintiff to escape the bar of the statute of limitations is that on the petition which was filed in Lorain county, the plaintiff failed otherwise than upon the merits inasmuch as that petition was dismissed by the court on September 9, 1950, on its own initiative, for want of service, and that consequently under the provisions of Section 11233, General Code (Section 2305.19, Revised Code), the plaintiff had the right to commence an action within one year after that date. The Court of Appeals upon that issue sustained the plaintiff and held that under the circumstances above outlined the plaintiff had the right to commence an action within one year after September 9, 1950; that the filing of an amended petition in Cuyahoga county on November 1, 1950, constituted such commencement of a new action; that service through the Secretary of State in accordance with the Ohio statutes upon the then nonresident defendant constituted valid service; and that the Common Pleas Court of Cuyahoga County had jurisdiction to try the case and render judgment therein.
Section 11233, General Code (Section 2305.19, Revised Code), so far as pertinent, reads as follows:
"In an action commenced, or attempted to be commenced, if in due time a judgment for the plaintiff be reversed, or if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff * * * may commence a new action within one year after such date * * *."
Three other sections of the Code require some attention.
Section 11230, General Code (Section 2305.17, Revised Code), provides:
"An action shall be deemed to be commenced within the meaning of this chapter, as to each defendant, at the date of the summons which is served on him * * *." (Emphasis supplied.)
Section 11231, General Code (Section 2305.17, Revised Code), provides:
"Within the meaning of this chapter, an attempt to commence an action shall be deemed to be equivalent to its commencement, when the party diligently endeavors to procure a service, if such attempt be followed by service within sixty days." (Emphasis supplied.)
Section 11279, General Code (Section 2703.01, Revised Code), provides:
"A civil action must be commenced by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued thereon."
Although not of controlling importance in the case, it is also to be noted that under the provisions of Section 11286, General Code (Section 2703.08, Revised Code), service of summons upon the defendant is authorized, "by leaving a copy at his usual place of residence." This comment is made merely to indicate that residence service could have been made upon the defendant at any time while he resided in Cuyahoga county and to negative any theory that personal service was required.
Although under Section 11279 an action must be commenced by the filing of a petition and causing a summons to be issued thereon, the effectiveness of such filing in order that the action may be deemed commenced is governed by Section 11230. That section provides in clear language that the action shall be deemed to be commenced only at the date of the summons which is served on the defendant. As to the petition which was filed in Lorain county on May 29, 1950 (one day before the expiration of two years from the date of the accident), there was no service of summons. Therefore, it cannot be said that an action was ever deemed to be commenced in Lorain county. In other words, notwithstanding the filing of the petition and the issuance of summons, no case ever matured in Lorain county to the point where the court had any jurisdiction over the defendant or had any power to make any order based upon the allegations of the petition so filed. There was no pending case to be "dismissed." Although on the Lorain county court docket there appears the words, "dismissed without prejudice," what that court did was merely to strike the petition from the files. It is common knowledge that after service of summons and even after the filing of an answer a case may be "dismissed" for want of prosecution. Such would be a genuine dismissal because such case would be pending and the court would have jurisdiction over it. It seems axiomatic that a nonexistent case can not be dismissed. In the present instance, for lack of service, no case came into existence in Lorain county. Therefore, as to the petition filed in Lorain county we hold that the plaintiff did not fail "otherwise than upon the merits." The plaintiff simply never had a pending case in Lorain county.
It is urged, however, that under the provisions of Section 11231 the plaintiff is entitled to claim the equivalent of commencement of the action because the plaintiff made an attempt to commence an action. Such contention ignores the limiting provision of that section which is that the attempt to commence an action is equivalent to its commencement only if the party diligently endeavors to procure service and "if such attempt be followed by service within sixty days." We again repeat that no service was procured as to that petition within sixty days or at any other time.
Such being the case, it is manifest that the filing of the amended petition in Cuyahoga county in November of 1950 or even the filing of a new petition at that time, had such been done, was not authorized by either Section 11231 or Section 11233. The statute of limitations had run at the end of two years from May 30, 1948, and there were no circumstances which extended that time for filing the petition. It follows that the answer of the defendant to the petition which pleaded the statute of limitations set up a valid defense. The evidence adduced supported the allegations of the answer, and the motion of the defendant for a directed verdict in his favor made at the close of plaintiff's evidence and again at the close of all the evidence should have been sustained.
The judgment of the Court of Appeals is reversed and final judgment is rendered for the defendant.
Judgment reversed.
WEYGANDT, C.J., TAFT, HART, ZIMMERMAN, STEWART and LAMNECK, JJ., concur.