Summary
holding that, "Effective service of summons on the defendant is a necessary prerequisite to the commencement of a civil action."
Summary of this case from Blanton v. AlleyOpinion
No. 76-1027
Decided May 4, 1977.
Actions — Not timely commenced, when — Civ. R. 3(A), construed.
APPEAL from the Court of Appeals for Franklin County.
Plaintiff, Lash, filed a complaint in the Court of Common Pleas on August 8, 1972, against defendant Miller for damages arising out of an automobile accident which occurred on August 12, 1970, and against defendant Astley for damages arising out of an automobile accident which occurred on January 9, 1971.
Attempts were made to obtain service on defendant Astley by certified mail and by personal service. No other method was attempted. More than two years after the complaint was filed, defendant Astley was served, September 13, 1974.
Certified mail service was returned "unclaimed" or unserved. At various times, plaintiff requested personal service and residence service. On September 13, 1974, personal service was had on defendant Astley.
The issue of concealment is not before the court. The record does not show that Astley deliberately concealed himself from service of process by plaintiff.
Astley's motion to dismiss the action against him was overruled by the trial court.
Subsequently, Astley filed an answer raising the defenses of jurisdiction over his person, sufficiency of service of process, failure to timely commence the action against him, the statute of limitations, subrogation of the claim, and res judicata. Following a hearing, the court held that the action was not timely commenced as to defendant Astley and entered judgment in his favor.
Plaintiff appealed to the Court of Appeals, which reversed the judgment of the trial court and remanded the cause for further proceedings. Our allowance of defendant Astley's motion to certify the record brings the cause here for review.
Messrs. Bradley Farris and Mr. Philip R. Bradley, for appellee.
Messrs. Sebastian, Marsh Redmond and Mr. Arthur M. Sebastian, for appellant.
The judgment of the Court of Appeals is reversed.
Civ. R. 3(A) provides that "[a] civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing." (Emphasis added.)
The first paragraph of the syllabus in Mason v. Waters (1966), 6 Ohio St.2d 212, reads:
"Within the meaning of Section 2305.17, Revised Code [similar to Civ. R. 3(A)], as it read prior to amendment effective October 30, 1965, the filing of a petition and precipe for the issuance of summons does not constitute the commencement of an action or an attempt to commence an action equivalent to its commencement, where there has been no effective service of summons upon defendant within the time limit prescribed by that statute." (Emphasis added.)
This court stated further, at page 215, that:
"Section 2305.17, supra, provides that an action shall be deemed commenced at the date of the summons which is served on defendant. This contemplates an effective service of summons, which, in this case, was not obtained until September 26, 1963. Since there was no effective service prior to that date, no action was commenced, nor was there an attempt to commence an action equivalent to its commencement within the meaning of Section 2305.17, supra. Kossuth v. Bear, 161 Ohio St. 378." (Footnote omitted.)
The Court of Common Pleas was correct. The action herein was never commenced as to defendant Astley. Effective service of summons on the defendant is a necessary prerequisite to the commencement of a civil action. Civ. R. 3(A).
Accordingly, the judgment of the Court of Appeals is reversed and the judgment of the trial court in favor of Astley is reinstated.
Judgment reversed.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.