Opinion
No. 34465
Decided February 15, 1956.
Summons — Improperly served on minor — Defect cured by voluntary appearance after attaining majority — Appearance after action barred by statute of limitation — Defendant deemed to have waived defense of statute, when.
1. A defendant, improperly served with summons while a minor, may, after attaining his majority, cure such defect in service by voluntarily entering his appearance.
2. Where such voluntary appearance occurs after the action is barred by the statute of limitations, and the issue is not raised by demurrer or answer, the defendant will be deemed to have waived the defense of the statute.
APPEAL from the Court of Appeals for Cuyahoga County
The parties herein will be referred to in the capacities in which they appeared in the trial court.
On March 16, 1952, plaintiff was injured when the automobile in which she was a passenger was struck by an automobile driven by the defendant. On May 21, 1952, plaintiff filed a petition in the Common Pleas Court of Cuyahoga County charging defendant with negligence in the operation of his automobile, and that the negligent operation was the cause of injuries for which she seeks damages. On the same day, a praecipe for service of summons was filed and summons was issued. On May 26, 1952, the summons was returned with an endorsement showing that on May 23 residence service was made on defendant.
Although at the time of service of summons defendant was a married man, regularly employed and living with his wife and child in his own home, he was a minor 20 years and eight months of age.
On June 20, 1952, and on July 10, 1952, defendant sought and was granted extensions of time within which to move or plead, and on July 24, 1952, he filed an answer in the form of a general denial. Two months after filing his answer, on September 24, 1952, defendant attained his majority.
One and one-half years later, on March 19, 1954, defendant filed the following motion: "Now comes the defendant through his attorney and respectfully requests the court to order that the above-entitled action be continued for thirty (30) days from this the 19th day of March, 1954, to April 19, 1954, for the reasons stated in the accompanying affidavit." The accompanying affidavit recites the necessity of taking a deposition.
On March 31, 1954, defendant "not intending to enter his appearance herein except for the purpose of objecting to the jurisdiction of this court" moved to dismiss the action upon the grounds that the court had no jurisdiction over the defendant for the reason that service was not made as required by law, and that the cause of action, having accrued on March 16, 1952, was barred by the statute of limitations.
This motion to dismiss was overruled by the trial court, and the case proceeded to trial on the petition, the answer and the evidence. A jury returned a general verdict in favor of the plaintiff for $4,000. A motion for new trial was overruled and an appeal perfected to the Court of Appeals for Cuyahoga County.
The Court of Appeals reversed the judgment of the Court of Common Pleas, holding that the trial court erred in overruling defendant's motion to dismiss because the statute of limitations had run before service was had upon the defendant.
The cause is before this court upon the allowance of plaintiff's motion to certify the record.
Mr. Arnold M. Edelman, for appellant.
Mr. James R. Ugan and Mr. Robert G. Quandt, for appellee.
It is conceded that service of summons on the defendant was ineffective to give the court jurisdiction over his person, because service was made on the minor defendant alone rather than upon him and his guardian, father, mother or person having the care of him or with whom he lived, as required by Section 11291, General Code (Section 2703.13, Revised Code).
Had defendant not been a minor, his voluntary entry of appearance in seeking extensions of time within which to plead ( Brundage v. Biggs, 25 Ohio St. 652) and his filing of an answer ( Harrington v. Heath, 15 Ohio, 483; Schaeffer v. Waldo, Barry Co., 7 Ohio St. 309; Rosenthal v. Sutton, 31 Ohio St. 406; Gorey v. Black, 100 Ohio St. 73, 125 N.E. 126; Tucker v. Tucker, 143 Ohio St. 658, 56 N.E.2d 202) would have corrected any defect in process. Section 11287, General Code (Section 2703.09, Revised Code).
Defendant's first affirmative action in this matter after attaining his majority was to move for a continuance for the purpose of taking depositions. Such motion, being a step other than an objection to the court's jurisdiction over his person, constituted a general entry of appearance. Long v. Newhouse, 57 Ohio St. 348, 49 N.E. 79. This occurred, however, three days after the action was barred by the statute of limitations. Section 11224-1, General Code (Section 2305.10, Revised Code).
Thus is presented the question whether a voluntary entry of appearance by a defendant after attaining his majority can cure a defect in service of process made on him while a minor, where such entry of appearance occurs after the action is barred by the statute of limitations.
Defendant's entry of appearance brought him into court, thus waiving the defect of service. At that point, however, he still could have raised the defense of the statute of limitations. Section 11309, General Code (Section 2309.08, Revised Code), lists the bar of the statute of limitations as one of the causes for demurrer to a petition. But neither a demurrer nor a motion to dismiss treated as a demurrer could have raised the question, because the bar of the statute of limitations does not appear on the face of the petition, and the record is complete and regular on its face as to service within the two-year period. The affidavit filed with the motion to dismiss shows that the service ostensibly made within the two-year period was ineffective. However, in testing the sufficiency of a petition on demurrer, the court must look to the petition, not to affidavits or other evidence filed in support of the demurrer.
Section 11311, General Code (Section 2309.10, Revised Code), provides that when no ground for demurrer appears on the face of a petition, the objection may be made by answer and if objection is not so made the defendant shall be deemed to have waived it.
Defendant, after attaining his majority, could have amended his answer, setting up the bar of the statute of limitations. This he did not do. Instead he went to trial on his unamended general denial, admitted liability, and suffered a verdict to be rendered against him. Having failed to avail himself of the opportunity to establish a defense by way of answer, he can not now be heard to complain of the result.
The judgment of the Court of Appeals is, therefore, reversed and that of the Court of Common Pleas affirmed.
Judgment reversed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART and TAFT, JJ., concur.