235 N.E.2d 536 | Ohio Ct. App. | 1968
This is an appeal from an order of the Common Pleas Court of Franklin County dismissing appellant's petition.
The petition as originally filed alleged in part as follows:
"That this cause of action was initially filed in this court on May 23, 1964, being case no. 220368, and was dismissed without prejudice at plaintiff's request on November 10, 1966."
Prior to the order of dismissal, appellant filed an amended petition which alleged in part as follows:
"That this cause of action was initially filed in this *223 court on May 23, 1964, being case no. 220368, and was dismissed without prejudice at plaintiff's request on November 10, 1966; that said dismissal was attributable to certain adverse rulings by the trial court, and this action has been instituted within one year thereof."
Appellees filed a motion to dismiss. Service of process does not affect this case, and the motion is the equivalent of a special demurrer. See Wentz v. Richardson (1956),
The standard statute of limitations requires that a personal injury action be brought within two years. The petition here shows on its face that more than two years had expired. However, Section
If presented as a question of first impression, this court would consider that a voluntary dismissal qualified under the special statute.
In Siegfried v. Railroad Co. (1893),
"* * * To fail, implies an effort or purpose to succeed. One cannot, properly, be said to fail in anything he does not undertake, nor, in an undertaking which he voluntarily abandons. * * * A dismissal by the plaintiff, involves no action of the court; it is a voluntary withdrawal of his case, and is not a failure in the action."
On the general meaning of "failure," compare the definition in Webster's Third New International Dictionary (Unabridged).
In Cero Realty Corp. v. American Manufacturers Mutl. Ins.Co. (1960),
Under Cero the mere fact that the dismissal was by the plaintiff pursuant to Section
The court in Cero quoted with approval from 86 A. L. R. 1051 to the effect that a distinction between involuntary and voluntary nonsuit "has been held almost without exception" to be too narrow. An exception is the Siegfried case. In our opinion,Siegfried is no longer the law of Ohio. Any voluntary nonsuit or dismissal under Section
The order of the Common Pleas Court will be reversed and the cause remanded for further proceedings.
Judgment reversed.
TROOP and DUFFY, JJ., concur.
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