277 N.E.2d 239 | Ohio Ct. App. | 1971
This is an appeal upon questions of law from a judgment of the Franklin County Court of Common Pleas granting summary judgment in favor of defendant, appellee herein, upon the ground that the action was not commenced by plaintiff, appellant herein, within the time limited by the statute of limitations.
Plaintiff, a resident of Spartanburg, South Carolina, alleged in her amended complaint that on or about February 24, 1967, she was injured at the downtown airport in *276
Greenville, South Carolina, when defendant, a resident of Columbus, Ohio, negligently started the engine of an airplane of which he was pilot, causing the metal propeller to strike plaintiff. Plaintiff filed her complaint in the Ohio trial court on September 18, 1970, at a time after the expiration of the two-year period within which such an action is required to be filed by R. C.
In the interim, appellant had filed a complaint in the Court of Common Pleas, County of Spartanburg, South Carolina, attempting to obtain jurisdiction over defendant by attaching his liability insurance policy. A motion to quash service of summons and to vacate the warrant of attachment was sustained. An appeal was taken, and on July 9, 1970, the Supreme Court of South Carolina affirmed the judgment of the South Carolina Court of Common Pleas, which judgment became final on July 28, 1970. In February 1970, appellant filed a complaint in the United States District Court, Southern District, Eastern Division of Ohio, based upon the same allegations of fact as are alleged in this case. That case apparently is still pending in the federal court which, on May 5, 1970, by order, sustained a motion to dismiss the case, which order was reconsidered and vacated on December 9, 1970. The motion to dismiss in the federal court was also predicated upon the statute of limitations.
Appellant's only assignment of error is that the judgment of the Court of Common Pleas is contrary to law. Appellant contends that since the original action filed in South Carolina was filed within two years after the cause of action accrued and such action failed other than upon the merits, the saving statute, R. C.
"In an action commenced, or attempted to be commenced * * * if 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. * * *" *277
The present action was commenced within one year of the final judgment of the South Carolina Supreme Court. Thus, there are three basic questions:
(1) Was the South Carolina action an action "commenced, or attempted to be commenced" within the meaning of R. C.
(2) Did such South Carolina action fail otherwise than upon the merits?
(3) Does R. C.
There can be no doubt that the action in South Carolina was never commenced. An action is commenced by filing a complaint if service is obtained within one year from such filing. R. C.
R. C.
The Supreme Court of South Carolina expressly held *278 that its determination was otherwise than upon the merits of the complaint. We do not view that determination as binding. Civil Rule 41(B)(4) provides that:
"A dismissal (a) for improper venue, (b) for lack of jurisdiction over the person or the subject matter, or (c) for failure to join a party under Rule 19 or Rule 19.1 shall operate as a failure otherwise than on the merits."
Appellant contends that the dismissal in the South Carolina case was for lack of jurisdiction and thus was a failure otherwise than upon the merits within the contemplation of Rule 41(B)(4). Civil Rule 12(B) provides seven defenses which may be made by a motion or by answer at the option of the pleader. These are:
"(1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19 or Rule 19.1."
It is apparent that dismissals for insufficiency of process or insufficiency of service of process are not among the dismissals which Rule 41(B)(4) provides shall operate as failures otherwise than upon the merits. However, Rule 41(B)(3) provides, as follows:
"A dismissal under this subdivision and any dismissal not provided for in this rule, except as provided in subsection (4) of this subdivision, operates as an adjudication upon the merits unless the court, in its order for dismissal, otherwise specifies."
The South Carolina Supreme Court did otherwise specify, expressly stating that its determination was otherwise than upon the merits of the complaint.
We conclude, however, that R. C.
"Where the action is regarded as controlled by the *279 statute of limitations of the forum, it has usually been held that a plaintiff invoking the saving statute of the forum may not rely upon a nonsuit in an earlier action brought in another state. * * *"
See, also, annotation, 55 A. L. R. 2d 1038.
The Ohio rule is that statutes of limitation are remedial in nature and therefore controlled by the law of the forum. The Ohio statute applies only to actions brought in Ohio and thus can be tolled only with respect to actions brought in Ohio. There could be no action commenced or attempted to be commenced within the purview of the Ohio statute of limitations unless the Ohio statute of limitations was applicable to the original action.
The saving clause of R. C.
We conclude that the saving clause of R. C.
It might be noted that some distinction must be made in regard to a failure upon the merits or otherwise than upon the merits with regard to the applicability of R. C.
Appellant contends further that the judgment of the *280
trial court was a failure to give full faith and credit to the judicial proceedings in South Carolina in violation of Article
Appellant's dilemma stems from the failure of her home state, South Carolina, to enact a long-arm statute similar to the Ohio long-arm statute; and in appellant's own failure to bring her action in Ohio within the two-year statutory period provided by the Ohio statute of limitations.
Finding no error for the foregoing reasons, the judgment of the Court of Common Pleas is affirmed.
Judgment affirmed.
TROOP, P. J., and REILLY, J., concur. *281