111 N.E.2d 268 | Ohio Ct. App. | 1952
Each of the appeals are from entries in companion cases finding that the actions were "filed" more than two years after the accident had occurred, and dismissing the petitions. The accident, as a result of which the actions were instituted, occurred September 28, 1948. The petitions accompanied by praecipes for summons and deposits for costs were filed on September 28, 1950, but the summonses were not issued pursuant to the praecipes until September 29, 1950.
"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." Section 11279, General Code.
At first blush it would seem that an action is commenced by the filing of the petition and praecipe for *532 summons pursuant to which the plaintiff would thereby cause summons to be issued.
But Section 11230, General Code, provides:
"An action shall be deemed to be commenced within the meaning of this chapter [Chapter 2 relating to limitations of actions], as to each defendant, at the date of the summons which is served on him or on a co-defendant who is a joint contractor, or otherwise united in interest with him. * * *" (Italics supplied.)
Section 11231, General 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."
In Baltimore Ohio Rd. Co. v. Ambach (1897),
"The burden of causing a summons to be issued is cast upon the plaintiff in error, and as no summons was caused to be issued, in this case, there was no endeavor to procure the service of summons, and therefore the plaintiff in error does not bring itself within the saving provisions of Section 4988 [now Section 11231, General Code], and the Circuit Court was right in dismissing the petition in error."
In McLarren v. Myers, Admr. (1912),
In Feigi v. Lopartkovich,
It appearing from an examination of the record upon these appeals that the actions were not brought within two years after the cause thereof arose, the judgments are affirmed.
Judgments affirmed.
CONN and SAVORD, JJ., concur.