440 N.E.2d 1240 | Ohio Ct. App. | 1981
These two cases present the same issue. Does Civ. R. 3(A) require that a complaint be dismissed when service is not obtained upon the defendant within one year of filing?
Civ. R. 3(A) provides:
"A civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing."
R.C.
"An action is commenced within the meaning of sections
In the Beal case, the complaint was filed June 28, 1978, on an account. After various attempts, service was obtained by regular mail October 22, 1980. Beal then moved to dismiss and the motion was granted on February 5, 1981.
In Murdock, the complaint was filed on April 28, 1975. Service by regular mail was had on July 19, 1976. Default was taken on August 27, 1976, and on October 27, 1980, plaintiff sought execution on the judgment in the municipal court. Defendant Murdock moved to vacate and dismiss. This motion was granted on April 7, 1981.
We hold that Civ. R. 3(A) must be read in pari materia with R.C. Chapter 2305 on commencement and limitations of actions, and, particularly, R.C.
Accordingly, the judgments of the trial courts in both cases are hereby vacated as the court erred in dismissing these cases since service was obtained before dismissal even if after one year. These causes are remanded for further proceedings according to law.
Judgments vacated and causes remanded. *133
QUILLIN and HUNSICKER, JJ., concur.
HUNSICKER, J., retired, of the Ninth Appellate District, was assigned to active duty under authority of Section 6(C), Article IV, Constitution.