90 Ohio Law. Abs. 513 | Ohio Ct. App. | 1962
Robert Winland filed, on July 18, 1960, an action in the Common Pleas Court of Cuyahoga County, alleging that on August 4, 1959, he sustained personal injuries and property damage when one Willie F. Ward negligently
Service of process was not made upon Willie F. Ward until June 8,1961, when be was served at bis usual place of residence. Various leaves to plead were granted Willie F. Ward, wbo, upon September 25, 1961, filed an answer wbicb consisted of a general denial of tbe allegations of tbe petition.
On December 6, 1961, Willie F. Ward filed a motion for summary judgment, attaching to such motion two affidavits: one executed by bimself, and tbe other executed by bis wife, Willie E. Ward. Tbe affidavit of Mrs. Ward stated that she was tbe operator of tbe motor vehicle wbicb was involved in an accident with Eobert Winland, and that her husband, Willie F. Ward, tbe defendant in tbe trial court, was not present in tbe automobile, and was in no way involved in tbe accident.
Eobert Winland, wbo in bis petition referred to tbe defendant in tbe masculine gender, then asked tbe trial court to amend tbe petition to substitute tbe feminine gender for tbe masculine gender where appropriate, and also to substitute tbe name of “Willie E. Ward” for “Willie F. Ward” in tbe petition and in tbe summons. Tbe motion to amend was overruled, and a judgment was entered in favor of tbe defendant, Willie F. Ward.
It is from sucb judgment that an appeal on questions of law is before this court.
Tbe statute of limitations for tbe bringing of an action against Willie E. Ward, tbe wife of Willie F. Ward, has elapsed. Tbe one hope Mr. Winland has is to be successful in bis appeal herein.
Tbe only error assigned is that tbe judgment is contrary to law.
We do not doubt but that Mrs. Ward realized, when a summons came to tbe residence alleging that her husband was involved in a motor veMcle accident on August 4, 1959, that it was she wbo was meant to be sued, and not Mr. Ward. Tbe attorney for Mr. Winland, and Mr. Winland bimself, must have understood that they were suing Mr. Ward, for, in addition to tbe name of Mr. Ward, tbe petition indicated tbe defendant to be a male person, and not a female person, although Mr. Winland must have known that tbe individual wbo be alleged caused tbe accident was a woman.
“4. Where summons is duly served on the real party in interest, who is the one actually intended to be sued, even under a wrong or inaccurate appellation, he must take timely advantage of the error by appropriate plea. If he fails to do so, he will be deemed to have waived the defect and will be concluded by the judgment rendered against him. ’ ’
Maloney v. Callahan, 127 Ohio St., 387.
In the instant matter, we do not have a situation where there is a misnomer. In the case before us, Mr. Ward was sued, and he received residence service of process. We do not have before us a situation as existed in Maher v. Deam, 137 N. E. (2d), 149, or Claxton (Claxon) v. Simons (Simon) et al., 177 N. E. (2d), 511. Our ease indicates only that the wrong party was sued, and the statute of limitations does not now permit suit to be brought against the one who admittedly was involved in the motor vehicle collision.
Names are used to identify persons; and where, as here, there is a similarity of names, the middle initial serves to distinguish the person sued. Judge Skeel, of this court, said, in Claxton (Claxon) v. Simons (Simon) et al., 177 N. E. (2d), 511, at p. 514:
“The name by which a person is known is the name by which he must be designated in an action brought against him where service is other than personal service.”
In the case before us, Willie F. Ward was sued, and the apparent intention of the plaintiff, Winland, was to sue a male person of that name. The trial court was not in error when it granted the summary judgment in this case. The judgment must be affirmed.
Judgment affirmed.
