Opinion
No. 36815
Decided May 24, 1961.
Limitation of actions — Tort action for bodily injuries — Action deemed "commenced," when — Dismissal for want of service — Not failure "otherwise than upon the merits."
APPEAL from the Court of Appeals for Richland County.
The plaintiff, employed as a truck driver, received personal injuries on May 11, 1955, while his truck was being unloaded at the dock of the defendant in the city of Mansfield, Richland County. On October 9, 1956, a petition and praecipe, in an action to recover for such injuries, were filed against defendant in the Common Pleas Court of Cuyahoga County. The sheriff's return upon the service of summons recited service on October 16, on an individual, as district manager of defendant. On November 7, without entering its general appearance but only for the purpose of the motion, defendant filed a motion to quash the service of summons on the ground that such individual was not an agent of defendant and that defendant did not maintain an agent or an office in Cuyahoga County. The motion was sustained on June 12, 1957, and on April 11, 1958, the case was dismissed for want of service.
On March 20, 1958, the present action was instituted in the Court of Common Pleas of Richland County, the petition alleging that prior thereto plaintiff had brought an action on the matters herein concerned against the defendant herein in Cuyahoga County, that the action was instituted within two years of the events herein concerned and was dismissed otherwise than on its merits. In its answer, defendant admits the former action, denies that it was dismissed otherwise than on its merits, and states that the cause of action alleged in the petition did not accrue within two years next before the commencement of this action and is barred by the statute of limitations. Plaintiff's reply states that the action was brought within one year of the dismissal of the original action brought in Cuyahoga County. Defendant's motion for judgment on the pleadings was sustained and judgment was rendered for defendant.
The Court of Appeals affirmed the judgment.
The allowance of a motion to certify the record brings the cause to this court for review.
Messrs. Ross, Sauter Lett, for appellant.
Messrs. Gongwer, Murray Brown, for appellee.
The question presented is whether the filing of the petition and praecipe in Cuyahoga County and the purported service constituted the "commencement" of an action within the meaning of Section 2305.17, Revised Code, and whether the dismissal was a failure "otherwise than upon the merits," within the meaning of the saving clause in Section 2305.19, Revised Code.
Section 2703.01, Revised Code, provides that a civil action must be commenced by filing with the clerk of the proper court a petition and causing a summons to be issued thereon and served. Section 2307.36, Revised Code, defines a proper court, when the defendant is a corporation, as the one in the county in which the corporation is situated, or has its principal office, or in which it has an office or agent, or in a county in which summons may be served on its officers.
The record discloses that the defendant corporation could not be sued in Cuyahoga County. Hence, the action was never commenced in Cuyahoga County to the point where the court had any jurisdiction over the defendant. Therefore, the plaintiff cannot be said to have failed otherwise than upon the merits. Kossuth v. Bear, 161 Ohio St. 378.
The present action was not brought within two years after the cause thereof arose and is barred by the two-year statute of limitations (Section 2305.10, Revised Code).
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, RADCLIFF and O'NEILL, JJ., concur.
RADCLIFF, J., of the Fourth Appellate District, sitting by designation in the place and stead of HERBERT, J.