Gowdy v. Roberts , 32 Ohio App. 38 ( 1929 )

On the 7th day of November, 1928, the defendant in error recovered a judgment in his favor in an action at law started against him in the court of common pleas of said county by the plaintiff in error.

On the 15th day of January, 1929, the plaintiff in error filed his petition in error with the clerk of this court, and on the 16th day of January, 1929, in pursuance of the precipe filed with said petition in error, a summons was issued to the sheriff of said county for said defendant in error. The summons was received by the sheriff on January 16, 1929, and on January 29, 1929, the summons was returned and filed with the clerk, bearing the indorsement that said defendant in error could not be found in said county.

On March 23, 1929, the plaintiff in error filed another precipe with the clerk, asking that an alias summons be issued for said defendant in error; which was issued and delivered to the sheriff on said day, and on said day the sheriff made personal service upon the defendant in error. This summons was returned by the sheriff on March 25, 1929, and filed by the clerk on said day.

The defendant in error has filed his motion in this court, asking for a dismissal of this case, claiming that under these circumstances the court does not have jurisdiction.

By Section 12259, General Code, the proceedings to secure a reversal are started by filing a petition in error in the court having power to make the reversal. Thereupon a summons shall be issued, upon a precipe filed by the plaintiff in error, or by his attorney (Section 12260, General Code), and shall be served as in the commencement of an action.

By Section 12270, General Code, the plaintiff in error was required to file his petition in error in this court within 70 days after the entry of the judgment in the court of common pleas; therefore the latest day that the petition in error could have been filed was January 16, 1929, so it was timely filed.

By the provisions of the Code of Civil Procedure, a civil action must be commenced by filing in the clerk's office a petition and causing a summons to be issued thereon (Section 11279, General Code), and the date an action is deemed to be commenced as to the defendant (Section 11230, General Code) is the date of the summons which is served on him; and 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 (Section 11231, General Code). And it has been held by the Supreme Court that these sections apply by analogy to proceedings in error. Robinson v. Orr, 16 Ohio St. 284; Buckingham v.Commercial Bank of Cincinnati, 21 Ohio St. 131; Ross, Sheriff, v. Willet, 54 Ohio St. 150, 42 N.E. 697.

It is therefore apparent, from the foregoing sections, that it was incumbent upon the plaintiff in error not only to file his petition in error within the 70-day period, but also to have a summons issued within said period, which was done. The mere filing of a petition in error within said period would have amounted to a nullity; but when a precipe was filed, and a summons issued within the said period, the case was properly started, being within the saving provisions of Section 11231, General Code, supra. B. O. Rd. Co. v. Ambach, 55 Ohio St. 553,45 N.E. 719; McLarren v. Myers, Admr., 87 Ohio St. 88,100 N.E. 121.

From the foregoing facts, and the law applicable thereto, it must be conceded that an attempt was made by the plaintiff in error to commence a proceeding in error in this court, and that he brings himself clearly within the saving provisions of Section 11231, supra.

The plaintiff in error claims that the 60-day period provided in said section does not start from the day the original summons was issued, which was not served, but starts on the 29th day of January, 1929, that being the day the sheriff made his return of the original summons and the first time plaintiff in error became chargeable with notice that service had not been procured. The plaintiff in error claims that he made a diligent effort to procure a service when he filed his precipe and had a summons issued, in which precipe he set forth the city address of said defendant in error, which was copied in the summons, and at which address, as appears from the files, the sheriff subsequently served the alias summons in error. The plaintiff in error also claims that the service of the alias summons made on March 23, 1929, was made within time — having been made within 60 days after the return of the original summons.

But with this claim we cannot agree, as the Code especially provides, as hereinbefore stated, that an action must be commenced by filing a petition and having a summons issued thereon, and that the time it is deemed to have been commenced is the date of the summons which is served upon the defendant, when there is only one.

When a proceeding in error is started on the last day, as this one was, by having the summons in error issued on that day, although the petition in error was filed on the day prior thereto, service of that summons could have been made after the 70-day period, if made before the return day of the writ, and the proceeding in error would in law have been commenced in proper time, as the service, although made after the 70-day period, would have related back to the day when the writ was issued — which date, of course, the writ would bear. McDonald v. Ketchum, 53 Ohio St. 519, 42 N.E. 322.

The record in this case shows that a proceeding in error was not commenced, because service of the original summons was not made upon the defendant, as is necessary to start an action, but the record does show that an attempt to commence such an action was made by the filing of the petition and having summons issued within time. This attempt to start the proceeding in error gave the plaintiff in error the right to have an alias summons issued and served, and thus put him in the same position he was in originally, except that it gave him further opportunity and additional time to start an action by having a summons issued and served within the additional time of 60 days from the date of the original summons, the date which fixes the time when the original action was attempted to be commenced. But if the date upon which the alias summons was issued could be considered the date when the proceedings were started, then, in this case, the proceedings were not started in time, and, for that reason again, the motion would have to be sustained.

Motion sustained and petition in error dismissed.

FUNK, P.J., and WASHBURN, J., concur.