Bender v. Bender

Judgment was rendered in the common pleas court against Edna W. Bender on May 20, 1930, and on June 17, 1930, she filed a petition in error in this court to secure a reversal thereof. A summons in error was issued on June 30, 1930, and was returned showing personal service, but that service was set aside in this court on March 11, 1931, on the ground that it was made on the wrong person and not on the defendant in error.

On March 3, 1931, another summons in error was issued, which was served March 6, 1931, on John E. Connell, who was attorney of record for the defendant in error in the common pleas court.

This motion to dismiss the proceeding in error was filed on March 26, 1931.

Section 11231, General Code, provides that an attempt to commence an action shall be deemed equivalent to its commencement when the party diligently endeavors to procure service, if such attempt "be followed by service within sixty days." The only matter in controversy on this motion is one relating to the time when the sixty days mentioned in the statute begins to run. The statute itself is not very explicit, but, as we construe it, the time would begin to run from the date on which the first summons in error is issued.

In the case under consideration, the first summons in error was issued on June 30, 1930, but no lawful service was made until March 6, 1931. It was directly held in Gowdy v. Roberts, 32 Ohio App. 38, 167 N.E. 375, that time commences to run under this statute on the date the first summons is issued. The same holding was made by the Supreme Court in Armbruster, Admr., v. Harrison,116 Ohio St. 490, 157 N.E. 391. In that case the first summons was issued on February 18, 1926, and the alias summons on April 2, 1926, a period of forty-three days, which the Supreme Court held to be within time, and the opinion shows that the time was computed from the date the original summons was issued. Ross,Sheriff, v. Willet, 54 Ohio St. 150, 42 N.E. 697, is not inconsistent with these decisions, for in that case service was made in less than sixty days from the time the first summons in error was issued.

Motion granted and proceedings in error dismissed.

LLOYD and WILLIAMS, JJ., concur.