House v. Moomaw

• Decision Date: 20 March 1964
• Parties: , 28 O.O.2d 211 HOUSE, Appellant, v. MOOMAW, Appellee.
• Court: Ohio Court of Appeals

Page 23

120 Ohio App. 23

201 N.E.2d 66, 28 O.O.2d 211

HOUSE, Appellant, v. MOOMAW, Appellee.

Court of Appeals of Ohio, Second District, Montgomery County.

March 20, 1964.

Staley & Gilvary, Dayton, for appellant.

Harshman, Young, Colvin & Alexander, Dayton, for appellee.

SHERER, Judge.

This is an appeal from an order of the Common Pleas Court of Montgomery County, Ohio, overruling the application of plaintiff, appellant herein, seeking leave of court to file a supplemental petition as provided in Section 2309.63, Revised Code, as follows:

'On such terms as to costs as the court prescribes, either party may file a supplemental petition, answer, or reply, alleging facts material to the case which occurred since the filing of the former petition, answer, or reply. Reasonable notice of the application therefor must be given, when the court so requires."

The parties will hereinafter be referred to as they appeared in the trial court. Plaintiff's petition, filed on August 4, 1962, seeks damages for personal injuries and was filed within two years after the cause of action arose as provided by Section 2305.10, Revised Code. Such section provides as follows:

'An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose.'

Plaintiff's application for leave to file a supplemental petition was filed after the statute of limitations had run, after the defendant had answered and before trial. The application recites that the purpose of filing such supplemental petition is to allege facts material to the cause which occurred since the filing of the original petition. A copy of the proposed supplemental petition, attached to the application, alleges that further surgery was performed on plaintiff's knee on November 5, 1962; that he was confined in the psychiatric department of Miami Valley Hospital from February 26, 1963, to March 27, 1963, for mixed psychoneurosis with anxiety, depression and conversion features; that he has incurred additional medical and hospital expenses in the sum of $1,660.56; that he has sustained additional loss of earnings in the amount of $1,453.92; that he will continue to lose earnings in the future; and that he has suffered additional pain which caused him discomfort to his damage in the amount of $2,565, all as a direct and proximate result of the acts of defendant's employee. Plaintiff prays for judgment therein against defendant in the additional sum of $5,679.48, plus costs. The praecipe attached is as follows:

'Please issue summons to the Sheriff of Montgomery County, Ohio, for service upon the defendant, Donald Moomaw at 2944 Martins Drive, Dayton 49, Ohio. Endorse thereon: 'Supplemental Petition alleging additional damages; amount of additional damages claimed five thousand six hundred seventy-nine and 48/100 ($5,679.48) dollars.' Make same returnable according to law.'

The supplemental petition reavers all the allegations of plaintiff's original petition.

In State ex rel. Dickman, a Taxpayer v. Defenbacher, Dir., 151 Ohio St. 391, 394, 86 N.E.2d 5, 7, the court quotes with approval from 41 American Jurisprudence, 477, Section 264, as follows:

'* * * 'the facts embodied in a supplemental complaint must relate to the cause of action set forth in the original complaint, and must be in aid thereof. An entirely new case cannot be introduced in this way.''

The court cites 30 C.J.S. Equity § 425, p. 834, as authority for the statement that, although the purpose of a supplemental bill is to support a cause or suit existing at the time of the filing of the original bill, it is never available to introduce a new or independent cause of action.

In the Dickman case, the plaintiff changed the character of his action in a supplemental petition from one of prevention as to named persons to one of compulsion as to other and different persons.

In Andrianos v. Community Traction Co., 155 Ohio St. 47, 51, 97 N.E.2d 549, the court said that the word, 'action,' as used in Section 11224-1, General Code, now Section 2305.10, Revised Code (the statute of limitations for personal injury), refers to the nature or subject matter thereof and not to its form as a matter of remedial procedure. In other words, the phrase, 'an action,' as contained in this section, refers to the cause of action, and has reference to the wrong committed rather than the procedure to redress such wrong. Levin v. Bourne, 117 Ohio App. 269, 272, 192 N.E.2d 114.

In support of his argument that plaintiff cannot file his supplemental petition after the statute of limitations has expired, defendant relies upon the reasoning of the court in the case of Baramore v. Washing, Ohio Com.Pl., 160 N.E.2d 432. In that case the plaintiff filed a petition alleging a negligent act of the defendant and sought judgment in the amount of $7,856.91. The praecipe requested that summons be endorsed: 'Action for money only, amount claimed $7,856.91 plus costs.' The plaintiff, without leave of court first obtained, later filed an amended petition which included a prayer for damages in the amount of 33,256.87. No praecipe was attached and no summons was issued. The amendment was filed more than two years after the date of the accident. A motion to strike from the amended petition the claim for damages in the amount of $33,256.87 was sustained. The holding of the court in the Baramore case is predicated in part upon the statement of this court in Kleinhans v. American Gauge Co., 83 Ohio App. 453, 456, 80 N.E.2d 626, 628; that an amendment of the petition increasing the amount claimed 'could not be made without new service being had and a continuance granted.' An examination of the facts in Kleinhans indicates that the plaintiff's claim as set forth in the petition was based on an express contract and that the plaintiff sought an amendment increasing the amount claimed upon the theory of implied quantum meruit for the value of services performed. This new theory represented a change in the plaintiff's cause of action. This court said that the plaintiff did not seek to amend his petition to allege a different cause of action to conform to the proof of a new cause of action on an implied agreement and that such failure was understandable because there was no evidence to support any such implied agreement. The court, in the Baramore case, said, 160 N.E.2d at page 433:

'R.C. § 2305.10 requires 'an action for bodily injury' to be brought within two years. An action is defined as an ordinary proceeding in a court of justice, involving process, pleadings, and ending in a judgment. R.C. § 2307.01. By definition, process is an essential part of an action.'

And the court said further that:

'The amount of the prayer is a substantial and an essential element required by statute to be stated in the petition (R.C. § 2309.04), the praecipe (R.C. § 2703.02), and in the summons served upon the defendant (R.C. § 2703.03), The prayer is not a part of the cause of action. Suburban Home Mortgage Co. v. Hopwood, 2d Dist., 83 Ohio App. 115, 81 N.E.2d 387.

'Service of process, containing the amount for which judgment is requested, or a waiver of such process by the defendant is necessary to establish the jurisdiction of the court to award a money judgment. In event of default the statute expressly states that 'judgment shall not be rendered for a larger amount than the amount prayed for and the costs.' R.C. § 2703.03.'

Section 2703.03, Revised Code, at the time this action was commenced, provided in part as follows:

'The summons must be issued * * *. It shall be directed to the sheriff of the county, who shall be commanded therein to notify the defendant that he has been sued, and that he must answer at a time stated therein, or the petition will be taken as true and judgment rendered accordingly. When the action is for the recovery of money only, there must be indorsed on the writ the amount stated in the praecipe, for which, with interest, judgment will be taken if the defendant fails to answer. If the defendant fails to appear, judgment shall not be rendered for a larger amount than the amount prayed for and the costs.'

Thus, the court came to the conclusion that the prayer of a petition could not be amended to increase the amount claimed after the statute of limitations has expired because it would require a new action as defined by Section 2307.01, Revised Code, which provides:

'An action is an ordinary proceeding in a court of justice, involving process, pleadings, and ending in a judgment or decree, by which a party prosecutes another for the redress of a legal wrong, enforcement of a legal right, or the punishment of a public offense.'

The court said that the reason such amendment was a new action was because it involved process (Section 2307.01, Revised Code) and that such amendment called for additional process because the summons issued must set forth the amount claimed (Section 2703.03, Revised Code). In the Baramore case, it appears from the opinion that the plaintiff sought to amend only the prayer of his petition to increase the amount claimed. The opinion recites, at page 433 of 160 N.E.2d, that the plaintiff filed an amended petition which included a prayer for an increased amount. It is not clear from the opinion whether any effort was made in the amended petition to allege any new facts in aid of or to supplement the original cause of action. We do not follow the reasoning of the court, at page 433, to the effect that because Kleinhans holds that new service is required if an increase in the prayer is sought and that since process is involved in the definition of an action by Section 2307.01, Revised Code, plaintiff cannot amend his prayer and obtain service because such action is barred by Section 2305.10, Revised Code. The only action that is barred by that section is the assertion of a cause of action. See Andrianos v. Community Traction Co., supra (155 Ohio St. 47, 51, ...