Lash v. Miller, 76-1027

• Decision Date: 04 May 1977
• Docket Number: No. 76-1027,76-1027
• Citation: 4 O.O.3d 155,362 N.E.2d 642,50 Ohio St.2d 63
• Parties: , 4 O.O.3d 155 LASH, Appellee, v. MILLER et al., Astley, Appellant.
• Court: Ohio Supreme Court

Page 63

50 Ohio St.2d 63

362 N.E.2d 642, 4 O.O.3d 155

LASH, Appellee, v. MILLER et al., Astley, Appellant.

No. 76-1027.

Supreme Court of Ohio.

May 4, 1977.

Bradley & Farris and Philip R. Bradley, Columbus, for appellee.

Sebastian, Marsh & Redmond and Arthur M. Sebastian, Columbus, for appellant.

PER CURIAM.

The judgment of the Court of Appeals is reversed.

Civ.R. 3(A) provides that '(a) civil action is commenced by filing a complaint with the court, if service is obtained within one year from such filing.' (Emphasis added.)

The first paragraph of the syllabus in Mason v. Waters (1966), 6 Ohio St.2d 212, 217 N.E.2d 213, 214 reads:

'Within the meaning of Section 2305.17, Revised Code (similar to Civ.R. 3(A)), as it read prior to amendment effective October 30, 1965, the filing of a petition and precipe for the issuance of summons does not constitute the commencement of an action or an attempt to commence an action equivalent to its commencement, where there has been no effective service of summons upon defendant within the time limit prescribed by that statute.' (Emphasis added.)

This court stated further, at page 215, 217 N.E.2d at page 216, that:

'Section 2305.17, supra, provides that an action shall be deemed commenced at the date of the summons which is served on defendant. This contemplates an effective service of summons, which, in this case, was not obtained until September 26, 1963. Since there was no effective service prior to that date, no action was commenced, nor was there an attempt to commence an action equivalent to its commencement within the meaning of Section 2305.17, supra. Kossuth v. Bear, 161 Ohio St. 378, 119 N.E.2d 285.' (Footnote omitted.)

The Court of Common Pleas was correct. The action herein was never commenced as to defendant Astley. Effective service of summons on the defendant is a necessary prerequisite to the commencement of a civil action. Civ.R. 3(A).

Accordingly, the judgment of the Court of Appeals is reversed and the judgment of the trial court in favor of Astley is reinstated.

Judgment reversed.

C. WILLIAM O'NEILL, C. J., and HERBERT, CELEBREZZE, WILLIAM B. BROWN, PAUL W. BROWN, SWEENEY and LOCHER, JJ., concur.

1 Certified mail service was returned 'unclaimed' or unserved. At various times, plaintiff requested personal service and residence service. On September 13, 1974, personal service was had on defendant Astley.

2 The issue of concealment is not before the court. The record does not show that...