Shull v. Simpson, 227512

• Citation: 233 N.E.2d 524,13 Ohio Misc. 41
• Decision Date: 28 November 1967
• Docket Number: No. 227512,227512
• Parties: , 42 O.O.2d 59 SHULL v. SIMPSON.
• Court: Court of Common Pleas of Ohio

Page 41

13 Ohio Misc. 41

233 N.E.2d 524, 42 O.O.2d 59

SHULL v. SIMPSON.

No. 227512.

Court of Common Pleas of Ohio, Franklin County.

Nov. 28, 1967.

Russell H. Volkema and Dobbs & Finnegan, Columbus, for plaintiff.

Hamilton, Kramer & Myers, Columbus, for defendant.

LEACH, Judge.

Plaintiff herein filed his petition of July 21, 1966, alleging personal injury, medical expense and loss of income, past, present and future, as a result of the claimed negligence of the defendant in the operation of a motor vehicle on January 16, 1965. The petition prayed judgment in the sum of $30,000. Answer thereto was filed by defendant on August 20, 1966.

This case is now before the court on the motion of the plaintiff for leave to file an amended petition increasing the amount of the prayer. In support of this motion plaintiff relies principally on Masterson v. George F. Alger Co., Ohio App., 143 N.E.2d 749, 78 Ohio Law Abst. 89 (decided June 25, 1957, with judges of the 9th District sitting by designation in the 8th District; Cuyahoga County) and House v. Moomaw, 120 Ohio App. 23, 201 N.E.2d 66 (Court of Appeals of Montgomery County; March 20, 1964).

Counsel for defendant oppose this motion principally on the basis that more than two years has expired since the cause of action arose, and thus asserted that an increase in the prayer cannot be made without securing additional process, and that additional process cannot be secured after the running of the two year statute of limitations. Reliance is had by counsel for defendant on Baramore v. Washing, Ohio Com.Pl., 160 N.E.2d 432, 80 Ohio Law Abst. 518 (Common Pleas Court, Montgomery County; March 4, 1959); Myers v. Wilson, Ohio Com.Pl., 168 N.E.2d 774, 83 Ohio Law Abst. 295 (decided by Judge Gessaman of this court on February 5, 1960); and Miller v. Risman, 213 N.E.2d 185, 94 Ohio Law Abst. 368 (Court of Appeals of Cuyahoga County; June 25, 1964).

All of these cases, both pro and con on this subject matter, accept the proposition that an increase in the prayer does not constitute a new cause of action. This being true the general rule is that an amendment may be made increasing the amount of damages claimed after the running of the statute of limitations. 34 American Jurisprudence 218.

In Ohio this issue is complicated by the fat that Section 2703.02, Revised Code, provides that the praecipe for the issuance of summons shall, if the claim is for the recovery of money, state the amount for which judgment is asked, and by the fact that Section 2703.03, Revised Code, provides that when the action is for the recovery of money there must be included in the summons or endorsed on the writ or included in a copy of the petition served with the summons the amount for which judgment is asked, with interest, if any.

In Casey v. Lintner, case No. 186913, we held on March 17, 1955, that the requirement of stating the amount of recovery sought on the summons, as provided by then Section 11281 General Code (now Section 2703.03, Revised Code) only limited the maximum amount of a default judgment, as evidence by the language of the statute that if the defendant failed to appear judgment should not be rendered for a larger sum than the amount prayed for with interest, if any, and the costs.

After reviewing all of the case law on this subject matter we still are of the same opinion.

In Kleinhans v. American Gauge Company, 83 Ohio App. 453, 80 N.E.2d 626, the Court of Appeals for Montgomery County (then also the Court of Appeals for this county), stated in the body of its opinion, without extended discussion or any reference to either statutes or other case authority, that an amendment increasing the prayer of a petition could not be made without new service being had and a continuance granted, and that the allowance of such was error.

In effect, this language in Kleinhans became the basis for later holdings that an amendment increasing the prayer of a petition could not be accomplished subsequent to the running of the statute of limitations.

In Abrams v. Clark, Ohio Com.Pl., 145 N.E.2d 358, 76 Ohio Law Abstr. 49, Judge Bartlett of this court on February 6, 1957, referred to Kleinhans and on such basis denied application for leave to amend the endorsement on the summons, while at the same time granting leave to amend the prayer of the petition. In essence that opinion appears to hold that an amendment could be made to the petition but such would be totally ineffective in the sense of permitting additional recovery because of the running of the statute of limitations.

In Baramore v. Washing, 160 N.E.2d 432, 80 Ohio Law. Abstr. 518, Judge McBride of the Montgomery County Common Pleas Court held, relying in large part on Kleinhans and Abrams, that the requirement as to service of process that the amount sought to be endorsed thereon was "necessary to establish the jurisdiction of the court to award a money judgment." On this basis, plus the fact that Section 2305.10, Revised Code, defined "an action" as an ordinary proceeding in a court of justice "involving process," pleadings and ending in a judgment, Judge McBride held that such an amendment could not be made.

This same reasoning was followed by Judge Gessaman of this court in Myers v. Wilson, Ohio Com.Pl., 168 N.E.2d 774, 83 Ohio Law Abstr. 295, decided February 5, 1960. Again it was followed by the Court of Appeals of Cuyahoga County in Miller v. Risman, 213 N.E.2d 185, 94 Ohio Law Abst. 368, decided June 25, 1964. In Miller v. Risman the court even went to the extent of holding that the filing of such an amended petition constituted an abandonment of the original claim and thus "the court was without jurisdiction to give any consideration on plaintiffs' claim for money damages."

On the other side of the fence in addition to the decision of this branch of the court in Casey v. Lintner, in 1955, it appears that the Court of Appeals for ...