Wentz v. Richardson, s. 34777
| Decision Date | 28 November 1956 |
| Docket Number | Nos. 34777,34778,s. 34777 |
| Parties | , 60 O.O. 507 WENTZ, Appellee, v. RICHARDSON et al., Appellants. WENTZ et al., Appellees, v. RICHARDSON et al., Appellants. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. In a civil action the bar of the statute of limitations may be properly and effectively raised by a motion to dismiss the action, where it is apparent from the entire record before the court that the period of limitation has run through failure to obtain timely service of summons on the defendant and no good reason is advanced as to why the record should not prevail.
2. Section 11228, General Code, Section 2305.15, Revised Code, which provides for the tolling of statutes of limitation in described contingencies contemplates causes of action which arise in Ohio and does not embrace causes of action which originate in foreign jurisdictions.
Two actions are here involved, and the controlling question in each is whether in a civil action brought in the Court of Common Pleas the bar of the statute of limitations may properly and effectively be raised against such action by motion to dismiss, where the record before the court discloses that the period of limitation has expired. Or must the motion be overruled, where such expiration does not affirmatively appear on the face of the petition?
That question was answered by the Court of Common Pleas in favor of the efficacy of such a motion, and the actions were dismissed.
A majority of the Court of Appeals on appeals on questions of law held to the contrary, reversed the judgments below and remanded the causes for further proceedings.
The allowance of motions to require the Court of Appeals to certify its records places the controversy before this court for disposition on the merits.
Martin A. Coyle, Hamilton, and Rendigs, Fry & Kiely, Cincinnati, for appellants.
Parrish, Beeler, Egbert & Bartels, Hamilton, for appellees.
It appears from the records that on March 19, 1953, Carlton Wentz, individually, and Carlton Wentz, individually and as administrator, filed, respectively, two petitions in the Court of Common Pleas of Butler County, Ohio, against T. J. Richardson and Agatha Richardson. In one petition damages are claimed for personal injuries sustained by Wentz in March of 1951 in the state of Florida due to the claimed negligence of the defendants, and in the other damages are asked for the death of Wentz's wife growing out of the same incident at the same time and place. It is alleged that through the negligence of the defendants, who conducted a tourist court, gas escaped from a heating unit into the room assigned to and occupied by Wentz and his wife, paying guests, whereby Wentz was injured and his wife killed.
The records disclose further that on the date the petitions were filed a summons was issued in each case, directed to the sheriff of Butler County, and that these summonses were returned two days later endorsed, 'the said T. J. Richardson and Agatha Richardson not found in my bailiwick.'
Nothing further transpired until September 11, 1954, when alias summonses were issued to the sheriff of Butler County and were promptly served on the defendants personally. Then on October 5, 1954, defendants filed motions in each case, one a motion to quash service of summons and the other a motion to dismiss the action for the reason that it is barred by the statute of limitations.
Presented to the Court of Common Pleas and obviously considered by it were stipulations as to certain facts signed by opposing counsel, which stipulations appear among the papers in the cases. However, they do not bear the stamp of the Clerk of the Common Pleas Court, were not referred to in the trial court's judgment entries and were not brought upon the records by any bills of exception. Under these circumstances we think the Court of Appeals was correct in its unanimous ruling that such stipulations must be ignored.
As has been observed, the trial court sustained the motions to dismiss the actions and the Court of Appeals reversed.
Under Section 11224-1, General Code, Section 2305.10, Revised Code, an action for bodily injury must be brought within two years after the cause thereof arose. Likewise, Section 10509-167, General Code, Section 2125.02, Revised Code, requires that an action for wrongful death be brought within two years of such death. Section 11218, General Code, Section 2305.03, Revised Code, prescribes generally that a civil action must be commenced within the time prescribed by statute, and that lapse of the time is a bar thereto when interposed by a proper plea of one of the parties. Furthermore, Section 11230, General Code, Section 2305.17, Revised Code, provides that an action is commenced at the date a summons is served on the defendant, and Section 11231, General Code, Section 2305.17, Revised Code, provides that 'an attempt to commence an action shall be deemed to be equivalent to its commencement * * * if such attempt be followed by service within sixty days.'
Treating the defendants' motions to dismiss as special demurrers based on the statute of limitations, plaintiffs, as did the Court of Appeals, rely on Section 11309, General Code, Section 2309.08, Revised Code, which states, among other things, that the defendant may demur to a petition where it appears on its face that 'the action was not brought within the time limited for the commencement of such actions,' and on Section 11311, General Code, Section 2309.10, Revised Code, which provides that 'when, on the face of a petition, no ground of demurrer appears, the objection may be taken by answer.'
We are of the opinion that these statutory provisions are not exclusive and are not dispositive of the problem presented in the cases before us. We are further of the opinion that, where a petition is challenged by a motion to dismiss on the ground that the cause of action stated therein is barred by the statute of limitations and the record then before the court clearly shows that the action is so barred, no good or sufficient reason arises to preclude the court from saying so then and there and dismissing the action.
We realize that ordinarily where the bar of the statute does not appear on...
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...long been prohibited in Ohio, in the absence of the application of an appropriate tolling provision. See, e.g., Wentz v. Richardson, 165 Ohio St. 558, 138 N.E.2d 675 (1956), paragraph one of the syllabus. The Supreme Court of Ohio would not likely hold that a creditor (or any other litigant......
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...that the alleged cause of action did not arise in Ohio, thereby precluding the application of O. R.C. § 2305.15. Wentz v. Richardson, 165 Ohio St. 558, 138 N.E.2d 675 (1956). Alternatively, defendant argues that if the cause of action arose in Ohio the statute should not be held to apply fo......
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