Bender v. Bender

Ohio Court of Appeals

Bender v. Bender

177 N.E. 920, 39 Ohio App. 547, 10 Ohio Law. Abs. 329, 1931 Ohio App. LEXIS 502

CourtOhio Court of Appeals

DecidedApril 13, 1931

Docket2414

StatusPublished

This text of 177 N.E. 920 (Bender v. Bender) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bender v. Bender, 177 N.E. 920, 39 Ohio App. 547, 10 Ohio Law. Abs. 329, 1931 Ohio App. LEXIS 502 (Ohio Ct. App. 1931).

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Opinion

RICHARDS, J.

Sec 11231 GC, 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.0’ 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 Oh Ap, 38, 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 Oh St, 490. In the latter case the first summons was issued on February 18, 1926 and the alias summons on April 2nd, 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 Oh St, 150, 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. Proceedings in error dismissed.

LLOYD and WILLIAMS, ,JJ, concur.

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RICHARDS, J.

Sec 11231 GC, 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.0’ 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 Oh Ap, 38, 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 Oh St, 490. In the latter case the first summons was issued on February 18, 1926 and the alias summons on April 2nd, 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 Oh St, 150, 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. Proceedings in error dismissed.

LLOYD and WILLIAMS, ,JJ, concur.

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Bluebook (online)

177 N.E. 920, 39 Ohio App. 547, 10 Ohio Law. Abs. 329, 1931 Ohio App. LEXIS 502, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bender-v-bender-ohioctapp-1931.

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