Howard v. Allen

283 N.E.2d 167, 30 Ohio St. 2d 130, 59 Ohio Op. 2d 148, 1972 Ohio LEXIS 455
CourtOhio Supreme Court
DecidedMay 17, 1972
DocketNo. 71-683
StatusPublished
Cited by45 cases

This text of 283 N.E.2d 167 (Howard v. Allen) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Howard v. Allen, 283 N.E.2d 167, 30 Ohio St. 2d 130, 59 Ohio Op. 2d 148, 1972 Ohio LEXIS 455 (Ohio 1972).

Opinion

Brown, J.

The prime issue before this court is: Does R. C. 2305.19, the Ohio saving clause, apply only to actions “commenced or attempted to be commenced” in the state of Ohio? We hold that it does and that it is not applicable to actions commenced or attempted to be commenced in foreign states.

R. C. 2305.19, provides, in pertinent part:

“In an action commenced, or attempted to be commenced # * * if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of * * * failure has expired, the [133]*133plaintiff * * * may commence a new action within one year after such date.”

Although this is a case of first impression in this state, this precise question has been considered by the courts of a number of states. By far, the majority rule is that for an action to come within the provision of a forum state’s saving clause the original action must have been initially brought in that forum state within its period of limitation. As stated in 55 A. L. R. 2d 1038, and 51 American Jurisprudence 2d 810, Limitation of Actions, Section 306: “Where the action is regarded as controlled by the statute of limitations of the forum, it has usually been held that a plaintiff invoking the saving statute of the forum may not rely upon a nonsuit in an earlier action brought in another state.”

Defendant correctly claims that there can be no question that plaintiff’s action is controlled by the two-year Ohio statute of limitation (R. C. 2305.10)—the period of limitation of the forum. As established in the early case 'of Pinney v. Cummings (1875), 26 Ohio St. 46:

“Actions upon causes of action accruing outside of this state, and not limited by the law of the place where they accrued, or limited thereby to longer periods than those specified in our statute, are governed as to limitation by the Ohio statute in like manner as causes of action accruing within the state.”

Based upon Pinney v. Cummings, which is still the law of this state, Ohio follows the majority rule stated above. The equally long-established rule in Ohio is that limitation provisions are remedial in nature, and are therefore controlled by the law of the forum. In Kerper v. Wood (1891), 48 Ohio St. 613, this court stated, at page 622: “* * * Statutes of limitations relate to remedy, and are, and must be, governed by the law of the forum * * * a court which has power to say when its doors shall be open, has also the power to say when they shall be closed.” The following will illustrate the logic of the majority rule: Given: 1. The Ohio saving clause cannot save an ac[134]*134tion from the running of the statute of limitation unless the original action was commenced or attempted to be commenced within the applicable period of limitation (R. C. 2,305.19). 2. The commencement of an action in one state does not toll the running of limitations against an action for the same cause of action and between the same parties in another state. 54 Corpus Juris Secundum 367, Limitation of Actions, Section 299. Conclusion: Although plaintiff’s original action was filed in the foreign jurisdiction within two years after it accrued, the action was not commenced within the Ohio period of limitation, and plaintiff cannot for that reason avail herself of R. C. 2305.19.

The applicable statute of limitation is that of Ohio. If the action is barred by the Ohio statute of limitation, nc action can be maintained in this state, even though the action is not barred elsewhere. Suit must be brought in Ohio before the Ohio statute has run. A suit in another state can no more toll the Ohio statute, applicable to suits in Ohio, than an unexpired claim under the statute of another state can operate to lift the statute of limitation and thereby make the saving clause available.

See Andrew v. Bendix Corp. (C. A. 6), Nos. 71-1289 and 71-1290, decided December 20, 1971 (applying Ohio law to substantially the same issue and facts as are involved in the instant ease); Scurlock Oil Co. v. Three States Contracting Co. (1959), 272 F. 2d 169; Riley v. Union Pac. R. Co. (1950), 182 F. 2d 765; Overfield v. Pennroad Corp. (1944), 146 F. 2d 889; C. & L. Rural Electric Coop. v. Kincade (1959), 175 F. Supp. 223; Sorensen v. Overland Corp. (1956), 142 F. Supp. 354; Sigler v. Youngblood Truck Lines (1957), 149 F. Supp. 61.

The general rule has also been applied in cases where plaintiff originally filed suit in a foreign jurisdiction within the forum state’s statute of limitation. In High v. Broadnax (1967), 271 N. C. 313, 156 S. E. 2d 282, plaintiff unsuccessfully attempted to take advantage of a North Carolina savings provision which is similar to Ohio’s arguing that since he had instituted suit in Virginia within North [135]*135Carolina’s statute of limitation, the North Carolina statute of limitation stopped running at the time of the foreign state commencement. Holding that plaintiff’s second suit was barred by the North Carolina statute of limitation, the Supreme Court of North Carolina stated, at page 316: “We adhere to the general rule that a statute of the forum which permits a suit to be reinstituted within a specified time after dismissal of the original action otherwise than upon its merits has no application ivlien the original suit toas brought in another jurisdiction.”

Since the saving provision is not applicable to suits not originally commenced or attempted to be commenced in Ohio prior to the running of Ohio’s statute of limitation, R. C. 2305.19 is not available to her in the absence of some manifest legislative intent to the contrary.

An examination of the Ohio Rules of Civil Procedure does not reveal an intent that an action filed in a foreign state be considered “commencement” or “attempted commencement” for purposes of applying Ohio procedural law. Civ. R. 3(A) defines “commencement” in Ohio as “(1) filing a complaint with the court and (2) obtaining service within one year from the filing.” It is apparent that the word “court,” as used in Civ. R. 3(A) refers to an Ohio court, since Rule 1(A) provides that the Ohio Rules of Civil Procedure be limited to “courts of this state.” Accordingly, the phrase ‘ ‘ commenced or attempted to be commenced” contained in R. C. 2305.19 must be limited to actions before the courts of this state, absent an express provision to the contrary.

Plaintiff contends that the Full Faith and Credit Clause and the Privileges and Immunities Clause of the United States Constitution compel Ohio courts to apply R. C. 2305.19 to actions originally filed in foreign states but not commenced or attempted to be commenced in this state within the relevant statute of limitations. We disagree.

Section 1, Article IV of the United States Constitution, provides in pertinent part that “full faith and credit shall be given in each state to the public acts, repords? and [136]

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Cite This Page — Counsel Stack

Bluebook (online)
283 N.E.2d 167, 30 Ohio St. 2d 130, 59 Ohio Op. 2d 148, 1972 Ohio LEXIS 455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/howard-v-allen-ohio-1972.