Juhasz v. Corson

171 Ohio St. (N.S.) 218

• Court: Ohio Supreme Court
• Decided: July 13, 1960
• Docket: No. 36449
• Status: Published

Opinion

Per Curiam.

The question presented is whether Section 2305.19, Revised Code, provides a one-year extension to the limitation period in which plaintiffs may bring their action. That section provides:

“In an action commenced, or attempted to be commenced, if in due time * * * 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 plaintiff * * * may commence a new action within one year after such date. # # # ??

Section 2305.17, Revised Code, provides:

“An action is commenced * * * as to each defendant, at the date of the summons which is served on him * * *.

“* * * an attempt to commence an action is equivalent to its commencement, when the party diligently endeavors to procure a service, if such attempt is followed by service within 60 days.”

A minor can be sued and served with process only in the manner prescribed by Section 2703.13, Revised Code, which provides as follows:

“When the defendant is a minor the service of summons must be upon him, and also upon his guardian or father or, if neither can be found, upon his mother, or the person having the care of such infant, or with whom he lives. The manner of service must be the same as in the case of adults, and shall be made on such persons in the order named in this section.”

The defendant William J. Corson, Jr., a minor, was, within the two-year statutory period for bringing the action, sued and erroneously served as an adult, and William J. Corson, Sr., was joined as a codefendant but was not named as father or guardian of the minor. There was no valid or effective issuance or service of summons on a minor within the two-year period.

The statutory requirements were not complied with within the two-year period, and, since a minor cannot waive the statutory requirements, the answer filed by defendants cannot constitute a waiver of failure of service.

Judgment affirmed.

Taft, Matthias, Herbert and Peck, JJ., concur. Weygandt, C. J., Zimmerman and Bell, JJ., dissent.