Lakeside & Marblehead R. R. v. Davis

1 Ohio Law. Abs. 388

• Court: District Court, N.D. Ohio
• Decided: March 6, 1923
• Docket: No. 11373
• Status: Published

Opinion

WESTENHAVER, D. J.

Epitomized Opinion

This is an action brought by the Lakeside '<! Marblehead R. R. Co. v. James C. Davis as Federé Litigating Agent based upon a transaction betweéi it and the Director General of Railroads during- th period of federal control. Plaintiff’s original petii tion was filed Feb. 28, 1922. Summons was issuéi on the same date and delivered to the marshall o: that date for service. The) petition was duly serve) on March 2, 1922. A demurrer to the petition wa-i sustained Sept. 25,1922. Plaintiff then filed a motioi on Feb. 21, 1923, supported by affidavit for leavi to file an amended petition. The affidavit set fortl that the plaintiff did not receive notice of the over ruling of the original petition. The defendari' objected on two grounds. First, that the reques for leave is out of rule and unreasonably delayed Second, that the cause of action stated in the origina petition was barred by the Statute of Limitation because the service was not had until after the tw) year period provided in the Federal Transportatior Act of 1920. Sec. 206 of the Federal Transportatior Act of 1920 was passed on Feb. 28, 1920, and th) two year period of limitation therein commenced t< run from the date of its passage. The plaintiff con tended that inasmuch as the summons was issue) in due time that the action was not barred. Th) court held:

1. Although the time for filing an amended peti tion had expired, leave to file an amended petitioi should and will be granted where it appears thatthi plaintiff did not receive notice of the overruling o: the demurrer to the petition.

2. In an action at law brought in a Federal Court the question of when an action is brought is to b¡ determined by the provisions of the state law ii which said Federal Court is located.

3. As GC. 11279 of Ohio provides that a civi action is commenced by filing in the office of th) clerk of the proper court a petition and causing i summons to be issued thereon, the present action ii to be regarded as brought from the date of the issu« of the summons even though it may not have beer delivered the marshal until one or two days later.