Reynolds v. Green

Ohio Superior Court, Cincinnati

Reynolds v. Green

1 Cin. Sup. Ct. Rep. 262

DecidedApril 15, 1871

StatusPublished

This text of 1 Cin. Sup. Ct. Rep. 262 (Reynolds v. Green) is published on Counsel Stack Legal Research, covering Ohio Superior Court, Cincinnati primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Reynolds v. Green, 1 Cin. Sup. Ct. Rep. 262 (Ohio Super. Ct. 1871).

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Opinion

Hagans, J.

By section 20 of the Code (2 S. & C. 949), “ an action shall be deemed commenced within the meaning of this title, as to each defendant, at the date of the summons which is served on him, or a co-defendant who is a joint contractor, or otherwise united with him in interest. Where service by publication is proper, the action shall be deemed commenced at the date of the first publication, which publication shall be regularly made.”

There is but one defendant, and no summons was served upon him. The first publication was made November 30, 1867. The cause of action accrued November 20, 1861, when the assessment was made on the defendant’s property, and the demand of the petition is for interest from that date. The city commissioner’s certificate is dated November 29, 1861; but that is conclusive only as to the amount and value of the work done. Ridenour v. Saffin et al., 1 Handy, 464.

It simply dispensed with other or further proof in those respects in the absence of fraud or collusion. It will thus [264]*264be seen, that the action was not commenced for more than Six years after tbe cause of action accrued.

In Espenschied v. Bloebaum, decided in this court about a year ago, the defense of the statute of limitations was by answer that the cause of action had not accrued within six years next before the commencement of the action, and the defense was held good on demurrer. The court said in that case, “ Although there does not appear to have been any statutory limitation to the lien sought to be enforced, we may well follow the rule prescribed as to the recovery of the supposed debt. We recognize the rule adopted by the Supreme Court in Longworth v. Hunt et al., 11 Ohio St. 194, where it is held that the limitation in such cases applies in equity as well as at law.”

The cases cited to us in the argument—2 Duer, 1; 2 Kernan, 140, and 2 Barr (Penn.), 437—were all cases under acts furnishing special limitations for this class of cases. On a review of these cases and the authorities cited to. us in Espenschied v. Bloebaum, we see no reason to change our opinion.

Judgment affirmed.

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Hagans, J.

By section 20 of the Code (2 S. & C. 949), “ an action shall be deemed commenced within the meaning of this title, as to each defendant, at the date of the summons which is served on him, or a co-defendant who is a joint contractor, or otherwise united with him in interest. Where service by publication is proper, the action shall be deemed commenced at the date of the first publication, which publication shall be regularly made.”

There is but one defendant, and no summons was served upon him. The first publication was made November 30, 1867. The cause of action accrued November 20, 1861, when the assessment was made on the defendant’s property, and the demand of the petition is for interest from that date. The city commissioner’s certificate is dated November 29, 1861; but that is conclusive only as to the amount and value of the work done. Ridenour v. Saffin et al., 1 Handy, 464.

It simply dispensed with other or further proof in those respects in the absence of fraud or collusion. It will thus [264]*264be seen, that the action was not commenced for more than Six years after tbe cause of action accrued.

In Espenschied v. Bloebaum, decided in this court about a year ago, the defense of the statute of limitations was by answer that the cause of action had not accrued within six years next before the commencement of the action, and the defense was held good on demurrer. The court said in that case, “ Although there does not appear to have been any statutory limitation to the lien sought to be enforced, we may well follow the rule prescribed as to the recovery of the supposed debt. We recognize the rule adopted by the Supreme Court in Longworth v. Hunt et al., 11 Ohio St. 194, where it is held that the limitation in such cases applies in equity as well as at law.”

The cases cited to us in the argument—2 Duer, 1; 2 Kernan, 140, and 2 Barr (Penn.), 437—were all cases under acts furnishing special limitations for this class of cases. On a review of these cases and the authorities cited to. us in Espenschied v. Bloebaum, we see no reason to change our opinion.

Judgment affirmed.

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1 Cin. Sup. Ct. Rep. 262, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reynolds-v-green-ohsuperctcinci-1871.

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