Vitt & Stermer, Inc. v. Steele

32 N.E.2d 445, 32 N.E. 445, 20 Ohio Law. Abs. 432, 4 Ohio Op. 484, 1935 Ohio Misc. LEXIS 996

• Court: Ohio Court of Appeals
• Decided: December 22, 1935
• Status: Published

Opinion

OPINION

By HAMILTON, J.

The claim of the plaintiff in error is that, having filed his bill of particulars in the Municipal Court and directing summons to issue, the service relates back to the filing of the bill and, therefore, his action was pending in the Municipal Court on October 17, 1934, and is prior to the commencement of the suit in the Common Pleas Court.

Sec 11230, GC, provides in part:

“An action shall be deemed to be commenced within the meaning of this chapter, as to each defendant, at the date of the summons which is served on him * *

This section of the code is made applicable to actions in the Municipal Court by virtue of the provisions of §1558-9, GC.

The record shows that the date of the summons served on the defendant was November 9, 1934. This, therefore, under the statute is the date of the commencement of the action. This was 11 days after the service of summons in the Common Pleas Court action. Under the statute, the case in the Common Pleas Court was filed October 29, 1934, and summons was served on that day. The cause of action was between the same parties and involved the same transaction. The Common Pleas Court had •jurisdiction and, therefore, precedence over the Municipal Court of Cincinnati, wherein all questions growing out of the transaction between the same parties may be litigated to completion.

The judgment of the Common Pleas Court, affirming the judgment of the Municipal Court of Cincinnati, is affirmed.

ROSS, PJ, and MATTHEWS, J, concur.