Wetzel v. Weyant

323 N.E.2d 711, 41 Ohio St. 2d 135, 70 Ohio Op. 2d 227, 1975 Ohio LEXIS 436

Opinions

HebbeRT, J.

Appellant’s contentions, as set forth in the above statement of facts, have been previously ruled upon by this court. Appellant’s success in this appeal would necessitate the overruling of many prior cases upon the question¹; his second, and controlling, proposition of law urges us to so hold. The most recent of these decisions was handed down by this court only four years ago, and both the instant appellant’s arguments were discussed and rejected therein.

As stated in Seeley (26 Ohio St. 2d 61), at page 72, the judicial guide-line of stare decisis is not the sole precept which causes us to adhere to existing law in this ease. It must also be noted that the current interpretation of R. C. 2305.15 has remained unchanged by the General Assembly since at least 1947,² the year in which Common wealth Loan (148 Ohio St. 133), was announced. Furthermore, statutes of limitation are a legislative prerogative and their operation and effect are based upon important legislative policy. See Wyler v. Tripi (1971), 25 Ohio St. 2d 164, 172, 267 N. E. 2d 419. The Court of Appeals properly interpreted R. C. 2305.15, as it has been construed by this court to date, and its judgment is affirmed.

Judgment affirmed.

O’Neill, C. J., CoeRigan, Steen, W. Brown and P. Brown, JJ., concur.

Footnotes

1

See Stanley v. Stanley (1890), 47 Ohio St. 225, 24 N. E. 493; Commonwealth Loan Co. v. Firestine (1947), 148 Ohio St. 133, 73 N. E. 2d 501; Couts v. Rose (1950), 152 Ohio St. 458, 90 N. E. 2d 139; Meekison v. Groschner (1950), 153 Ohio St. 301, 91 N. E. 2d 680; Seeley v. Expert (1971), 26 Ohio St. 2d 61, 269 N. E. 2d 121.

2

As even a casual reading of the numerous and studiously prepared opinions -which have been written and adopted by our learned predeces sors on this court will show, the dissent’s interpretation of this statute is simply an exercise in judicial legislation.

When the dissent states that the result for which it has opted is the one “so clearly intended,” it either disregard's or has overlooked the legislative history of this enactment.

In 1853, the General Assembly enacted the forerunner of R. C. 2305.15, and the language was practically identical to that which exists today. 51 Ohio Laws 57, Section 21. At the same session, the General Assembly provided that an attempt to commence an action constituted its commencement, so long as service of process was accomplished within 60 days. 51 Ohio Laws 57, Section 20. (The portion of Civ. R. 3 quoted in the dissent merely extends that 60-day period to one year.) The 60-day period was likely considered quite short in that time of undeveloped ability to travel and communicate over distances, hence the disjunctive “or” between “depart” and “abscond or conceal,” and between “absence” and “concealment.”

Short of constitutional impingement, and none is presented to us, 122 years of nearly identical statutory language, buttressed by five consistent opinions from this court, should be more than enough to neutralize a temptation to rewrite the statute to better suit the facts at hand.