Wilkins v. Philips

3 Ohio 49

• Court: Ohio Supreme Court
• Decided: December 15, 1827
• Status: Published

Opinion

By the Court :

The case of Marstiller and others v. McLean, 7 Wheaton, 156, was decided upon the authority of the case of Perry and others v. Jackson and others, 4 Term, 516. In the latter case, Lord Kenyon asserts, that it is the first time the question had been brought up for decision, whether, where the saving clause of the statute of limitations protected only a part of those joined in the action, all the plaintiffs could claim its protection. It is decided against the protection, but upon grounds by no means satisfactory to us. The case was one of partnership, which, we think, was sufficient, ot itself, to have warranted the decision made. This is in part relied upon, and the decisjon is in part put upon the ground of the grammatical construction of the statute. The Supreme Court of the United States ground themselves upon this authority. Highly as we respect the opinions of. this tribunal, we can not adopt them, in the construction of our own statutes, where they are at a variance with our own judgments. We consider the reasoning of the courts of Connecticut and Kentucky, cited by the other side, as'more consonant to the general advancement of justice. It is our opinion that if any one of the parties, who sue a writ of error, is within the proviso that takes the case out of the statute of limitations, the case is saved for all the parties. The demurrer to the replication is overruled, and the cause remanded for further proceedings.