Summary
In Belpash v. Emerine, 119 Ohio St. 226, 162 N.E. 799, is found authority which indicates the employee's further remedy.
Summary of this case from Sunday Creek Coal Co. v. WestOpinion
No. 20948
Decided June 6, 1928.
Limitation of actions — Saving provisions apply — Section 11233, General Code — Demurrer erroneously sustained upon ground action not instituted within limitation — Recovery of money lost at gambling.
The benefits of Section 11233, General Code, inure to a plaintiff who has begun an action within the time limited by law for the commencement of such action, to whose petition a demurrer, upon the ground that it was not instituted within such time, has been erroneously sustained.
ERROR to the Court of Appeals of Lucas county.
The defendant in error, Edna Emerine, filed her petition in cause No. 91170 in the court of common pleas of Lucas county, Ohio, on February 21, 1923, alleging that she was the wife of Frank Emerine and that her husband lost at gaming between February 1, 1922, and January 13, 1923, a sum of money to certain defendants, named therein, and further alleging that the defendant the C. E. S. Realty Company was the owner of the real estate described therein and knowingly permitted its premises to be used for gambling purposes.
On December 3, 1923, an amended petition was filed, containing substantially the same allegations. Purported service of summons was made on the plaintiff in error Walter Belpash on February 27, 1923, and also on April 10, 1923. On April 11, 1923, the service made on February 27, 1923, was quashed and held for naught. On April 21, 1925, plaintiffs in error Walter Belpash and the C. E. S. Realty Company demurred to the amended petition upon the ground that the action was not brought within the time limited by law for the commencement of such actions. On July 17, 1925, the demurrers were sustained. The amended petition was dismissed and judgment rendered in favor of the demurrants for costs. Error was not prosecuted from such judgment and the same is now in full force and effect.
On September 24, 1925, the defendant in error filed her petition in cause No. 99880 in the court of common pleas of Lucas county, Ohio, which petition contained substantially the same allegations as those contained in the petition filed in cause No. 91170, and further alleging that the action was one of those provided for by Section 11233, General Code.
December 18, 1925, an amended petition was filed. April 15, 1926, a second amended petition was filed, to which the plaintiffs in error filed demurrers, on the ground that the action was not brought within the time limited by law for the commencement of such actions. The demurrers were sustained and the defendant in error prosecuted error to the Court of Appeals of Lucas county, which court reversed the judgment of the court of common pleas and remanded the cause, with instructions to overrule the demurrers ( 23 Ohio App. 311, 155 N.E. 249).
Trial was had in the court of common pleas; motions for directed verdict made by the plaintiffs in error at the close of plaintiff's case, and renewed at the close of all the evidence. A verdict was returned in favor of the defendant in error against the plaintiff in error Walter Belpash, and also against the defendant, Thomas O. Worland. Motion for new trial was overruled and judgment entered upon the verdict against plaintiff in error Walter Belpash, and against one of the defendants, Thomas O. Worland; and the judgment was declared a lien upon real estate of the plaintiff in error the C. E. S. Realty Company.
Error was prosecuted by plaintiffs in error to the Court of Appeals of Lucas county, and the judgment of the court of common pleas was reversed as to Thomas O. Worland and affirmed as to the plaintiffs in error. Error is prosecuted here by Walter Belpash and the C. E. S. Realty Company.
Mr. Daniel J. O'Rourke and Messrs. Lawton Saalfield, for plaintiffs in error. Messrs. Fritsche, Kruse Winchester, for defendant in error.
The sole question involved in this case is whether the sustaining of the demurrers in cause No. 91170 on July 17, 1925, was a failure upon the part of the defendant in error "otherwise than upon the merits," for if the failure was otherwise than upon the merits she was entitled, under the provisions of Section 11233, General Code, to institute a new action within the period of one year from the date of such failure.
The demurrers were filed and decided upon the ground that the action was not brought within the time limited by law for the commencement of such action, and, in the particular situation, were in effect demurrers upon the ground that the action was prematurely brought.
The issue determined by the court in deciding the demurrers was not that upon the facts stated in the petition there was no liability of the plaintiffs in error to the defendant in error by reason of the transactions therein set forth, but that the cause of action had not accrued at the time of the filing of the petition. While that court was in error in the sustaining of such demurrers, since the petition filed on February 21, 1923, alleged that her husband had lost to the plaintiffs in error, at gaming, between February 1, 1922, and January 13, 1923, and therefore would have admitted of proof of losses occurring prior to August 21, 1922, no motion to make definite and certain having been filed, the sustaining of such demurrers still amounted to a failure of the defendant in error other than upon the merits; and the fact that she did not prosecute error from such judgment is not significant. The right to prosecute error is a privilege, but, generally speaking, not a duty. The plaintiffs in error were not permitted to complain of such judgment, and the defendant in error was not required to complain thereof. By virtue of such judgment she was entitled to the favor extended her by Section 11233, and to bring her action within one year thereafter. The judgment of the Court of Appeals will be affirmed.
Judgment affirmed.
MARSHALL, C.J., ALLEN, KINKADE, JONES and MATTHIAS, JJ., concur.
DAY, J., concurs in the judgment.