Summary
In Cero Realty, the plaintiff dismissed its action after its petition had twice been struck down on the defendants' demurrers.
Summary of this case from Chadwick v. Barba Lou, Inc.Opinion
Nos. 36360, 36361, 36362 and 36363
Decided June 1, 1960.
Limitation of actions — Section 2305.19, Revised Code — Plaintiff failing otherwise than on merits — Expiration of time for commencement of action — New action may be commenced, when — Statute remedial and liberally construed — Plaintiff fails otherwise than on merits, when — Demurrer to petition sustained on ground of misjoinder of defendants — Dismissed without prejudice.
1. Section 2305.19, Revised Code, providing that "in an action commenced, or attempted to be commenced * * * if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of * * * failure has expired, the plaintiff * * * may commence a new action within one year after such date," is a remedial statute and is to be given a liberal construction to permit the decision of cases upon their merits rather than upon mere technicalities of procedure.
2. Where the word, "merits," is used in speaking of the determination of an action upon the merits, it embraces the consideration of substance, not of form; of legal rights, not of mere defects of procedure or practice or the technicalities thereof.
3. Where, after an action has been timely commenced, the trial court sustains a demurrer to an amended petition on the ground of misjoinder of parties defendant, and plaintiff then dismisses the same without prejudice, he has failed "otherwise than upon the merits," and he may invoke the saving provisions of Section 2305.19, Revised Code, and start another action within one year of the dismissal of such amended petition. ( Siegfried v. Railroad Co., 50 Ohio St. 294, and Buehrer v. Provident Mutual Life Ins. Co., 123 Ohio St. 264, distinguished.)
APPEALS from the Court of Appeals for Cuyahoga County.
On February 9, 1956, plaintiff, appellee herein, the Cero Realty Corporation, claiming to have sustained damages to its premises from windstorms on February 11, 1955, and March 22, 1955, instituted an action for a declaratory judgment in the Court of Common Pleas of Cuyahoga County, naming four insurance companies as the principal defendants and seeking, among other things, to recoup its alleged loss from them by virtue of insurance policies it held and which were issued by such companies.
Each insurance company demurred to the petition on the ground that it was improperly joined with other defendants in one action, in other words, that there was a misjoinder of parties defendant. Such demurrers were sustained. An amended petition was then filed against the same defendants, and again, on September 4, 1957, demurrers thereto were sustained and the amended petition was dismissed by plaintiff without prejudice. Within one year of the dismissal, plaintiff filed four separate petitions embracing the same subject matter, in each of which one of the insurance companies was made a defendant. A demurrer was interposed to each petition by each insurer on the ground that plaintiff had failed to commence its action within one year of the time its cause of action accrued, as required by the policy of insurance involved. Plaintiff resisted the demurrers and relied on Section 2305.19, Revised Code, which recites in part:
"In an action commenced, or attempted to be commenced * * * if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of * * * failure has expired, the plaintiff * * * may commence a new action within one year after such date."
In each of the four actions, the court entered a judgment sustaining the demurrer and dismissing the petition without prejudice.
Four appeals, one in each case, were taken to the Court of Appeals on questions of law, where the judgments below were reversed and the causes remanded to the trial court with directions to overrule the demurrers to the petitions and to entertain further proceedings according to law.
Allowance of motions by the insurance companies to require the Court of Appeals to certify the records brings the causes here for review on their merits.
Messrs. Roemisch, Wright Zimmerman, for appellee.
Messrs. Arter, Hadden, Wykoff Van Duzer and Mr. Sheldon S. Reynolds, for appellants.
The sole question before us may be stated as follows:
Where, after an action has been timely commenced, the trial court sustains a demurrer to an amended petition on the ground of misjoinder of parties defendant and plaintiff then dismisses the same without prejudice, has the plaintiff failed otherwise than upon the merits, so as to enable him to invoke the saving provisions of Section 2305.19, Revised Code, quoted above, and start another action within one year of the dismissal of the amended petition?
The insurers answer this question against such right and rely basically on the case of Siegfried v. Railroad Co., 50 Ohio St. 294, 34 N.E. 331, wherein the syllabus reads:
"Where an action which has been commenced in due time, is dismissed by the plaintiff after the time limited for the commencement of such action has expired, a new action for the same cause, thereafter commenced, is barred, though commenced within one year after the dismissal of the former action. Such dismissal is not a failure in the action, within the purview of Section 4991 of the Revised Statutes [Section 2305.19, Revised Code]."
At the very end of the opinion in the Siegfried case, the following language appears:
"A dismissal by the plaintiff, involves no action of the court; it is a voluntary withdrawal of his case, and is not a failure in the action."
The holding in the Siegfried case has been expressly approved and followed by this court in two other cases, namely, Welsh, Admr., v. Pennsylvania Co., 53 Ohio St. 670, 44 N.E. 1150 (no written opinion), and Buehrer v. Provident Mutual Life Ins. Co., 123 Ohio St. 264, 175 N.E. 25.
Both the Siegfried and Buehrer cases are cited with apparent approval in the opinion in the case of Moherman v. Nickels, 140 Ohio St. 450, 457, 45 N.E.2d 405, 409, 143 A. L.R., 1174, 1178.
But, does the law as stated in the Siegfried case control here?
In the first place, it is established in Ohio that Section 2305.19, Revised Code, being a remedial statute, should be given a liberal construction to permit the decision of cases upon their merits rather than upon mere technicalities of procedure. Pittsburgh, Cincinnati, Chicago St. Louis Ry. Co. v. Bemis, 64 Ohio St. 26, 38, 59 N.E. 745, 748; and Greulich v. Monnin, 142 Ohio St. 113, 116, 50 N.E.2d 310, 312, 149 A.L.R., 477, 480.
And generally, where the word, "merits," is used in speaking of the determination of an action on the merits, it embraces a consideration of substance, not of form; of legal rights, not of mere defects of procedure or practice or the technicalities thereof. 57 Corpus Juris Secundum, 1070, Merits.
Analyzing the provisions of Section 2305.19, Revised Code, as it affects the instant cases, it contemplates (1) an action timely commenced, (2) failure of plaintiff in the action "otherwise than upon the merits," (3) expiration of the time limit for commencing the action at the date of such failure, and (4) the right of the plaintiff to commence a new action within one year of such failure.
Did plaintiff fail in the present instance "otherwise than upon the merits"? In sustaining demurrers to the original petition and later to the amended petition, the trial court informed plaintiff twice that it had misjoined parties defendant, and that it could not proceed further. Because of such action by the court, plaintiff suffered defeat in a procedural matter and dismissed its amended petition without prejudice, and within one year thereafter plaintiff filed new petitions in an effort to comply with the court's holding. When the demurrers to the petition and amended petition were sustained, we think this constituted a failure "otherwise than upon the merits" within the meaning and intendment of Section 2305.19, Revised Code, liberally construed, and that an entry of judgment by the court for defendants was not necessary to bring plaintiff within the terms of the statute.
It will be noted that in both the Siegfried and Buehrer cases, supra, the actions were voluntarily dismissed, and that such dismissals were not attributable to any adverse rulings by the court, as here. Consequently, the Siegfried and Buehrer cases are distinguishable from the instant ones in such respect.
With reference to statutes which provide that, when an action is commenced within the period prescribed by the statute of limitations, and the plaintiff suffers a nonsuit not involving the merits of the controversy, he may commence a new action within a prescribed time thereafter, though the period of limitation expired after the first action was commenced, the following comment appears in the annotation in 86 A.L.R., 1051:
"It has never been questioned that an involuntary or compulsory nonsuit is within the meaning of the statute and gives the plaintiff the right to bring a new action within the time prescribed thereafter, but the claim has been made that a voluntary nonsuit is not such a nonsuit as the statute contemplates. However, it has been held almost without exception that such a construction of the statute is too narrow, and that voluntary as well as involuntary nonsuits are within its beneficent operation."
See, also, Importers Exporters Ins. Co. v. Farris, 181 Okla. 339, 73 P.2d 831; Clark v. Newsome, 180 Ga. 97, 178 S.E. 386; and Thompson v. Farmers' Exchange Bank, 333 Mo., 437, 62 S.W.2d 803.
We find no error in the judgments of the Court of Appeals, and they are, accordingly, affirmed.
Judgments affirmed.
WEYGANDT, C.J., MATTHIAS, BELL and PECK, JJ., concur.
HERBERT, J., concurs in paragraphs one and two of the syllabus but dissents from paragraph three thereof and from the judgment.
TAFT, J., not participating.