Opinion
No. 68-107
Decided November 27, 1968.
Service of summons — Minor defendant — Personal service or leaving copy at usual place of residence.
Service of process upon a minor defendant in a civil action for damages for personal injuries is properly made by delivering a copy of the summons, with indorsements thereon, to the minor defendant personally, or by leaving a copy at his usual place of residence. (Sections 2703.08 and 2703.13, Revised Code, construed and applied.)
APPEAL from the Court of Appeals for Hamilton County.
On June 25, 1960, John Thomas, as plaintiff, filed an action against one Harry Pape, a minor, for damages for personal injuries resulting from a collision on August 1, 1958, between the automobiles which each were driving. The negligence of Harry Pape in the operation of his automobile was alleged to have been the proximate cause of the accident.
Pursuant to the filing of a praecipe, the clerk of courts issued summonses directing Dan Tehan, sheriff of the county, to serve copies upon Harry Pape, a minor, and Gordon Pape, his father, at their common residence, returnable according to law. The sheriff, through his deputy, attempted service on the Papes at their residence address and, finding them away, returned the summonses on July 27, 1960, stating: "The within named defendant(s) not found in my county. Defendants are in Europe and Alaska." Copies of the summonses were not left at the Papes' residence.
The Papes returned to their residence on or about August 8, 1960. On October 6, 1960, alias summonses were issued, which appear in point of time, however, to have been issued after the two-year period of the statute of limitations, plus the 60-day period of the savings provision of Section 2305.17, Revised Code, as then in effect, had expired. A motion by the Papes to dismiss the petition on the ground that the action was not timely commenced was granted by the Court of Common Pleas on the ground that the Papes' absence from the county did not toll the statute of limitations, as residence service was available by virtue of Section 2703.13, Revised Code.
Plaintiff, John Thomas, then commenced the instant action against Sheriff Dan P. Tehan and the Fidelity and Deposit Company of Maryland, a corporate surety on the sheriff's official bond. The amended petition alleges that the sheriff, through his duly appointed and authorized deputy, "did negligently and improperly return the said summons"; "that said return was unlawful, false, fictitious and negligently made, in that on such date the said Harry Pape, a minor, and Gordon Pape, his father, did maintain their domicile and residence at 8725 Blome Road, Indian Hill, Ohio, and were amenable to lawful resident service of process at said address"; "that by reason of the failure of the said defendant, Dan Tehan, to faithfully perform and discharge his duties as sheriff of said county, in failing to execute a proper service of summons and return thereon, the statute of limitations was caused to run against the claim of this plaintiff in said action, and upon the filing of a motion to dismiss on said ground in said cause, by the said Harry Pape, the Common Pleas Court did so dismiss said action. By reason of the acts of the defendant aforesaid, plaintiff was caused to lose his cause of action for injuries received * * *."
Defendants' demurrer to the petition, and the motion to dismiss the amended petition, were each sustained and judgment was entered in favor of the defendants. The Court of Appeals affirmed the judgment.
The cause is before this court pursuant to the allowance of a motion to certify the record.
Messrs. Goldman, Cole Putnik and Mr. Douglas G. Cole, for appellant.
Messrs. Frost Jacobs and Mr. David D. Dodge, for appellees.
The single question for resolution, which is dispositive of this case, is whether residence service of process upon a minor alleged tortfeasor is proper within the purview of Chapter 2703, Revised Code. It appears that this question is an open one, although other service-of-process statutes controlling actions of a different character have been the subject of consideration by Ohio courts and legal authorities.
The operative sections within Chapter 2703 read:
Section 2703.13, Revised Code:
"When the defendant is a minor the service of summons must be upon him, and also upon his guardian or father or, if neither can be found, upon his mother, or the person having the care of such infant, or with whom he lives. The manner of service must be the same as in the case of adults, and shall be made on such persons in the order named in this section." (Emphasis added.)
Section 2703.08, Revised Code (relating to the manner of service):
"Service shall be made at any time before the return day, by delivering a copy of the summons, with the indorsements thereon, to the defendant personally, or by leaving a copy at his usual place of residence * * *." (Emphasis added.)
It is defendant-appellees' position that Section 2703.13, Revised Code, required personal service of the summons upon Harry Pape, the minor, and that in his physical absence from the county, residence service would have been of no avail and was, therefore, not required of the sheriff.
The rule of service of summons upon minors and adults, creating jurisdiction of the court over the person of a defendant, is defined by statute and is not the product of judicial construction. In comparing the words of the statutes with the persons and events necessary for jurisdiction, we find nothing requiring personal service of summons on either the minor son or his father. In fact, the clear import of the statutes is that a minor is properly served in the same manner as an adult, excepting only that another person must also be served, i. e., "his guardian or father, or if neither can be found, upon his mother, or the person having the care of such infant, or with whom he lives." Section 2703.13, Revised Code, supra. Residence service upon a minor (when properly made, cf., Farley v. Pickett, 177 Ohio St. 133; Sours v. State, Dir. of Highways, 172 Ohio St. 242) is sufficient when it gives him notice and opportunity to defend the suit. Krabill v. Gibbs, 14 Ohio St.2d 1. Under the sections of the Revised Code set forth above, it was, therefore, the duty of the sheriff, or his deputy, to make residence service upon each of the Papes when personal service was not possible.
See Section 2703.131, Revised Code, effective November 1, 1965; with respect to service of summons upon minors in motor vehicle actions.
It is suggested in argument that the plaintiff's action was lost due to his failure to check the sheriff's return and issue alias summons prior to the expiration of the savings period provided by Section 2305.17, Revised Code. This question, if it has merit, cannot be resolved in a ruling on demurrer to the petition.
The judgment of the Court of Appeals is reversed and the cause is remanded to the Court of Common Pleas of Hamilton County for further proceedings.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, SCHNEIDER and BROWN, JJ., concur.
DOYLE, J., of the Ninth Appellate District, sitting for HERBERT, J.