232 N.E.2d 663

ALAKIOTIS v. LANCIONE, EXR.

No. 22804Court of Common Pleas, Belmont County.
Decided May 17, 1966.

Limitation of actions — Will contest — Section 2741.09, Revised Code — Failure of action other than on merits — Savings clause — Section 2305.19, Revised Code.

1. An action to contest a will was unknown at common law and has been created by Section 2741.01, Revised Code.

2. The six-month period established in Section 2741.09, Revised Code, for the commencement of a will contest action is a part of the right of action.

3. The savings clause of Section 2305.19, Revised Code, for commencing a new action when a suit has failed otherwise than on the merits, is not available in regard to a will contest action.

Messrs. Thomas Thomas, for plaintiff.

Mr. A. G. Lancione and Mr. C. C. Sedgwick, for defendant.

MATZ, J.

This is a proceeding to contest a will of one Pete J. Vasilikos. This case is the second case filed to contest said will. The original case to contest said will was filed in due time by the same plaintiff on January 14, 1965, as case No. 22140 on the docket of this court. Summons was issued for each defendant and on the face of the record proper service was obtained. However, motion was filed by the defendant, Lancione, the executor of the last will of the decedent, to quash the service of summons, which the sheriff’s return showed was properly served upon him. However, it developed that the return of the sheriff was not in accordance with the facts and the court sustained a motion to quash service of summons upon said defendant, on that ground, the fact being, as disclosed by the evidence, that the return of the sheriff showing proper service of summons upon the defendant, Lancione, Executor, was false. It is the opinion of the court that that case failed otherwise than upon the merits.

“Where an action first brought is terminated through no

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fault or voluntary act of a party who had done all that is required to secure valid service of summons, but the service of summons is set aside by reason of a false return by the process server, of which falsity the party had no knowledge in time to rectify the error within the sixty days allowed by Section 11231, General Code (Section 2305.17, Revised Code), a new action may be commenced, by virtue of Section 11233, General Code (now Section 2305.19, Revised Code), within one year after the date such party fails otherwise than upon the merits.” (Mulcahy v Mutach, 51 Ohio App. 407.) (Matter in parentheses added.)

The Mulcahy case, however, was an action for personal injuries and the general statutes of limitation would apply. The question in this case, however, is whether or not the savings statute, Section 2305.19, Revised Code, applies to a will contest action where the statute granting a right unknown to the common law also provides for the limitation of time within which the action could be brought.

“The disposition of property by will, proceedings in probation thereof, and the right to institute and maintain an action to contest a will duly probated are all governed and controlled by statute.” (McVeigh v. Fetterman, 95 Ohio St. 292.)

Section 2305.19, Revised Code, provides, in part, as follows:

“In an action commenced, or attempted to be commenced, * * * or if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of * * * or failure has expired, the plaintiff * * * may commence a new action within one year after such date.”

Section 2741.01, Revised Code, provides for the contest of a will or codicil and reads as follows:

“A person interested in a will or codicil admitted to probate in the probate court, or court of common pleas on appeal, may contest its validity by a civil action in the court of common pleas of the county in which such probate was had.”

Section 2741.09, Revised Code, provides for the limitation of time within which such contest shall be brought and provides as follows:

“An action to contest a will or codicil shall be brought within six months after it has been admitted to probate. * * *”

Section 2107.23, Revised Code, provides, in part:

“If within six months after a will is admitted to probate no

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person files an action to contest the validity of the will, the probate shall be forever binding, * * *”

Other statutes provide where the record of the will is destroyed or where the will is lost, spoliated, etc. after it has been admitted to probate but before it has been recorded, certain proceedings may be had to restore the record. However, Section 2107.31, Revised Code, provides that such proceedings shall not extend the time for contesting validity of any will or for asserting rights thereunder.

Section 2305.19, Revised Code, is contained in the part of the Code providing for the general statutes of limitation. The statute for the contest of a will contains its own limitation, to wit: six months from the time of the probate of the will. The applicability of the savings statute to special statutory actions is discussed in 34 Ohio Jurisprudence 2d under Limitation of Actions, Section 153. In the text the observation is made that the statute has been applied to an action for wrongful death, the statute providing for such action containing its own statute of limitations. In support of this text the case of Meisse v McCoy’s Admr., 17 Ohio St. 225, is cited.

In the case of Collins v. Baltimore Ohio Rd. Co., the Common Pleas Court of Licking County, 11 O. N. P. (N.S.) 251, held that the savings clause of Section 11233, General Code (now Section 2305.19, Revised Code) did not apply to an action for wrongful death, basing its decision, in part, on the case of B. O. Rd. Co. v. Fulton, Admr., 59 Ohio St. 575. The court in the opinion in the Collins case quotes from the opinion in that case as follows:

“Much can be said in favor of the proposition that the provisions of Section 4991, Revised Statutes, do not apply to a case of this kind (Section 4991 is the saving clause). For whilst it may be admitted that the plaintiff failed in the circuit court otherwise than on the merits, still there is much reason and authority for saying that the limitation of two years, fixed for bringing an action for causing death by wrongful act, is a part of the right of action itself, and not merely a limitation of the remedy, and that the action can not therefore in any case be brought after the time limited has expired.”

“They cite a number of authorities here, and then say:”

“As apparently contra, see Meisse v. McCoy’s Admr.,

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17 Ohio St. 225, though the point was not made there. But as we do not dispose of the case on this ground, no further consideration will be given it.”

The court (in the Collins case) then observes as follows:

“They indicate what they possibly would do, but they did not do it. This court will be bound by the obiter in the 59 Ohio State, and we’ll give you gentlemen the benefit of an exception, and sustain the demurrer to this reply.”

It will be observed that shortly after this case was decided a new section was added to the wrongful death statutes, now Section 2125.04, Revised Code, which provides a savings clause in practically the same language as the general savings clause contained in Section 2305.19, Revised Code.

“Where a cause of action is created by a statute and is limited therein to a specific period, time is of the essence of the right created and there is no right whatever independent of the limitation, so that a lapse of the statutory period operates to extinguish the right altogether.

“Section 11233, General Code, which permits a new action to be begun after the plaintiff has failed otherwise than upon the merits, applies only to actions not otherwise limited by periods affecting the right of action and hence is not applicable to a suit on a contractor’s statutory bond which is limited by Section 2316, General Code.” (Rackle Sons Co. v. W. S. Indemnity Co., 54 Ohio App. 274).

In the case of Burnett v. New York Central Rd. Co., United States Circuit Court of Appeals for the Sixth Circuit, 332 F.2d 529, 28 O. O. 2d 469, the syllabus reads as follows:

“The three year period of limitation within which actions for damages under the Federal Employers’ Liability Act must be brought may not be extended by the Ohio Savings Statute. (Section 2305.19, Revised Code.)”

“Section 2305.19, Revised Code, providing that where an action is commenced or attempted to be commenced and is reversed or fails otherwise than on its merits and the statute of limitations has run, plaintiff may commence a new action within one year, must be read in conjunction with Section 2305.03, Revised Code, providing that a civil action, `unless a different limitation is presented by statute, can be commenced only within the period prescribed in Sections 2305.03 to 2305.22, inclusive,

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Revised Code, and when so read applies only to actions `not otherwise’ limited by periods affecting the right of action.” (Purtee v. General Motors Corp., 78 Ohio Law Abs. 92.)

From a reading of these cases and the authorities referred to in the opinions, the conclusion is inescapable that the savings clause of Section 2305.19, Revised Code, does not apply to a cause of action created by statute which is unknown to the common law and which in terms contains its own statute of limitation.

Counsel for plaintiff have cited the case of Hunt v Hunt, 2 O. N. P. (N.S.) 577, as sustaining the proposition that the savings clause of the statute is applicable to a will contest case. That case has apparently never been cited in a reported case and the great weight of authority seems to be that causes of action created by special statute which contain their own limitations of time within which a suit can be brought thereon are not saved by the provisions of Section 2305.19, Revised Code. The decision in the Hunt case is not in harmony with the decisions in the cases above referred to and in the opinion of the court the provisions of the savings clause of that statute have no application to a will contest case.

The Ohio cases are discussed in an annotation on the subject in 79 A. L. R. 2d, page 1328. The annotation ends with the following paragraph:

“Thus, apparently an earlier liberal trend in the Ohio cases, though confirmed by later statute with reference to wrongful death actions, has not been continued with reference to other kinds of statutory actions to which no renewal statute is specifically applicable.”

The motion to dismiss will be treated as a demurrer and as such will be sustained.

The entry: “Motion of the defendant, Clara Rigas, Branch C is treated as a demurrer and upon consideration said demurrer is sustained.”

Demurrer sustained.

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