
    Frost et al. v. Blatz.
    
      Limitation of actions — Recovery on stock purchased upon fraudulent representations, barred — Petition filed, but summons not served, within four years — Statute not tolled by former action, when — Judgment for defendant where all facts appear upon record.
    
    1. Cause of action to recover purchase price of stock for fraudulent representations inducing purchase accruing on July 6, 1920, held barred by statute of limitations, where no service was made on summons in petition filed May 10, 1924, and summons issued December 31st was not served until January 3, 1925.
    2. Action not shown to have failed otherwise than on merits, and dismissed more than a year before issuance of summons in later action, does not prolong time for bringing suit.
    3. Where all facts relating to barring of cause of action by statute of limitation appeared on face of record, no prejudicial error can result from rendering judgment for defendant.
    (Decided May 10, 1926.)
    Error: Court of Appeals for Cuyahoga county.
    
      Messrs. Turney é Sipe, for plaintiffs in error.
    
      Messrs. Lamb, Vaughan & Lamb, for defendant in error.
   Richards, J.

This action was commenced for the purpose of recovering $1,312.50 paid by the plaintiffs on the purchase of stock in the Jones Gear Company on July 6, 1920. This petition alleges certain fraudulent representations which induced the plaintiffs, Edward J. Frost, and others, to purchase the stock, and avers that they were made by S. J. Rubin, who represented himself to be an employe of the Jones Gear Company, but who, in fact, was an agent of the defendant, Charles L. Blatz. A check for the amount of the money was delivered to Rubin, and the petition avers that while the money was still in the hands of the defendant, the plaintiffs made demand on him to repay the amount. The trial judge excluded all evidence under the petition, and rendered a final judgment dismissing the petition.

The petition is clearly one to recover for fraudulent representations averred to have been made by an agent of the defendant, and the cause of action is limited to the period of four years. The petition avers that the plaintiffs discovered the fraud immediately after the representations were made.

The petition was filed May 10, 1924, but no praecipe was filed, nor summons issued, until September 12, 1924, and no service was made on that summons. No other summons was issued until December 31, 1924, and that was served on January 3, 1925. It is plain, therefore, that the cause of action which accrued on July 6, 1920, was barred by the statute of limitations.

It is sought, however, to prevent the bar of the statute by furnishing the court data showing that a prior action had been brought in July, 1922, which was dismissed on September 12, 1923. The court is not entitled to consider this information, but, even if considered, it does not show that the prior action failed otherwise than on the merits, and that action would not, therefore, prolong the time for bringing the present suit. 'Moreover, the summons which was served on the defendant in the present action was not issued until more than a year after the dismissal of the former action. As all the facts relating to the barring of the cause of action appear upon the face of the record, it is clear that no prejudicial error could result from rendering a judgment for the defendant.

Judgment affirmed.

Williams and Young, JJ., concur.

Judges of the Sixth Appellate District sitting in place of Judges Levine, Sullivan and Vickery of the Eighth Appellate District.  