
    No. 360
    JOHN WEENIK & SONS v. HORBALLY et al
    Ohio Appeals, 8th Dist., Cuyahoga county
    No. 4979.
    Decided April 25, 1924
    27. ACTION — Suit under mechanic’s lien law is commenced when summons is issued within statutory period, and service properly follows.
    Attorneys — A. P. Gustafson, for Weenik & Sons Co.; Niman, Grossman, Buss & Holliday, for Horbally, all of Cleveland.
   VICKERY, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

Weenik Co. did some work on Horbally’s property and filed mechanic's lien.Horbally served notice to bring suit on the lien under the statute which requires suit to be brought within 60 days upon notice being given. Suit was begun within 60 days and a precipe of summons was filed against Horbally but no service was had. Later a lien claimant filed a cross-petition and scured service on Hor-bally. The later then filed an answer in which it wias averred that he came in for the sole purpose of answering the cross-petition and not intending to enter his appearance. The trial court decided for Horbally. In affirming the judgment, the Court of Appeals held:

1. “Suit is commenced under our statutes when a summons has been issued within the statutory period, if it is followed by service within 60 days thereafter, unless such service is prevented by some of the exceptions set up in the statute, none of which appear in this case.”

2. By filing an answer and providing that their appearance was not entered generally, Horballys were not in court generally and did not enter their appearance so that plaintiff could avail itself of it.  