
    No. 126
    SZYMANSKI v. DAVIS, Dir.
    No. 19551.
    Supreme Court
    On motion to certify.
    Dock. Jan. 9, 1926;
    
      4 Abs. 56.
    725. LIMITATIONS — If service is quashed and then an amendment to petition filed and service is then obtained after the two year statute of limitations prescribed by The Transportation Act of Congress has run, is such action thereby barred?
    Attorneys — C. C. Sedgwick, Bellaire, for Szymanski; N. K. Kennon, St. Clairsville, for Davis.
   Joseph Szymanski brought an action against James C. Davis, Director General of the United States Railroad Administration in the Belmont Common Pleas for loss of baggage shipped by the Baltimore & Ohio Railroad Co., under Section 206 (a) of the Transportation Act of Congress. The cause of action accrued on February 25, 1920 during the federal control, of railroads. The petition was filed December 24, 1921 and summons served on December 30; 1921 upon a ticket agent'.

On January 21, 1922 a motion to quash the service and return was filed, which was sustained on July 28, 1922, five months after the two year limitation period had expired, on the ground 'that the return did not recite that the ticket agent upon whom service was made was such employee “of The Baltimore & Ohio Railroad Company.”

On August 18, 1922, on leave of Court, an amendment to the petition was filed and on September 23, 1922 an alias summons was issued which was served on September 29.

After the overruling of a motion to quash and a motion to strike from the files, a demurrer was filed, which was sustained .on the ground that the action was barred by the federal statute of limitations. The Court of Appeals affirmed the ruling.

Szymanski, in the Supreme Court, contends:

1. That jurisdiction of the railway company was acquired and retained, notwithstanding defective return of summons.

2. That an action under the Federal Transportation Act is controlled by state statutes defining what shall constitute such commencement and a new action within a specified time after failure otherwise than on merits.

3. 11233 GC. is applicable when plaintiff fails because of defective return of service and operates to avoid the .dismissal of an action where motion to quash is sustained after limitation of action expires.

4, Amendment to petition after period limited by federal statute suspended limitation unless amendment states new cause of action.

5. Amendment to petition did not present a cause of action different from that originally stated.  