
    Feigi v. Lopartkovich.
    (Decided October 21, 1930.)
    
      Mr. D. Perris and Messrs. Bernsteen £ Bernsteen, for plaintiff in error.
    
      Messrs. Stevens £ Stevens and Mr. Cyril J. Maple, for defendant in error.
   Washburn, J.

On October 19, 1927, Frank Feigi was injured in a collision between a motorcycle which he was riding and an automobile which was being operated by Steve Lopartkovich, a minor.

On November 23, 1927, Feigi sued Lopartkovich to recover for said injury, the petition containing no reference to the minority of Lopartkovich, and the service of summons being upon him as an adult.

A motion of said minor to the petition, without disclosure that he was a minor, was sustained, and Feigi filed an amended petition against Lopartkovich as an adult. Thereafter, on April 17, 1928, Lopartkovich filed a motion to quash the service of summons made upon him when the suit was begun, “for the reason that he is a minor under twenty-one years of age and service was not made on him as provided in Ohio General Code Section 11291.”

After a hearing, in which Lopartkovich testified, the court, on May 7, 1928, sustained said motion.

On August 20, 1928, Feigi filed a second amended petition, the defendant named in the caption therein being “Mary Linn, as guardian of Steve Lopartkovich, a minor.”

No service was made upon Lopartkovich, but, in obedience to the praecipe, a summons was issued and served by “handing to Mary Linn as guardian of Steve Lopartkovich a true and certified copy” thereof.

On leave granted, “Mary Linn, guardian of Steve Lopartkovich,” on August 29, 1928, filed an answer to said second amended petition, in which answer she admitted her guardianship and made general denial of the other allegations of the second amended petition.

Later the motion of Mary Linn for an order permitting a physical examination of Feigi was granted, and likewise her motion for security for costs.

On October 29, 1929, over the objection of Mary Linn, as guardian, Feigi was granted leave to file a third amended petition, and on November 6, 1929, more than two years after the accident, a third amended petition was filed; the same being against “Steve Lopartkovich, a minor.”

Except for the adding of the words “a minor” in the caption, the third amended petition does not differ materially from the original petition filed in the case, and, except for said reference in the caption, no mention is made of the fact that said Lopartkovich is a minor, and no mention is made of his guardian.

The praecipe filed with said third amended petition asked that a summons be issued for the defendant, and that a copy be served upon “Mary Linn, guardian of said defendant.” On November 8, 1929, service of summons was made upon Steve Lopartkovich, a minor, and upon Mary Linn, his guardian, by handing to each of them a true and certified copy of the summons with all indorsements thereon.

Thereafter a motion was filed by Mary Linn, as guardian, to strike said third amended petition from the files, which was overruled, and then, on December 17, 1929, Steve Lopartkovich applied for a guardian ad litem, and on said day his brother was appointed as said guardian ad litem.

On December 21, 1929, Steve Lopartkovich, through his guardian ad litem, filed a motion to dismiss the action, on the ground that it was barred by the statute of limitations; “said action not having been legally commenced within two years after the occurrence of said accident, as shown by the pleadings, sheriff’s return, and the court records in said case.” •

On February 7, 1930, said motion was sustained, and that ruling is challenged by the petition in error in this case.

There was no objection to the raising of the question of the statute of limitations in the manner in which it was raised, and counsel for Feigi expressly waived any such objection in the hearing of the cause in this court.

In determining the question presented, we have but to keep in mind certain propositions of law, which it seems to us are sound and well established, and which are, first, that a minor can be sued and served with process only in the manner set forth in the statutes of Ohio; second, that a minor cannot waive compliance with said statutes; third, that, if the suit in question was not commenced within two yehrs after the date of the accident, it is barred by the statute of limitations; and, fourth, that, regardless of when a petition is filed, a suit is not “commenced” until a summons is issued which is thereafter properly served.

' The original petition was against Lopartkovich as an adult, and there was no service of summons upon him as a minor; his taking leave to plead and filing motions did not enter his appearance, because as a minor he could not waive the service of summons required by the statute; the amended petition was the same as the original petition against Lopartkovich as an adult, and no service of summons, either as a minor or an adult, was made thereunder; such service as there was upon the original petition was quashed and must be considered thereafter as though 'it had never been made; the second amended petition was not against Lopartkovich either as a minor or as an adult, but, as stated in the caption and in the body of the pleading, was against his guardian, “Mary Linn,” and the service of summons, as requested in the praecipe, was made upon Mary Linn, guardian, there being no service upon Lopartkovich. The answer filed by her to said second amended petition, and the motions filed by her for security for costs and for a physical examination, did not operate to waive the statute requiring service upon a minor, first, because the minor was not made a party to the second amended petition; and, second, because the guardian was without authority to waive service of summons upon the minor and enter his appearance to a suit to which the minor was not a party.

There was no joint liability, and indeed no liability on the part of the guardian; she was not even a necessary party; if the suit had been properly commenced against her ward, it would perhaps have been her duty, under Section 10933, General Code, to “appear for and defend, or cause to be defended” said suit, although Section 11252, General Code, requires the defense of an infant to be made by a guardian ad litem; but, the suit not having been properly commenced against her ward, she was without authority to waive service upon her ward or enter his appearance. Roberts, Exr., v. Roberts, Jr., 61 Ohio St., 96, 55 N. E., 411.

The second amended petition was apparently intended to supersede and take the place of the petitions theretofore filed, and, as has been said, was against the guardian only; but, if the original petition can be considered as a pleading in the case after the second amended petition was filed, then we have a petition against the minor, with no service upon him, and a petition against his guardian, upon whom service was made. That does not constitute the commencement of an action against the minor.

Such was the situation when, on November 6, 1929, more than two years after the accident, a third amended petition was filed, which petition was captioned against “Steve Lopartkovich, a minor,” and which did not mention the guardian. In accordance with the praecipe on said third amended petition, proper service was had upon Lopartkovich and upon Mary Linn, his guardian. It is conceded that in the third amended petition suit was properly commenced against Lopartkovich, a minor, and that the statutes were complied with as to service of summons in such an action.

Such suit, however, was “commenced” on the date of the issuance of the summons, which was more than two years after the accident, and from what has been said it is apparent that we are of the opinion that no suit was commenced against said minor before that date, and accordingly, all the facts being a matter of record in the files of the case, the trial court did not commit prejudicial error in making final disposition of the case on the motion by dismissing the action as against Steve Lopartkovich, a minor. The judgment is therefore affirmed.

Judgment affirmed.

Funk, P. J., and Pardee, J., concur.  