
    No. 795
    GASKINS, Admr., v. HAMILTON C. (Cam.)
    Ohio Appeals, 1st Dist., Hamilton County
    No. 2332.
    Decided Feb. 25, 1924
    725. LIMITATION OF ACTIONS — 1. Limitation of actions in wrongful death case qualifies the right.
    2. Failure to demiur or set up statute in answer does not constitute waiver.
    359. DEATH — Failure to make proper person defendant does not stay statute under 10773-1 GC.
    Attorneys — John W. Cowell and Alvin H. Hodges, for Gaskins; Charles S. Bell and Chester S. Durr, for Hamilton County Commissioners; Murphy & Joseph, for Village of Milford.
   HAMILTON, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

Gaskins was killed on Feb. 13, 1920. An action was commenced against the' Hamilton County Commissioners on March 23, 1920. On May 5, 1922, an amended petition was filed, making Milford Village a party defendant. .At the close of the evidence the court directed a verdict for the commissioners upon the ground that the defective roadway where decedent was killed was not within the jurisdiction of the commissioners, but within the jurisdiction of Milford.

The court then directed a verdict for the village upon the ground that the action was not commenced against it within the two year limitation period. This defense was not raised by demurrer or answer. In affirming the judgment of the lower court, the Court of Appeals held:

1. The two year limitation, is a restriction qualifying the right of action itself and not the remedy, and unless the action is brought within two years the right! has perished before the action was brought.

2. There was no Waiver of the -limitation by the failure of the village to demur to the petition or make the objection by way of answer.

3. Where a party brings an action for wrongful death but fails to make the person defendant until after the two year period of limitation has expired, the statute runs against him and he does not come within the provisions of 10773-1 GC.  