
    Jonathan Meisse v. John McCoy's Administrator.
    The service of a summons on the return day is not void, but only voidable; and' if such service is, on motion of the defendant, set aside, the plaintiff may, under section 23 of the code, within the time therein limited, brine his ac~ tion anew, notwithstanding the time allowed for commencing the action may have expired between the time of instituting proceedings and the time- of setting aside the service.
    Motion for leave to file petition in error to reverse the judgment-of the district court of Boss county.
    The original action was upon the act of March 25,1851, entitled “ an act requiring compensation for causing death by wrongful act, neglect, or default.” S. & G. Stat. 1139,1140.
    The second section of the act provides that every action founded on it shall be commenced within two years after the death of the person for whose loss compensation is sought.
    The intestate, in this ease, died on the 28th of June, 1862.
    *On the 23d of June, 1864, his administrator filed a petition in the clerk’s office of the court of common pleas of Boss county, and caused a summons to be issued thereon. Service of the summons was made by the sheriff by delivering a copy thereof to the defendant on the 4th day of July, the return day. The return was in due form.
    At the November term, 1864, of the court, the defendant, by his counsel, filed a motion to set aside the summons, because it was-served on the return day; and the court, at the succeeding February term, granted the motion.
    On the 24th of February, 1865, more than two years after the death of the intestate, the plaintiff caused another summons to issue on the petition, which was duly served.
    The defendant answered, and, in one defense set up the limitation contained in the second section of the act as a bar. t
    To this defense the plaintiff replied, sotting up the facts before-stated in regard to the filing the petition, the issuing, service, return, and the setting aside the first summons ; and claiming that at-the time the first summons was set aside, his action had been commenced within the meaning of section 23 of the code ; and that by the action of the court, in granting the motion of the defendant, lie-had failed otherwise than upon the merits of his case; that he was-entitled to the benefit of the section of the code referred to ; and that his second summons had been issued and served in due timo.
    To this reply the defendant filed a demurrer, which was overruled ; and the trial resulted in a verdict and judgment for tha plaintiff.
    
      On error, tbe judgment was affirmed by tbe district court.; and to obtain a reversal of this judgment of affirmance, is tbe object of tbe present proceeding.
    
      S: h. Wallace, for tbe motion:
    1. Tbe summons first issued was not served within tbe time allowed by law, viz., before' the return day. Code, sec. 62.
    Tbe word “ shall,” in this section, is used in an imperative sense, and is not merely directory. It applies to tbe mode as well as to tbe time of service. 2 Bouv. Law Dic. 150.
    As to what is meant by 11 before the return day,” see 2 Bouv. Law *Dic. 475; 1 Bla. Com. 59, 89; 1 Term, 51; 6 B. & C. 717; Tidd’s Pr. 168; 2 Caine’s Cases, 243; Swan’s Stat. of 1841, p. 469; O’Conner v. Towns, 1 Texas, 107; Diltz v. Beigler, 1 Iowa (Greene), 164; Temple v. Casterns, 1 Iowa, 492; 4 An. U. S. Dig. 406; Barto v. Able, 16 Obio, 409; People v. Walker, 17 N. Y. (3 Smith) 502; 18 U. S. Dig. 393; Smith on Stat. and Const. Law, 736; Columbia Turnpike v. Haywood, 10 Wend. 422.
    As to the meaning of tbe word “ after,” see Bigelow v. Wilson, 1 Pick. 485 ; Jacobs v. Graham, 1 Blackf. 392; Rand v. Rand, 4 N. H. 269 ; 11 Mass. 285 ; 3 Penn. 200 ; 12 Mass. 403; 13 Mass. 556; 8 Mass. 453; 3 U. S. Dig. 518.
    See section 103 of the code, and compare it with section 62.
    It is true, proceedings under tbe code are to be liberally construed. But the requirements of section 62 must not be construed ii’w’&y.
    It is not all tbe same whether a defendant is served on tbe return day, or before. If be can be deprived of one day of tbe time for .answering, why not of two, and so on?
    The common law has but little to do with this question. Under it there was two rules — one requiring service before tbe return day, and the other allowing it on tbe return day. 1 Tidd’s Pr. 168; 3 Chitty’s Pr. 264.
    Schaeffer & Smith v. Waldo, Barry & Co., 7 Ohio St. 309, 310, shows tbe service in question to be defective, but that defect can be waived.
    The rule, as I claim it, is recognized in Robinson v. Orr et al., 16 Ohio St. 284.
    2. The suit was not' commenced, within tbe meaning of tbe code, within two years (S. & C. Stat. 1140) after tbe cause-of action accrued. The death took place June 28, 1862, and I claim that the suit was not commenced within the meaning of section 20 of the code, until the date of the summons issued, February 24, 1865. The suit was then barred by the statute. The supposed service of the first writ was a nullity; being made at too late a day, it, therefore, was no service. The defendant never entered his appearance in the case, and jurisdiction over him was acquired only by the service of the alias summons. S. & C. Stat. 949, 950. See also Code, secs. 6, 7, 8, *603; Codifiers’ Rep. 9, 232, 233; Fee v. Big Sand Iron Co., 13 Ohio St. 563; Robinson v. Orr et al., 16 Ohio St. 284.
    Section 23 of the code does not touch this question. That only applies where the action “ has been commenced in due time," and there has been a failure “ otherwise than upon the merits.”
    
      Milton L. Clarli, contra:
    1. The service upon the original writ was perfectly good, and the court erred in quashing the writ. Devoe v. Elliott, 2 Caine, 244 ; Vail v. Lewis et al., 4 Johns. 456; Smith v. Ware, 13 Johns. 257 ; 1 Tidd’s Pr. 168; Maud v. Barnard, Burr. 812, 813; 1 Swan’s Pr. & Prec, 115; 1 D. & E. 192; 16 E. C. L. 30; 3 Taunt. 403; 8 Taunt. 127; 1 Hill, 204; 1 Wend. 288.
    Section 62 of the code was not intended to change the well-settled rule that service might be made at ang time during the life of the writ. See 9 Ohio St. 387; 12 Ohio St. 144; 15 Ohio St. 368; Code Comm’rs’ Rep. 46.
    The objection to the service of the original writ has no merits. The defendant was not prejudiced by the service being made on the return day. That he would have one day more for preparation, is too trifling to be seriously considered.
    I do not concede that the service on the writ was even an irregularity. But if it was, the suit was clearly commenced; and by answering, the defendant waived the objection and submitted himself to the jurisdiction of the court, and can not now be permitted to allege want of jurisdiction. Fee v. Big Sand Iron Co., 13 Ohio St. 563, 565 ; Evans v. Iles, 7 Ohio St. 233; Marsden et al. v. Soper, 11 Ohio St. 503; Schaeffer & Smith v. Waldo, Barry & Co., 7 Ohio St. 309, 310.
    2. As to the alleged bar of the statute of limitations.
    
      The courts, do not favor-such a defense. Newman’s Adm’r v.. Ban, 18 Ohio, 240; Sheets v. Baldwin’s Adm’r, 12 Ohio, 120.
    For the purpose of saving the case from the statute of limitations, the date of the first writ may well be held to have been the commencement of the action.. The action was not within the code-so far as the question of limitation is concerned. The statute under which it was brought was passed prior to the code; and for the meaning of the word “commenced” *in the proviso of the-statute, we are to look to the law as it was settled and understood at the date of the statute. The settled rule was that the suit was-considered commenced from the issuing of the writ. Wright, 755..
    The limitation is not the limitation of the code. Sec. 8 of the Code. Section 20 of the code is not applicable here. See Code-,, sec. 17.
    The action having been “commenced,” and the plaintiff having failed otherwise than upon the merits, section 23 of the code applied, and gave the plaintiff below one year after such failure to commence again. Seney’s Code, 54; 4 Ohio St. 272; 11 Ohio St. 442; 12 Ohio St. 620.
    See also Code, secs. 2, 55, 60.
   White, J.

The error assigned on this motion arises on sections-twenty-three and sixty-two of the code.

Section sixty-two has reference to the service of* a summons, and provides: “ The service shall be by delivering a copy of the summons to the defendant personally, or by leaving one at his usual place of residence, at any time before the return day.”

Section twenty-three is as follows: “If an action be commenced within due time and a judgment therein be reversed, or if the-plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or if he die and the cause of action survive, his representatives may commence a new action, within one year after such reversal or failure.”

In our opinion the service of a summons on the return day is not void, but only voidable; and if such service is, on motion of the defendant, set aside, the plaintiff may, under section twenty-three, within the time therein limited, bring his action anew, notwithstanding the time allowed for commencing the action may have expired, between the time of instituting proceedings and the time of setting aside the service.

If the action had proceeded to judgment on the default of the •defendant, we do not think the judgment could have been treated ■as a nullity, the same as though there had been no service or no •summons.

*Th'e service was sufficient to give the defendant a status in the case, and to authorize him to waive the defect by answering to the merits, or, if ho choses to do so, to insist on the defect, and thus defeat the plaintiff otherwise than on the merits. But he could -not refuse to do either, and afterward, if judgment should be rendered against him, treat it as void.

We regard the defect in the service as an irregularity, which is defined to be: “ The want of adherence to some prescribed rule or mode of proceeding, consisting either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unseasonable time, or improper manner.” 1 Tidd’s Pr. (side) 512; Burrell's Law Dic.

That defects in the service of process are regarded as irregularities is apparent from what is said in Tidd, on (side) pages 161, 512, 514. On the page last named, it is said: “ In the king’s bench, it is -a rule to refuse motions to set aside process for irregularity, even though no new step has been taken in the cause, unless the defend-ant made his application in a reasonable time. But in the common pleas, a defendant may move to set it aside at any time before a new step is taken in the cause.” And on page 161: “Where the irregularity complained of is not in the process, but in the notice to appear thereto, or in the service of it, the rule should be to set aside such service, and not the process itself.” See also Whale v. Fuller, 1 H. Bla. 222; Osborne v. Taylor, 1 Chitty, 400; Young v. Wilson, 5 Taunt. 664.

Having regard to section 2 of the code, which provides that its provisions, and all proceedings underit, shall be liberally construed, with a view to promote its objects and assist the parties in obtaining justice; and to the object of section 23, the plaintiff’s case, in our opinion, came within the meaning of the section last named; and the court of common pleas did not err in overruling the •demurrer to the reply, nor did the district court in rendering a judgment of affirmance.

The motion, therefore, will be overruled.

Day, C. J., and Welch, Brinkeri-ioee, and Scott, XT., concurred.  