
    Benjamin Burton v. The Buckeye Insurance Company.
    A policy of insurance contained a provision that no suit or action should be brought thereon unless “ commenced ” within twelve months next after the loss. A loss having occurred, the assured, within the time limited, filed his petition against the company in due form of law, and caused a summons to be issued and served in due time upon the company. But by mistake the name of another company, instead of that of the defendant, was inserted in the body of the summons, although the indorsement and entitling of the summons were correct, and in conformity with the petition. After service of this defective summons upon the defendant and after the expiration of the twelve months limited for bringing the action, the company voluntarily appeared in court, and moved to strike the plaintiff’s petition from the files, but made no motion to quash the writ or return. The plaintiff then, on leave of the court, amended the writ, so as to make it conform to the petition—Held, that the amendment was authorized by the code, and had the effect to make the action one brought within twelve months after the happening of the loss, within the meaning of the policy.
    Motion for leave to file a petition in error.
    . This was an action in the Court of Common Pleas of -Cuyahoga county, brought by Burton against the insurance company named, upon a policy of insurance. The policy contained a provision that no action should be maintainable thereon unless brought within twelve months next after the happening of the loss. Burton filed his petition, against the company within the time limited. The petition was in due form, properly setting forth the names of the parties, the tenor and effect of the policy, and the fact of the loss, with a prayer for relief against the company ; but by mistake of the attorney’s clerk, in the precipe for summons, the name of the “ State Eire Insurance Co.” was inserted instead of the “ Buckeye Insurance Co.” A summons was then issued by the clerk, properly indorsed, as being a summons in the action, but in the body of the summons following the mistake of the precipe, and commandr ing that the “ State Eire Insurance Co.” be summoned. This writ-was duly served by the sheriff upon the defendant, the Buckeye Insurance Co. After the expiration of the-twelve months limited for bringing the action, the Buckeye Insurance Co., by its attorney, appeared in court, and moved to strike the plaintiff’s petition from the files, for the reason that no summons had been served upon the company. This motion was overruled, and thereupon the plaintiff, by leave of the court, amended the summons so as to make it conform to the petition and the indorsements on the summons. The summons having been issued before the expiration of the twelve months limited by the policy, but not having been amended until after their expiration, the question presented to the court was whether the action could be maintained. The Common Pleas held that it could, and gave judgment for the plaintiff. The District Court held' otherwise, and reversed the judgment; and the plaintiff’ now seeks to reverse the judgment of the District Court.
    
      Willey, Terrell, and Sherman, for the motion :
    Claimed that if the summons was defective, the defect was-such as was curable by section 137 of the code, and the amendment related back to the time of the original filing. Irwin v. Bank of Bellefontaine, 6 Ohio St. 81.
    The suit to which this company was entitled, was one-subject in all respects to the lex fori. If, within the time prescribed, a suit was commenced in such a way as that,availing ourselves of the law of the forum in respect to-amendments it was made to hold, that is all the company can demand under the policy.
    But the service as made was perfectly good. Langmaid v. Puffer, 7 Gray, 378; Burnham v. Savings Bank of Strafford, 5 N. H. 573; Sherman v. Proprietors Conn.' River Bridge, 11 Mass. 337.
    Upon the subject of amendment of mistakes generally,, see Tidd’s Pr. 651; lb. 661; 9 Ohio St. 526; Arbuckle v. Bowman, 6 IowTa, 70; 6 Ohio St. 81; 9 Ohio St. 521; lb.. 526; PLeath v. Whidden, 29 Me. 108; Whittier v. Varney,. 
      10 N. H. 291; King v. Fox (Supreme Court of Pa.), Law :and Equity Rep. of January 26, 1876.
    
      R. P. Banney, also, for the motion.
    
      F. J. Hickman, contra :
    Urged that no summons was issued to, or served upon, 'the Buckeye Insurance Co., under section 20 of the code ; that the effect of the amendment must be restricted to, and operate from the time of its allowance, and can not have ■a retrospective operation. Biddlesberger v. Hartford Ins. •Co., 7 "Wall. 390; Grofford v. Gothron, 2 Snead, 492.
    The statute of limitations is not only a bar to the remedy, but it takes away a legal right; and where a defense under the statute of limitations has become complete, it is beyond the legislative power to destroy it. Atkins v. Hord, 1 Burr, 119; Stanley v. Karl, 5 Litt. 283, 284; McKinney -v. Springer ', 8 Blackf. 506; Stipp v. Brown, 2 Ind. 647; Wires v. Farr,2S> Yerm. 41; Holden v. James, 11 Mass. •396 ; Sprecker v. Wakely, 11 Wis. 432 ; Hill v. Kricke, 11 Wis. 442 ; Woart v. Winnick, 3 N. H. 473 ; Wright v. Oakley, 5 Met. 409.
    And if beyond the legislative power, certainly the Court of Common Pleas can not be vested with such sovereign power, by virtue of section 137 of the code of civil pro-cedure, authorizing an amendment of “ any pleading, process, or proceeding.”
   Welch, C. J.

The real question here is one of construction of the policy: what did the parties' mean by the word “ commenced,” in this limiting clause ? In common .parlance, a suit or action would be considered as “ commenced,” perhaps, when the first step is taken in court. 'This, under our law, is the filing of the petition. The proviso in the policy being in the nature of a penal provision, 'it is by no means clear to me that it should not be interpreted in that sense. If this is the true meaning of the parties, then admittedly the suit was commenced in time. But, admitting that such is not the true legal interpretation of the contract, and that the word “ commenced ” must have the meaning assigned to it by our code of civil procedure, still it seems to us that the action should be regarded as having been brought within the period limited. If the contract is to be interpreted in the light of the code,, it must be interpreted in the light of the whole code, and not merely of a single provision. If the parties are to be held as intending, by the commencement of the action, the issuance of a summons, they must also be held as intending that the summons, if defective in “form,” or by “ mistake,” might be amended under the 187th section of the code. That this section of the code is broad enough to cover and authorize the amendment, can not well be disputed. The ground assumed is, that although the amendment reaches back and validates the writ ab initio, so far as regards the remedy, effect can not be given to it to invalidate the contract, or cause of action. This is time. But the answer is, that the contract sued upon contemplates the amendment, and, in effect, stipulates that it may be made.

This view of the case renders it unnecessary to consider the question, whether the voluntary appearance of the defendant, and the motion made on its behalf to strike the petition from the files, without making any motion to quash the writ or return, was an appearance to the action, and, if so, what would be its effect upon the question oí limitation.

Motion granted, and judgment reversed.

White, Rex, Gilmore, and McIlvaine, JJ., concurred.  