
    No. 68
    WELSH v. GUARINO
    Ohio Appeals, 8th Dist., Cuyahoga County
    No. 4715.
    December 24, 1923
    27, ACTION OR SUIT — Unless a failure to comply with GC. 11231 as to commencement of action appears conclusively on the face of the petition a demurrer will not be sustained.
    Attornys — S. V. McMahon and F. W. Zimmerman, for defendant; Ndman, Grossman, Buss & Holiday, for plaintiff.
   VICKERY, J.

Epitomized Opinion

First Publication of this Opinion

Action ñled in September, 1921, for* damages for assault and battery committed in February, 1921. The original summons and an alias summons were returned not found. A plurius summons was returned with service in October, 1922, more than one year after the alleged occurrence and more than 60 days after the first summons issued. Defendant filed a demurrer to the petition which was sustained in the Common Pleas. Plaintiff prosecuted error Held:

By 11231 GC. an action is deemed commenced if a diligent attempt to secure service is followed by service within 60 days. By 11228 GC. the time during which defendant is absent from the state or conceals himself is not to be computed as part of the time within which the action must be brought. The question whether 11231 GC. applied absolutely or whether it would be suspended by 11228 GC. is one which could not be determined from the petition. Therefore there- was error in sustaining ' the demurrer. Judgment reversed and remanded.  