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McConville v. Jackson Comfort Sys.6/22/1994
intiff does not know the name of a defendant, that defendant may be designated in a pleading or proceeding by any name and description. When the name is discovered, the pleading or proceeding must be amended accordingly. The plaintiff, in such case, must aver in the complaint the fact that he could not discover the name. The summons must contain the words 'name unknown,' and a copy thereof must be served personally upon the defendant."
"Civ.R. 15(D) specifically requires that the summons [of the original complaint] must be served personally upon the defendant." Amerine v. Haughton Elevator Co. (1989), 42 Ohio St.3d 57, 58, 537 N.E.2d 208, 209. In the prior action, there was never any personal service of the original complaint. Service of the amended complaint was accomplished by way of certified mail. That amended complaint was filed beyond the expiration date of the statute of limitations. Thus, the specific requirements of Civ.R. 15(D) and 3(A) having not been met, McConville did not properly commence the prior action against Stamm Contracting within the time allowed by the applicable statute of limitations. The trial court, therefore, did not err in granting Stamm Contracting summary judgment in this action.
The third assignment of error is overruled.
The judgment of the trial court is affirmed.
Judgment affirmed.
REECE, P.J., and QUILLIN, J., concur.
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