The facts are fully stated in the majority opinion.
The case of Case v. Smith, Admx., 142 Ohio St. 95,50 N.E.2d 142, in my opinion, is not factually identified with the instant case. It is true in both cases the heirs at law or next of kin commenced the action to contest the will against the sole beneficiary who was neither an heir at law nor next of kin of the decedent, and the administratrix in one and the executrix in the other, as parties defendant, and obtained service on these defendants within the time limitation required by law. However, in Case v. Smith, the heirs at law or next of kin entered the lawsuit as parties defendant; whereas, in the instant case, they entered as parties plaintiff.
It seems apparent therefore, in the case of Case v.Smith, that since no heir at law or next of kin was made a party defendant within six months from the date of probate of the will, no party defendant united in interest with the new defendants was in the case and no action with respect to them had been properly commenced as required under Section 12080, General Code (Section 2741.02, Revised Code), the Court of Common Pleas was without jurisdiction to proceed with the action. *Page 381
In the instant case, on the other hand, the new parties plaintiff were united in interest with the original plantiffs and the action was commenced in compliance with Sections 12087 and 12080, General Code (Sections 2741.09 and 2741.02, Revised Code), since it was instituted within six months after the date of probate of the will, with all classes of persons enumerated in the latter section made parties to the action either as plaintiffs or defendants, including the executrix.
The rule with respect to adding new parties plaintiff in a situation such as we have here is stated in 8 A. L. R. (2d), 28, paragraph (10), as follows:
"Where the attempt is made to add a new party plaintiff after the statute of limitations has run, the general rule is that where the original plaintiff seeks to enforce an independent right the amendment does not relate back and the defense of the statute of limitations is available against the added plaintiff, but that where the addition of the new party plaintiff is made necessary because of a failure in the first instance to join persons having a joint interest, the amendment relates back to the commencement of the original suit."
The Supreme Court of Ohio applied the principle herein contended for by plaintiffs, in the case of Snider's Exrs. v.Young, 72 Ohio St. 494, 74 N.E. 822, and states it in paragraph 1 of the syllabus:
"1. When some of the plaintiffs in a joint judgment are made parties defendant to a petition in error to reverse the judgment and their appearance in the proceeding has been effected by service of process or otherwise, within the statutory limit for commencing proceedings in error, the proceedings must be deemed commenced, not only as to such defendants, but also as to all other persons united in interest with them, so as to stop the running of the statute of limitations in favor of such other persons who are not made defendants."
See Baughman v. Hower, 56 Ohio App. 162, 10 N.E.2d 176.
The new plaintiffs herein were all united in interest with the original plaintiffs, and consequently there was no attempt on their part to enforce an independent right. Their rights were consonant with and identical to those asserted by the *Page 382 original plaintiffs in the petition filed by them in this case. It is fortunate for these original plaintiffs that they were able to obtain the consent of all the new parties to be made plaintiffs, because only by such procedure were they able in this case to bring them into the lawsuit, under authority of Section 11256, General Code (Section 2307.20, Revised Code); since, under the circumstances, they could not have been brought in as defendants after the lapse of six months from the date of probate.
Section 11256, General Code (Section 2307.20, Revised Code), reads:
"Parties who are united in interest must be joined, as plaintiffs or defendants. If the consent of one who should be joined as plaintiff can not be obtained, or, he is insane, and the consent of his guardian is not obtainable, or he has no guardian, and that fact is stated in the petition, he may be made a defendant."
The Supreme Court has held that rules of pleading not inconsistent with special statutes, are applicable in will contest cases. Morton v. Fast, Exr., 159 Ohio St. 380,112 N.E.2d 385, paragraph 1 of syllabus:
"The rules of pleading generally applicable in a civil action should be applied in a will contest except where they are inconsistent with special statutory provisions relating to such a contest."
It seems to me, therefore, that the trial court erred in holding that it was without jurisdiction to hear this case under the circumstances and facts therein, and that the judgment rendered by it should be reversed.