DISSENTING OPINION
By HURD, PJ(Dissenting):
The defendant is a man now aged twenty years and four months. At the time of the accident, March 16. 1952, he was regularly employed and was living with his wife and child in his own home and lacked six months of becoming 21 years of age. When the action was filed on May 21, 1952, he lacked four months of becoming of age. Thereafter, he applied for and secured two leaves to plead and then on July 24, 1952 filed his answer in which he did not raise the issue of his minority or any defect as to service.
On March 19, 1954, two years and three days after the cause of action arose, he entered his appearance as an adult by filing a motion to continue the cause. It was only when the case was selected to be sent to a trial room, more than a year and a half after defendant had become of age, that he filed his motion to dismiss which was overruled. Thereafter the *333cause went to trial and judgment was rendered on a jury verdict in favor of plaintiff.
Under the circumstances, the defendant by his course of conduct waived service of summons upon him as a minor and entered his appearance. See Miller v. Smith, 18 Abs 386; Hebert v. Francis, 40 Oh Ap 491.
In Templeman v. Hester, 65 Oh Ap 62, a case in many respects factually similar to the instant case, the court said:
“Ordinarily, the allegations of the answer determine the defense available to the defendant and if any defense is not pleaded it cannot be used, and frequently if it is not pleaded it is waived. That is true of the defense of the statute of limitations by express statutory provisions. ' If it appears on the face of the petition that the cause is barred, the defendant may demur on that ground. Sec. 11309 GC But a demurrer based on that defect in the pleading must be specific. Sec. 11310 GC. If it does not appear on the face of the petition that the cause is barred by lapse of time, the objection may be made by answer, but if it is not made in either way it is waived. Sec. 11311 GC.”
Sec. 11311 GC (now §2309.10 R. C.) reads as follows:
“When, on the face of a petition, no ground of demurrer appears, the objection may be taken by answer. If the objection is not made in either way, the defendant has waived it, except only that the court has no jurisdiction of the subject of the action and that the petition does not state facts which show a cause of action.”
The case of Kossuth v. Bear, 161 Oh St 378, relied upon by the defendant is not in any respect analogous to the instant case.
Upon trial the defendant admitted liability and judgment was entered upon a jury verdict in favor of plaintiff. There being no errors prejudicial to the rights of the defendant, the judgment for plaintiff should be affirmed.