Varno v. Bally Manufacturing Co.

Clifford F. Brown, J.,

dissenting. I concur in the comprehensive and accurate analysis of the applicable law contained in the dissenting opinion of Chief Justice Celebrezze. This decision today which results in dismissal of the case on procedural grounds only is another example of many unjust recent legal precedents fashioned by this court which dispose of cases on procedural technicalities rather than upon resolving the rights of the parties by trial on the merits through application of the substantive law. Cf. Caruso-Ciresi, Inc. v. Lohman (1983), 5 Ohio St. 3d 64, dissent at 67-68; Sizemore v. Smith (1983), 6 Ohio St. 3d 330, dissent at 334-338; Perotti v. Ferguson (1983), 7 Ohio St. 3d 1, concurrence at 3-4; Maryhew v. Yova (1984), 11 Ohio St. 3d 154, dissent at 159-162; First Bank of Marietta v. Cline (1984), 12 Ohio St. 3d 317, dissent at 318-319.

The Rules Advisory Committee should study the decision of this court today with a view toward clarifying the language of Civ. R. 15(D) and 3(A), so that plaintiffs, upon learning the true names, identities and addresses of defendants sued by fictitious names before the statute of limitations has run, may validly serve such defendants with summons under Civ. R. 3(A) within one year after filing a complaint.

Therefore, I dissent.