The opinion
APPLICATION FOR REHEARING
Decided May 1, 1940.
Keifer & Keifer, Springfield, for plaintiff-appellee.
Cole & Hodge, Springfield, for defendant-appellant.
BY THE COURT:
The above entitled cause is now being determined on appellee’s application for re-hearing. Accompanying the 'application is memoranda, together With numerous citations of authorities, all of which we have examined. We reiterate what we set forth in our original opinion that the issue of limitation of action pertains to the remedy, and, therefore, is controlled by Ohio law.
One of the controlling limitation features is a provision that where a contract of a foreign state is sued upon m Ohio the limitation statute of the place of contract will be the Ohio
limitation, provided such period of limitation is less than the Ohio statute.
Notwithstanding this provision, it must be understood that it is the Ohio law that controls. The mere fact that Ohio by reference, under certain conditions, adopts the law of a foreign state does not in any sense deny the principle of the application of Ohio law. It was our conclusion and determination that plaintiff in bringing his action in Ohio was proceeding upon a written contract. The statute of limitations of this state prescribes a certain period of limitation for action. The statutory law of Florida upon a written contract prescribed a shorter period of time; hence, the law of Ohio under this action prescribes a five year limitation.
It is quite true that we gave considerable weight to the annotations found in 109 A. L. R. 474, 488. We felt that the principle therein announced was analogous to the situation in the instant case, even though in most of the cases the courts were differentiating between what constituted sealed instruments in the state where the action was brought and the state where the action arose. If according to the law of the state where suit was brought it was first determined that tfie instrument sued upon was not according to the law of that state, an instrument under seal — it then determined that the action would be one on instrument in writing and controlled by the local statute. This is exactly what we determined in the instant case, although, due to the fact that Ohio does not recognize private seals, it was unnecessary for us to differentiate as would be the case in states having and recognizing private seals. All that was necessary for us to do was to determine that the action was one upon a written contract. That it was a contract under seal in the state of Florida would make no difference, since plaintiffs came into Ohio and sought relief under Ohio law.
Counsel makes a special plea for a remand for new trial rather than the entering of final judgment. This is for the purpose of permitting and inject-
*47 Counsel makes a special plea for a remand for new trial rather than the entering of final judgment. This is for the purpose of permitting and injecting into the case the issue that defendant was absent from the state of Florida, and, hence, the statute of limitations would not run.
We know of no authorities suggesting the duty of a reviewing court to remand for new trial for the sole reason of permitting and re-drafting their pleadings and raising new issues. We ¡think the rule of law is well recognized that parties must stand or fall upon the issues as made in their pleadings, and after full trial and reversal on review they will not be given the right to remand.
The application for re-hearing will be overruled.
HORNBECK, PJ. & BARNES, J., concur.
MONTGOMERY, J., dissents.