¶1 concurring. Draher v. Walters (1935), 130 Ohio St. 92, when combined with the much earlier, well-reasoned case of Bradford v. Andrews (1870), 20 Ohio St. 208 (see paragraph 1 of the syllabus thereof) upon which Draher heavily relies, stands for the following sound legal principle which is universally recognized.
¶2 Where a proceeding for a contest of a will is commenced within the statutory period of limitations, although only some of the necessary parties interested (R. C. 2741.-02) are made parties of record or served with summons *216 within the statutory period, notwithstanding that some of them are not made parties of record or served with summons until after the statutory period of limitations has expired, the action has been properly commenced in time. A dismissal of the petitions for procedural irregularities was reversed by the Ohio Supreme Court in both cases.
¶3Bradford and Draher, supra, are in accord with sound, elementary principles of justice, which keep squarely in focus that procedural and jurisdiction statutes are merely a path or avenue to reach a determination of a case on its merits, i. e., the quintessence of justice, by an application of the substantive law to the facts, viz., that the purported last will and testament is or is not the valid last will by reason of alleged fraud, forgery, duress, or otherwise based upon evidence adduced at a trial. This observation is not the whim or caprice of one appellate judge, but is a legal tenet or principle recognized by Ohio statutes and is repeatedly imbedded as a foundation in many decisions of reviewing courts in Ohio. R.. C. 1.11 (“Remedial laws … shall be liberally construed * * * to promote their object and assist the parties in obtaining justice.”) (Emphasis added.) R. C. 2309.58; Porter v. Fenner, 5 Ohio St. 2d 233 at p. 235; Van Meter v. Segal-Schadel Co., 5 Ohio St. 2d 185; Industrial Commission v. Musselli, 102 Ohio St. 10; Weirick v. Mansfield Lumber Co., 96 Ohio St. 386; Reily v. Whiteman, 69 Ohio St. 543; Goldenberger v. Ryan, 62 Ohio St. 643; McAllister v. Hartzell, 60 Ohio St. 69; Meisse v. McCoy’s Adm’r., 17 Ohio St. 225; Baldine v. Klee, 14 Ohio App. 2d 181.
¶4 Although the Bradford and Draher cases, supra, also are in accord with the universal and generally accepted rule that amendments to a petition or complaint do not relate back to the date of filing of the original petition or complaint where the statute of limitations had run against the new parties, but that such rule does not apply to a case where no judgment can be rendered until all interested and necessary parties are before the court. Morrisse v. Billau, 70 Ohio App. 215, 34 Ohio Jurisprudence 2d 617, Limitations of Actions, Section 141; cf. Civ. R. 3(A); Doe, ex dem. *217 Evans, v. Richardson, 76 Ala. 329; Green v. Clifford, 94 Cal. 49, 29 P. 331; Moody v. Wickersham, 111 Kan. 770, 207 P. 847, 24 A. L. R. 794; Casserly v. Wayne Circuit Judge, 124 Mich. 157, 82 N.W. 841; Niehaus v. C. B. Barker Constr. Co., 135 Tenn. 382, 186 S. W. 461; Dallas v. Morris, 120 Tex. 181, 36 S. W. 2d 702; Burkhardt Milling & Elec. Power Co. v. Hudson, 165 Wis. 412, 162 N. W. 429; 51 American Jurisprudence 2d 799, Limitation of Actions, Section 272; 54 Corpus Juris Secundum 314, Limitation of Actions, Section 276; 8 A. L. R. 2d 112; Fed. R. Civ. P. 15 (C).
¶5Bradford and Draher, supra, also recognized the legal requirement that a civil action, including a will contest proceeding, is commenced by the filing of a petition in the office of the clerk of the proper court and causing a summons to be issued thereon for at least one of the codefendants united in interest. See R. C. 2703.01 (formerly Gr. C. 11279), now controlled by Civil Rule 3(A), action commenced by filing a complaint if service is obtained one year from such filing; R. C. 2305.17 (formerly Gr. C. 11230) now controlled by Civil Rule 3(A); Cover v. Hildebran, 103 Ohio App. 413, paragraph 1 of the syllabus; Staley v. Scheck, 99 Ohio App, 242; Wilhelm v. Landt, 74 Ohio Law Abs. 180; 1 Ohio Jurisprudence 2d 311, Actions, Sections 40, 41.
¶6 The meaning of “commencement of action” as defined in R. C. 2305.17 (now defined by Civil Rule 3(A)) applies to the “shall be brought within six months” limitation for the commencement of a will contest action under R. C. 2741.09, Gravier v. Gluth, Exrx., 163 Ohio St. 232; Cover v. Hildebran, Exrx., 103 Ohio App. 413, at 415; Landrum v. Fulton, Supt. of Banks, 47 Ohio App. 376.
¶7Bradford and Draher, supra, recognized the universal and fundamental legal principle that an amended petition to which new parties defendant were added and through which such parties were served with process, relates back and has exclusive relation to the time of the commencement of the action (petition filed and process issued for one of multiple defendants), the rights of the parties being determined as of that time, provided no new or distinct cause of action is set forth in the amendment, Moher *218 man v. Nickels, 140 Ohio St. 450, paragraph 3 of the syllabus; Douglas v. Daniels Bros. Coal Co., 135 Ohio St. 641; Stauffer v. Isaly Dairy Co., 4 Ohio App. 2d 15; 43 Ohio Jurisprudence 2d 361, Pleading, Section 338; 123 A.L.R. 761, 768; 61 American Jurisprudence 2d 741, Pleading, Section 336, Doctrine of Relation Back; 71 Corpus Juris Secundum 583, Pleading, Section 276; Civil Rule 15(C); Fed. R. Civ. P. 15(C); cf. Burwell v. Maynard, 21 Ohio St. 2d 108.
¶8 However, after the well reasoned opinion and just result in Draher in 1935, the Ohio Supreme Court in a series of will contest cases became bogged down in a morass of hypertechnical niceties, subtle distinctions, divarication of decisions, causing a sea of confusion and completely disregarded one or more of the generally accepted legal principles of pleading and procedure above discussed. From 1950 to 1958 the Ohio Supreme Court dismissed for procedural reasons the will contest actions in the following cases: Peters v. Moore (1950), 154 Ohio St. 177; Bynner v. Jones (1950), 154 Ohio St. 184; Gravier v. Gluth, Exrx. (1955), 163 Ohio St. 232; Mangan v. Hopkins (1956), 166 Ohio St. 41; Fletcher v. Bank (1958), 167 Ohio St. 211. There is little, if any, value in trying to divinate the rationale, bifurcate their distinguishing features and' legal precepts or attempt to resuscitate or revitalize their arguably doubtful juristic foundation. Each of these decisions should be promptly overruled (as Mangan v. Hopkins, supra, has been overruled already in the Porter case, supra), for each of these aids some lawyers to use the courts to practice their art, skill and sport of gamesmanship. Courts exist for the purpose primarily of determining the substantive rights of litigants; viz., to administer justice and not to reward the lawyer more skilled in gamesmanship.
¶9 Fortunately for litigants the Ohio Supreme Court since 1958 has departed from the rationale of the cases from Peters to Fletcher, supra, discussed with disfavor in the preceding paragraph, and by resorting to sound legal principles, designed to surmount the forest of procedural *219 hurdles, has refused to dismiss will contest actions in the following cases: Abbott v. Dawson (1958), 167 Ohio St. 238; Porter v. Fenner, supra (overruling Mangan v. Hopkins, supra); and Hecker v. Schuler, 12 Ohio St. 2d 58. Such keen judicial perspicacity and circumspection is commendable. This is the judicial track on which we should continue in Ohio. Too often in the past cases have been dismissed in Ohio courts for trivial, procedural reasons, e. g., State, ex rel. Federal Home Properties, v. Singer, 9 Ohio St. 2d 95, and a host of dismissal of mandamus actions, see 43 Ohio Op. 2d 34; Mason v. Waters, 6 Ohio St. 2d 212; Wickham v. First Federal Savings & Loan Co., 177 Ohio St. 170.
¶10 Also, fortunately, the reversal of the judgment of dismissal in the present case can be based upon the similar facts and law in Porter v. Fenner, supra, supported by the reasoning and sound legal principles stated in the Bradford and Andrews cases, supra.