193 N.E.2d 305 | Ohio Ct. App. | 1963
This appeal comes to this court from a judgment entered against the plaintiff in the Bedford Municipal Court. The plaintiff alleges in her petition that she was injured as a result of an automobile collision, the automobile in which she was a passenger being struck by an automobile driven by Gustave F. Meifert. It is alleged that Gustave F. Meifert died February 6, 1961, and this action "is brought against Naomi I. Meifert as administratrix of the estate of said decedent." The collision in which plaintiff alleges that she sustained injury because of the alleged negligence of Gustave F. Meifert occurred August 6, 1960. Plaintiff's petition was filed June 21, 1961. The defendant's appointment as administratrix of her husband's estate was March 23, 1961. Service of summons (mail service) was returned on June 24, 1961, and the defendant, thereafter, requested and was granted at least one leave to move or plead. A demurrer filed by defendant challenging *296
the sufficiency of the petition was sustained by the court and an amended petition was filed on June 2, 1962. The amended petition, in addition to the facts set out in the petition, alleges that the action comes within the exception of subparagraph (C) of Section
"(C) For the recovery of a claim that would not be affected by the insolvency of the estate."
The defendant filed a demurrer to the amended petition, claiming: (1) The court is without jurisdiction of the person of the defendant; (2) there is a defect of parties defendant; (3) this action was not brought within the time limited by law for the commencement of such actions; and (4) the amended petition does not state facts sufficient to constitute a cause of action.
The brief filed in the trial court by the defendant urged only two of the grounds as those upon which she relied in presenting her demurrer. We will, therefore, conclude that the grounds not presented in the brief were abandoned. The defendant claims that the manner in which paragraph (C) of Section
The remaining contention is concerned with the question of whether or not the filing of a petition in court setting forth a cause of action on a claim of negligence against the estate of the deceased, which claim, under the facts as alleged in the petition, will not be affected by the insolvency of the estate, and which claim is based upon facts occurring prior to the decedent's death, together with the summons and a copy of the petition of said action being served upon the administratrix within four months of her appointment is, in fact, a compliance with the requirements of Section
Section
The trial court held, as shown by the journal filed for journalization September 1, 1962, in part:
"* * * The court finds amended petition is demurrable and further finds that it erred in ruling upon demurrer to the orginal petition in holding that said petition, as such, constituted substantial compliance with Section
The court was clearly in error in holding that the failure to plead the date of the appointment of the administratrix affected the sufficiency of the petition in stating a cause of action. The petition alleges that Naomi I. Meifert is sued as the administratrix of the estate of Gustave F. Meifert, now deceased. The petition charges that during his lifetime he caused plaintiff's injury by certain acts of negligence. The defendant, after being served with summons, was, upon her request, granted leave to move or plead. While the petition might have been subject to motion to make definite and certain by setting forth the date of the appointment of the administratrix, it was not subject to demurrer upon this claim of the defendant.
We, therefore, address our attention to the single claim remaining — that is, whether or not the filing of an action against the administratrix where summons is served upon her as provided by law, together with a copy of the petition in which the *298
address of the plaintiff is clearly set out and the facts upon which the action is based are pleaded, all of which took place prior to the four-month period for filing a claim after the appointment of this defendant, it being further alleged that the action comes within the exception of subparagraph (C) of Section
Our attention has been called to the case of Benson, Admx.,
v. Rosine,
"1. The filing of a cross-petition for a money judgment in an action by an administrator is not a presentation of the asserted claim to the administrator as required by Section 10509-112 [Section
"3. A cross-demand in an action by an administrator may be pleaded as a defense to the extent it may be deemed to compensate the claim sued upon by the estate even though it has not been presented to the administrator for allowance."
That action was one based on a claimed balance due under a contract between the defendant and the decedent. The cross-petition was for the return of some part of the payments made under the contract alleging non-performance, in part, by the decedent. The court, in sustaining the demurrer, as indicated above, held that the filing of the cross-petition before the period for filing claims against the estate had passed (four months from the appointment of the administrator) did not comply with Section 10509-112, General Code (Section
The Benson case, insofar as it seems to hold that a cross-petition seeking a judgment against the estate of the deceased filed in a case instituted by the administrator, which cross-petition was filed and served on such fiduciary prior to the expiration of four months from the day of his appointment, was not, in fact, a presentation of a claim as required by Section
The case of National-Ben Franklin Fire Ins. Co. v.Woolcott,
The cases of In re Estate of Sarver,
Note should be made of the fact that, effective September 16, 1957, Section
"Nothing in this section or in Section
This amendment must be interpreted to mean that an action can be brought against the fiduciary of an estate without presentation where the claim is covered by insurance which requires the insurance company to pay any liability admitted or established by suit regardless of the death of the insured. It is also apparent that a distinction was made between a liability covered by insurance and one that is not. The provisions of this amended section establish the public policy of the state on the right to bring action against a fiduciary in some cases and, although its provisions were not effective until after this action was filed by the plaintiff, a court in considering questions of like character should not disregard the purpose to be accomplished when the amendment becomes effective. Nor should a court by interpretation add to or increase the conflict clearly found in these sections.
In the case of Simmons v. Bartley, Admr., 86 Ohio Law Abs., 321, 177 N.E.2d 77, the Court of Common Pleas of Franklin County had for consideration facts almost identical with those of the case here being considered. The second North Eastern Reporter headnote provides:
"2. The institution of a suit against an administrator, within four months of his appointment, causing summons to be issued on such administrator, together with a copy of the original petition, in an action for the recovery of a claim that would not be affected by the insolvency of the estate and therefore not within the prohibition against bringing suits against the administrator within the nine months period after his appointment, constitutes a substantial compliance with the provisions of Section
We are in complete accord with the holding in this case and, therefore, hold that the court was in error in sustaining the defendant's demurrer.
The judgment is reversed and the cause remanded with instructions *302 to overrule the demurrer and for further proceedings according to law.
Judgment reversed.
SILBERT and ARTL, JJ., concur.
SKEEL, C. J. This court, on its own motion (sua sponte), finds that its decision in this case is in conflict with the decision of the Court of Appeals for Lucas County (Sixth Appellate District) in the case of Benson, Admx., v. Rosine,
In certifying the case for conflict, it is my purpose to state a proposition of law clearly presented by the undisputed facts of this case. It is my conclusion that the filing of the action against the administratrix and completing service of summons as required by law, which included delivery to her of a copy of the petition within four months of her appointment as such fiduciary, constituted a presentation of the plaintiff's claim against the estate of Gustave F. Meifert as required by Section
Section
The conflict of rights and confusion of interests created by these statutes should not be increased by judicial decision. All that Section
The great weight of authority supports this conclusion. In 34 Corpus Juris Secundum, 159, Executors and Administrators, Section 396, "Effect of Suit on Claim," it is said:
"Although there is authority to the contrary, it has been held that the commencement of a suit and its continuous prosecution obviates the necessity of presentation * * *."
There are a number of citations under this statement of the applicable law on page 160. *304
In 21 American Jurisprudence, 577, Executors and Administrators, Section 345, it is said that the institution of a suit against an executor or administrator is generally considered a sufficient presentation of the claim of the plaintiff to take it out of a statute of nonclaim, especially where a copy of a verified complaint, containing all of the averments required in a regularly presented claim, is served on the fiduciary within the terms prescribed. There are no requirements in Section
This view that the effect of instituting a cause of action against an executor or administrator is sufficient to constitute a presentation of a claim against an estate, if filed within four months of the fiduciary's appointment as provided by Section
A journal entry may be entered ordering this case certified as in conflict with Benson, Admx., v. Rosine, supra.
Cause certified.
SILBERT and ARTL, JJ., concur. *305