Fortelka v. Meifert, 38558
| Decision Date | 08 July 1964 |
| Docket Number | No. 38558,38558 |
| Citation | 27 O.O.2d 439,200 N.E.2d 318,176 Ohio St. 476 |
| Parties | , 27 O.O.2d 439 FORTELKA, Appellee, v. MEIFERT, Admx., Appellant. |
| Court | Ohio Supreme Court |
Syllabus by the Court
The filing of a petition against an administrator of a decedent's estate, setting forth a cause of action against the estate, within four months of the administrator's appointment and accompanied by service of summons and a copy of the petition upon the administrator, constitutes a valid presentation of plaintiff's claim to the administrator and meets the requirements of Section 2117.06, Revised Code. (Beach, Recr. v. Mizner, Exr., 131 Ohio St. 481, 64 N.E.2d 845, distinguished.)
Anna A. Fortelka sustained personal injuries on August 6, 1960, while riding as a passenger in an automobile which was involved in a collision in the city of Bedford Heights with an automobile operated by Gustave F. Meifert. Meifert died on February 6, 1961, due to causes entirely unrelated to the collision.
On March 23, 1961, Naomi I. Meifert was appointed by the Probate Court of Cuyahoga County, and qualified, as administratrix of the estate of her deceased husband, Gustave F. Meifert.
On June 21, 1961, Anna A. Fortelka, hereinafter referred to as plaintiff, without having previously filed her claim with the administratrix, herein referred to as defendant, instituted an action for money only against the defendant in the Bedford Heights Municipal Court to recover for her injuries alleged to have been sustained in the accident due to the negligence of defendant's decedent. The closing paragraph of the petition alleged:
'Plaintiff states that she has become informed that Gustave F. Meifert died on or about the 6th day of February, 1961 and this suit is therefore brought against Naomi I. Meifert, as administratrix of the estate of such decedent.'
Service of summons with a copy of the petition was made upon the defendant, the return being filed on June 24, 1961, and defendant demurred to the petition. The court sustained the demurrer finding as facts that, although the petition alleged facts which constitute a substantial compliance with the requirements of Section 2117.06, Revised Code, 'it is defective to the extent that it fails on its face to bring the plaintiff within the protection of the exception of subparagraph (C) of Section 2117.30 of the Ohio Revised Code.'
Thereafter, plaintiff filed an amended petition which differs from the petition only by the inclusion therein of the additional allegation: 'Plaintiff states that this is an action brough[t] within the protection of the exception of subparagraph (C) of Section 2117.30 of the Ohio Revised Code.'
Defendant demurred to the amended petition, and the court sustained the demurrer and entered judgment for the defendant.
The Court of Appeals reversed the judgment of the trial court and certified the record to this court upon the ground that its judgment is in conflict with the judgment of the Court of Appeals of the Sixth Appellate District in the case of Benson, Admx., v. Rosine, 76 Ohio App. 439, 64 N.E.2d 845, decided on June 11, 1945.
John M. Drain, Cleveland, for appellee.
Davis & Young, Cleveland, for appellant.
The question to be determined here is whether a petition in an action against an administrator, filed within four months of his appointment, which petition alleges facts occurring prior to the death of administrator's decedent and constituting a cause of action on a claim against the estate, and that such claim would not be affected by the insolvency of the estate, but does not allege prior presentment of the claim to the administrator--and proper service of summons with a copy of the petition is made upon the administrator--is good against a general demurrer.
Or the question presented may be alternatively stated: Does the commencement of an action against an administrator on a claim against the estate of administrator's decedent, within four months of his appointment and accompanied by proper service of summons with a copy of the petition upon the administrator, constitute a valid 'presentment' of such claim to the administrator and satisfy the requirements of Section 2117.06, Revised Code?
The determination of this question requires consideration of Sections 2117.06 and 2117.30, Revised Code.
Section 2117.06, Revised Code, in pertinent part provides:
Section 2117.30, Revised Code, in pertinent part provides:
'No suit shall be brought against an executor or administrator by a creditor of the decedent or by any other party interested in the estate until nine months from the time of the appointment of such executor or administrator * * * except in the following cases:
'* * *
'(C) For the recovery of a claim that would not be affected by the insolvency of the estate * * *.'
Section 2117.06 sets forth four requirements of creditors having claims against an estate, i. e., (1) presentment of the claim to the executor or administrator, (2) in writing, (3) within four months of the fiduciary's appointment and (4) the setting forth of the claimant's address in the claim.
In addition to those requirements, an additional requirement is imposed on plaintiff in the instant case, as a creditor, by the provision of subparagraph (C) of Section 2117.30, Revised Code, that no suit may be brought against an executor or administrator within nine months of the time of his appointment, except on a claim that would not be affected by the insolvency of the estate. Under the pleadings in this case, plaintiff has specifically brought herself within the exception of Section 2117.30, and defendant in her brief in this court concedes that Section 2117.30 is not now involved. There remains for determination only the question of whether plaintiff has satisfied the requirements of Section 2117.06, Revised Code.
The amended petition states 'that she has become informed that Gustave F. Meifert died on or about the 6th day of February 1961, and this suit is therefore brought against Naomi I. Meifert, as administratrix of the estate of such decedent.'
True, the petition does not state the date of the appointment of the administratrix. However, the administratrix, in her brief, says:
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