Pierce v. Johnson

• Decision Date: 06 December 1939
• Docket Number: 27527.
• Citation: 136 Ohio St. 95,23 N.E.2d 993
• Parties: PIERCE v. JOHNSON.
• Court: Ohio Supreme Court

23 N.E.2d 993

136 Ohio St. 95

PIERCE v. JOHNSON.

No. 27527.

Supreme Court of Ohio

December 6, 1939

Syllabus by the Court.

1. A person having an unliquidated claim for damages arising out of tort is a creditor within the meaning of Section 10509-112, General Code, requiring presentation of claims by creditors to the executor or administrator within a specified time.

2. An unliquidated claim for damages arising out of tort does not fall within the exception contained in Section 10509-112 General Code, pertaining to contingent claims; and suit thereon must be instituted within two months from the date of receipt of actual notice of disallowance of such claim by the executor or administrator, or be forever barred under the provisions of Section 10509-133, General Code.

This case originated in the Common Pleas Court of Lucas county.

A collision occurred on August 17, 1936, between an automobile operated by the appellant, William E. Pierce, and one operated by John J. Johnson, now deceased, which resulted in injuries to the appellant, for which he seeks damages.

The petition of the appellant alleges that Harry R. Johnson is the duly appointed, qualified and acting executor of the estate of John J. Johnson, deceased, having been appointed by the Probate Court of Ottawa county, Ohio, on January 17 1937; that on the 4th day of February, 1937, the appellant presented a proof of claim to the appellee, as executor of the estate of John J. Johnson, in the sum of $10,000 representing 'a contingent, unliquidated claim' for damages resulting from the negligent operation of an automobile driven by John J. Johnson, deceased, and that this proof of claim was rejected by the appellee in his capacity as executor on the 27th day of February, 1937.

The petition further alleges that on the 13th day of May, 1937, the appellant presented to the appellee an amended proof of claim in the sum of $5,000, for damages resulting from the same accident that formed the basis of the first proof of claim; that this amended proof of claim has never been either allowed or rejected by the appellee executor.

The balance of the petition is devoted to allegations of negligence of the decedent, and claims of damages resulting therefrom, in the general form of such petitions, but the details of the claims of the appellant are not important to the present question.

The transcript of the record of the Common Pleas Court shows that the petition was filed and precipe issued for summons August 5, 1938, and that service on the appellee was secured August 8, 1938.

The appellee, Harry R. Johnson, executor of the estate of John J. Johnson, filed a demurrer to the petition on the ground 'that it appears upon the face of the petition that the action was not brought within the time limit for the commencement of such action.'

The Court of Common Pleas sustained the demurrer, and the appellant not desiring to plead further, the court dismissed the appellant's petition and awarded the appellee his costs. This judgment was affirmed by the Court of Appeals of Lucas county. The cause is now before this court following the allowance of a motion to certify the record.

Charles J. McLaughlin, of Toledo, for appellant.

Denman, Miller & Beatty, of Toledo, for appellee.

DAY Judge.

The sole question presented by the demurrer is whether Section 10509-133, General Code, Fixing the period of limitation for the commencement of actions on claims disallowed by an executor or administrator, applies to unliquidated claims for damages arising out of tort.

The appellee contends that since the action was not commenced within two months after February 27, 1937, the date upon which the claim was rejected, it is barred by the provisions of Section 10509-133, General Code.

The appellant contends, however, that since his claim arises out of tort, it is a contingent claim; that under the provisions of Section 10509-112, General Code, a contingent claim is not required to be presented to the executor; that his presentation of it and its rejection were, therefore, of no legal effect and that Section 10509-133, General Code, does not apply.

Section 10509-112, General Code, reads: 'Creditors shall present their claims, whether due or not due, to the executor or administrator within four months after the date of his appointment. Such executor or administrator shall allow or reject all claims, except contingent claims, within thirty days after their presentation. Any claim presented after the time herein provided shall not prevail as against bona fide purchasers or as against executors and administrators who have acted in good faith, or against a surviving spouse who has made the election to take under the will or at law, and, except as to negotiable instruments maturing subsequent to the expiration of such time, any such late claim shall not prevail as against bona fide distributees.' (Italics ours.)

Section 10509-133, General Code, reads: 'When a claim against the estate of a deceased person has been presented to the executor or administrator, and has been rejected by him in whole or in part, but not referred to referees, or if a claim has been allowed by the executor or administrator...