Ohio Court of Appeals, 1913

Badger v. Orr

Badger v. Orr
Ohio Court of Appeals · Decided March 15, 1913 · Iees, Marriott, Shields, Yoori
17 Ohio C.C. (n.s.) 312

Badger v. Orr

Opinion of the Court

Seventeen grounds of error are set forth in the petition in error as reasons for the reversal of the judgment. All the grounds of error set forth in the petition in error are not urged upon our consideration in presenting the case, but several of the grounds are insisted upon as reasons for a reversal of the judgment. One of the principal grounds relied upon by the plaintiffs in error is that the action of the. plaintiff below, the defendant in error, was barred by the statute of limitations as to time of bringing suit against administrators, namely within two years from the time of the appointment of said administrators and the giving of bond by said administrators.

Section 10746, General Oode of Ohio, among other things, provides:

“That no executor or administrator shall be held to answer to suit of any creditor of the deceased, unless it be commenced within eighteen months from the time of his giving bond except as hereinafter provided. A creditor whose cause of action accrues after the expiration of eighteen months from the time the executor or administrator gave bond, according to law, and before such estate is fully administered, may begin and prosecute such action within six months after the accruing of such cause and before the estate is fully administered. No cause of action against an executor or administrator shall be barred by lapse of time until the expiration of six months from the time it accrued.”

It is contended in this case that the plaintiffs in error were appointed administrators with the will annexed of Michael Badger, deceased, on March 5, 1909, and gave their bond and notice of their appointment within three months of the time of their appointment. On the 14th day of March, l9ll, the claim of the defendant in error was presented, duly verified, for an allowance, and on the 25th day of March, 1911, the claim *317was rejected by said administrators and tbeir rejection thereof endorsed thereon. As we have seen, on the 21st day of June, 1911, suit was brought by the defendant in error against said administrators. It is contended by the defendant in error that this statute of limitations does not control in this case.

The plaintiffs in error were appointed administrators with the will annexed of Michael Badger, deceased, but the appointment of such administrators was revoked by the probate court of said county on August 19th, 1909, and one Corwin D. Swan was, by said court, duly appointed and qualified as special administrator of said estate and acted as such from said date until the 19th day of February, 1910, when he was removed and the plaintiffs in error were reappointed, as administrators with the will annexed of said estate, and it is contended by the plaintiffs in error that the proceedings in the probate court for the removal and revoking of the appointment of said administrators upon -the appeal of the cause to the court of common pleas, only suspended the office of administrator so held by them and upon the reappointment of said administrators by the court of common pleas, they were restored to their office and duties as such administrators, and that during the interim between the time of the removal and the reappointment, the statute of limitations, requiring the presenting of claims against the estate to the administrator, was not suspended but remained in full force.

We can not agree with this contention or construction of the statute, but rather think that Section 10753, General Code, does control, which provides that “when an executor or administrator dies, resigns, is removed or his letters are revoked or his powers have ceased, without having fully administered the goods and estate of the deceased, and a new administrator of the same estate is appointed, the time allowed to the creditors for bringing their action shall be enlarged as follows, to so much of the eighteen months provided for the limitation of the action as expired while the former executor or administrator continued in office, must be added so much time after the appointment of the new administrator as will make two years in all.”

*318According to this statute the time intervening between the revoking of the letters of administration and the removal of said administrators from office by the probate court and their subsequent reappointment by the court of common pleas would be deducted from the time allowed by the statute of limitations for bringing suit. That is to say, that the plaintiffs in error were appointed March 5th, 1909, and duly qualified as such administrators, but the probate court on August 19th, 1909, revoked said appointment and removed said administrators from their said office and appointed a special administrator. Upon appeal of the case to the court of common pleas, that<court on the 19th day of February, 1910, removed said special administrator and reappointed said plaintiffs in error. Now, adding the time they had served before their removal (which is five months and fourteen days) to the time they served after their reappointment, and before the bringing of this action, and adding thereto the time of suspension between their removal and the time of the reappointment, the period of time elapsing would be two years and nine days; but, deducting the nineteen days of suspension, the action was brought within the two years allowed by Section 10753, General Code. And therefore, the contention of the plaintiffs in error is not sustained as to the time of bringing the action.

It is also contended by plaintiffs in error that the plaintiff below, being a married woman, living with her husband, at whose home the services were rendered and the work performed for said Keziah Badger,, can not maintain said action, and they cite the case of Spayne v. King, 7 O. D., page 158, in support of this contention. But on the contrary, from the facts in this case it is very clear that the services rendered by the defendant in error in this case were not such services as are contemplated by the duties of a wife in the discharge of her domestic duties as wife and housekeeper, referred to in the case of Spayne v. King, supra, or in the authorities cited from New York, relating to the domestic relations of husband and wife. Therefore, we hold that the defendant in error was entitled to maintain this action in her own name, and that the facts disclosed in the record fully sustain her in her cause of action.

*319It is contended by the plaintiffs in error that at the time the alleged contract was made by Michael Badger with the defendant in error and her hnsband, that he, Michael Badger, was insane and mentally incompetent to transact any business. A husband is liable for necessaries furnished a wife although he may be insane or incompetent to transact ordinary business (Sections 7997 to 8003, General Code; Beach on Contracts, Section 1408, Clark on Contracts, 778). Therefore, the contention of the plaintiffs in error that Michael Badger was not liable for the support of his wife and for necessaries furnished her can not be sustained.

It is further contended by the plaintiffs in error that for the services rendered by the defendant in eftror she has been fully paid, and in support of this contention a number of receipts have been produced and are attached to the bill of exceptions as evidence of this contention. Upon an examination of the receipts themselves, they do not sustain this contention, and taken in connection with oral evidence that was properly introduced in the case in the way of explanation of the receipts, it is shown beyond all question that the contention of the plaintiffs in error that the defendant in error was paid for her services, for which this action was brought, is not sustained.

It is further contended, by the plaintiffs in error that the verdict of the jury in this case is not sustained by the evidence, but is manifestly contrary thereto. In this contention we do not agree with counsel, but on the contrary, after a careful examination of the record, we are unanimous in the opinion that the evidence supports the verdict of the jury and that there is no error in the finding of the jury as to the facts in favor of the defendant in error, in support of her claim. We have examined the records with a view of determining whether or not any of the alleged grounds of error set forth in plaintiff’s petition in error are well taken and we are unanimous in the opinion that they are not.

Therefore, we find no error in the record and the judgment, with the remittitur allowed, is affirmed, with costs, without penalty.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.