Glass v. Buzzard

23 Ohio C.C. Dec. 144, 14 Ohio C.C. (n.s.) 427, 1910 Ohio Misc. LEXIS 330

• Court: Ashland Circuit Court
• Decided: October 21, 1910
• Status: Published

Opinion

TAGGART, J.

By this proceeding in error, the plaintiff seeks to reverse the judgment of the court of common pleas.

In that court Catherine Glass was plaintiff and James Buzzard and Geo. W. Buzzard were defendants. In her petition the plaintiff sought to recover from James Buzzard, then in full life, the amount which she claimed was due and owing to her for care, food and clothing for the infant children of the defendant, James Buzzard. ^

The second cause of action alleged the indebtedness set out in the first cause of action, and then claimed that, in order to defraud his creditors, the defendant, James Buzzard, had conveyed to George Buzzard certain real estate for a colorable consideration, but in fact without any consideration, and prayed that the defendant, George Buzzard, might, be restrained from selling or incumbering said real estate, and that the conveyance so made might be set aside, and for such other relief as might be proper and equitable in the premises.

From the transcript of the docket and journal entries we learn that service was had upon both of these defendants, and while the action was pending James Buzzard died, which fact was brought to the attention of the court, and leave was granted to substitute' George* Buzzard, administrator, as party defendant. At whose -suggestion this action of the oourt was taken we are not advised. If it was upon the suggestion of George Buzzard, it was entirely proper and legal. If it was on the suggestion of the plaintiff, no exceptions were taken by any one to the action of the court in respect thereto, but we are advised by this, transcript that summons were issued and returned, serving the administrator- personally.

Later George Buzzard, as administrator, filed a demurrer. The ground of such demurrer is that the petition does not state facts sufficient to constitute a cause of action against him as such administrator.

This demurrer was sustained by the court, and upon plaintiff not desiring to plead further the action against the administrator was dismissed and final judgment rendered, dismissing the petition. The entry recites that the court sustained this demurrer because the petition does not state facts sufficient to constitute a cause of action and because said administrator was not made a party to this cause as provided by law.

We think it reasonably appears that this action was revived as against the administrator, without objection, and upon service of summons upon him he entered an appearance and filed a demurrer, which would give to the court jurisdiction of the person of the defendant, and nothing further appearing on the record would be sufficient revivor of the cause of action as against him.

As to the other ground, that the petition does not state facts sufficient to constitute a cause of action, we are advised the court adopted the view that the' petition did not aver an exhibition or presentation of the claim and the rejection by the administrator.

We think that where an action is rightfully grounded against an intestate in his lifetime and subsequently revived, no presentation or rejection of the claim is necessary, and that the action may proceed to final judgment upon the cause of action as stated against the deceased, provided the petition stated facts sufficient to constitute a cause of action against the intestate.

We are supported in this view of the law by State v. Kilgour, 19 Dec. 670 (8 N. S. 629), and by the case of Musser v. Chase, 29 Ohio St. 577, 586.

For the error of the court in sustaining this demurrer, the judgment of the court of common pleas is reversed, and this cause is remanded for further trial and proceedings according to law.

Donnelly and Voorhees, JJ., concur.