Johnson Service Co. v. United Bonding Ins.

246 N.E.2d 918, 18 Ohio App. 2d 95, 47 Ohio Op. 2d 124, 1969 Ohio App. LEXIS 601

• Court: Ohio Court of Appeals
• Decided: February 10, 1969
• Docket: 10732
• Status: Published

Opinion

Shannon, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas in favor of plaintiff, appellee herein, against defendant, appellant herein, in an action on a bond executed pursuant to Section 153.01 et seq., Revised Code.

The facts stipulated upon trial below disclose that:

1. The action was on an account for work performed as a subcontractor to the general contractor, which was adjndicated a bankrupt January 18, 1966.

2. Plaintiff • forwarded notice of claim to defendant bonding company on February 8, 1966, and filed an attested account on February 21, 1966.

3. Defendant served notice to commence suit on the account on July 25, 1966.

4. The petition was filed September 27, 1966.

Whatever may be the merit of the first six assignments of error, we need not pass upon such because the seventh assignment is well taken. The Court of Common Pleas erred in granting judgment because the plaintiff failed to commence suit within thirty days after notice to do so, as required by Section 1311.311, Revised Code.

Consequently, the judgment rendered below is reversed and final judgment rendered for the defendant.

Judgment reversed.

Long, P. J., and Hildebrant, J., concur.