Krash v. Jarvis

187 N.E.2d 409, 90 Ohio Law. Abs. 99, 25 Ohio Op. 2d 133, 1962 Ohio App. LEXIS 763

• Court: Ohio Court of Appeals
• Decided: February 27, 1962
• Docket: No. 1126
• Status: Published

Opinion

Brown, P. J.

Under the undisputed facts of this case the claim was not served upon the administrator within four months as required by Section 2117.06, Revised Code.

The petition filed with the Probate Court under Section 2117.07, Revised Code, could be allowed only if one of the three grounds provided in that section existed in fact.

The existence of any one of the three grounds enumerated by the statute is not seriously claimed.

It is our view that Section 2117.07, Revised Code, does not contemplate the exercise of discretion by the Probate Court in the absence of one of the stated grounds. We may, therefore, not hold the Probate Court’s action in this case was an abuse of discretion.

The appellant had notice of the death of the decedent on September 8, 1959, some ten months before the claim had to be presented to the administrator under Section 2117.06, Revised Code. The appellant had notice of the appointment of the administrator in time to send the claim to the administrator but through error of the clerical staff of the Probate Court he sent the notice to the wrong address. Neither Section 2117.06, Revised Code nor Section 2117.07, Revised Code, authorize relief in this situation. Redifer Bus Co. v. Lumme, Admr., 171 Ohio St., 471.

There is no abuse of discretion and no other assignment of error well made.

Judgment affirmed.

Donahue and Griffith, JJ., concur.