Swearingin v. Rendigs, Jr., Admr.

4 N.E.2d 695, 53 Ohio App. 221, 20 Ohio Law. Abs. 317, 5 Ohio Op. 457, 1935 Ohio App. LEXIS 319

• Court: Ohio Court of Appeals
• Decided: October 28, 1935
• Docket: No 4852
• Status: Published

Opinions

OPINION

By MATTHEWS, J.

It is claimed here that the court erred for two reasons.

(1) It is urged that this claim being upon a judgment, it was not necessary t< present it to the administrator for allowance. It seems to us a sufficient answer to this contention to say that the claim was presented and rejected, and neither §10509-133, GC, prescribing that actions upon rejected claims must be brought within two months, nor §10509-144, GC, prescribing that no administrator shall be held to answer to the suit of any creditor unless it be commenced within two months after the expiration of nine months following his appointment, limits its application to claims that are required to be presented for allowance.

However, we are also of the opinion that it was necessary to present this claim for allowance. §10508-112, GC, makes no exception to the requirement that claims must be presented for allowance or rejection. As the law does not require the doing of a futile thing, it has been held, among other instances, that if the claim is of such a character that it conclusively proves itself, leaving no discretion to the administrator to reject it, no presentation is necessary. It is claimed this is that sort of a casé. We do not think so. Clearly the amount of the delinquencies was a proper subject for the investigation of the administrator. No judgment of any court had foreclosed placing that in issue.

Certain cases have been cited: — Musser’s Executor v Chase, 29 Oh St, 577, held that a pending action could be revived without presenting the claim in suit to the administrator; Ambrose, Admr. v Byrne, Exr., 61 Oh St, 146, decided that the lien of a judgment was not lost by failure to present the judgment as a personal claim against the estate; McCown v Weiskettle, 6 Ohio Dec. Reprint, 805, 8 Am. Law Record, 303, differs from Musser’s v Chase only in that the revivor was of a judgment for alimony. Clearly these cases holding that the statute was not intended to apply to a continuance of pending litigation, and that failure to 'present the claim did not destroy an existing proprietary interest in the property, are wholly inapplicable to this case of an unadjudicated claim, based on the failure to comply with a court order of an aggregate amount undetermined and indeterminate at the time the order was made.

(2) Finally, it is urged that the period '.of limitation did not begin to run on the appointment of the administrator unless notice of his appointment was made within .one month thereafter, as provided in §10509-6, GC, and that as there was no allegation or proof that notice was published, an essential element was lacking to the raising of the bar.

It seems clear from §§10509-154 and 10509-158, GC, that in order that lapse of time may bar the action, notice of the appointment must be given in accordance with the statute. The administrator relying upon the statute as an affirmative defense has the burden of proving all the conditions necessary to start the running of the statutory period. Now does the absence, of an express allegation that notice was given and a failure to introduce any affirmative evidence show the absence of this essentia] element to the running of the statute? In starting to answer this question, it should be observed that §10509-6, GC, places the duty of publishing notice upon the Probate Judge and not upon the administrator. It is made a part of the official duty of a judicial officer. There is a presumption that an official has performed the duties of his office. 17 O. Jur., 129. This is a pre- ■ sumption of law. In 10 R.C.L. 881, it is said that: " “The presumption that public officers in the discharge of their duties have observed all proper formalities has been said to be one of law and not of fact.” A' multitude of cases could be cited in support of these propositions.

It is provided by §11331, GC, that: “Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in a pleading.”

For a list of things presumed and that, therefore, need not be pleaded or proved, see Bates’ Pleading (4th ed.), p. 185 to 187.

We have reached the conclusion that in the absence of countervailing evidence, it must be presumed that the probate judge published notice of the appointment of the administrator within thirty days after the appointment, that it was not necessary to allege the fact in the answer, and that in passing upon- the motion for an instructed verdict, the trial court was required to rule as though the fact had been both alleged and proven.

(3) It is suggested that the pleading and proof were insufficient because there was no averment or proof negativing the possibility that the court may have extended the time for the collection of the assets, as authorized by §10509-144, GC. We deem that possibility to be an exception and a matter of avoidance by way of reply to the plea of the statute. 17 R.C.L. 1002. 1004. 1005. The burden of proof of an extension was on the plaintiff. While there are many excep tions, the ordinary rule is the person who affirms must prove.

For these reasons, the judgment is affirmed.

ROSS, PJ, concurs. HAMILTON, J, dissents in separate memorandum.