Philadelphia Nat. Bank v. Raff , 76 F.2d 843 ( 1935 )

MOORMAN, Circuit Judge.

Section 26' of the General Code of Ohio provides: “Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending 1 actions, prosecutions, or proceedings, unless so expressed. * * * ”

On April 10, 1931, the General Assembly of Ohio enacted section 10509-133 of the Ohio General Code, to become effective January 1, 1932 (Ohio General Code, § 10512-25). This statute provides that an action on a claim against the estate of a deceased person shall be brought within two months after the rejection of the claim by the executor or administrator and not thereafter. In the earlier statute the limitation on such actions was. six months after the rejection of the claim by the executor or administrator. Ohio General Code, J 10722. This is a suit on three promissory notes executed by Z. W. Davis, deceased. The notes were presented to the appellee, the administrator of Davis, for payment in July of 1931 and rejected on October 29, 1931. Suit was filed on February. 13, 1932. The District Court dismissed the petition on the ground that more than two months had elapsed from the date of the rejection of the claim by the administrator before the bringing of the action. 4 F. Supp. 230. The appellant contends (1) that by virtue of section 26 it had six months from.the date of the rejection of the claim — the period fixed by the old statute — in which to bring its suit; and (2) if the new statute is applicable, it had two months from the effective date of that statute.

The question under the first' contention is whether a claim which has been presented to and rejected by the' administrator of a decedent’s estate and on which no suit has been brought is. a pending proceeding within the meaning of section 26. This question has never been determined by the Supreme Court of Ohio. The appellant relies upon two cases—Industrial Commission v. Vail, 110 Ohio St. 304, 143 N. E. 716, and Tyler Co. v. Rebic, 118 Ohio St. 522, 161 N. E. 790. The per curiam opinion in the Vail Case states merely that an application for compensation under the Workmen’s Compensation Law .filed with the Industrial Commission of Ohio prior to the effective date of an amendment to the Law “is a proceeding, within the provisions of section 26, General Code, which ripens into an action upon an appeal from a denial of such claim by the Industrial Commission, 'and the amendment is not applicable in the trial of such action.” The opinion does not show when the application was denied by the Industrial Commission. In the Rebic Case the syllabus states: “An oral application for compensation, given by an injured employee to his self-insuring employer, which application is refused by his employer, constitutes the commencement of a ‘proceeding’ sufficient to confer jurisdiction for a subsequent appeal from an adverse decision of the Industrial Commission.” The statement of the case in the report says that the employee “claims to have made an oral demand upon the employer * * * June 6, 1925,” that the demand was rejected, and the employee made application to the Industrial Commission September 4, 1925. The new statute became effective July 14, 1925. It does not appear in the syllabus, the statement of the case, or the opinion when the employee’s demand was rejected by 'the employer. Even if the court was dealing in these cases with demands rejected by an employer or the Industrial Commission before the new acts became effective, the cases are not determinative of the issue at bar, because they are only “authoritative to the extent of the precise question decided, and no farther.” Southern Ry. Co. v. Simpson, 131 F. 705, 709 (6 C. C. A.); In re Sullivan (C. C. A.) 148 F. 815; 817; Armstrong v. McAdams (C. C. A.) 46 F.(2d) 931, 933; Bodenheimer v. Confederate Memorial Ass’n (C. C. A.) 68 F.(2d) 507, 510. To say that we must imply 'from these two cases that the filing of a claim with the administrator of a decedent’s estate is the commencing of a proceeding within the meaning of the statute would be to say that we must surmise what the Supreme Court of Ohio would hold -in suGh circumstances and give the statute a construction which the court has never given it. This we are no more required to do than we would be required to imply that any precedent step to the filing of an action such as notice of protest on a check, notice to quit possession, or the presentation of a promissory note for payment is the commencement of a proceeding. Neither of the cases demands such implication, nor is either of them determinative of the question. Lacking a controlling decision by the highest court of the state, we must determine the meaning of the statute with reference to the situation here presented for ourselves. Portneuf-Marsh Co. v. Brown, 274 U. S. 630, 637, 47 S. Ct. 692, 71 L. Ed. 1243. We cannot think that' a “proceeding” was commenced by the filing of a claim with the administrator, but even if it was, the proceeding was terminated upon the rejection of the claim, and the appellant then had no proceeding at all — only the right to bring suit. This right was not asserted in an action filed prior to and pending at the time the statute became effective, and section 26 has no application to such rights or causes of action. Smith v. N. Y. C. R. Co., 122 Ohio St. 45, 56, 170 N. E. 637. Our conclusion that there was no pending proceeding at the time the statute became effective is supported by the decision of an appellate court of the state in Matthews v. Raff, Adm’r, 45 Ohio App. 242, 186 N. E. 887.

Nor do we think limitation did not begin to run until fhe effective date of the new statute. The statute provides that the date for the starting of the limitation shall be the date of the rejection of the claim. It is true that in Sohn v. Waterson, 17 Wall. (84 U. S.) 596, 21 L. Ed. 737, a statute of limitation war given a prospective operation. That rule of construction was resorted to, however, to avoid holding the statute unconstitutional because of failure to make provision for a reasonable time for commencing action before the bar of the statute took effect. See Terry v. Anderson, 95 U. S. 628, 632-633, 24 L. Ed. 365; McGahey v. Virginia (In re Brown), 135 U. S. 662, 701, 705. 10 S. Ct. 972, 34 L. Ed. 304; Turner v. New York, 168 U. S. 90, 94, 18 S. Ct. 38, 40, 42 L. Ed. 392. In the Turner Case it was said: “It is well settled that a statute shortening the period of limitation is within the constitutional power of the legislature, provided a reasonable time, taking into consideration the nature of the case, is allowed for bringing an action after the passage of the statute, and before the bar takes effect.” The act here under consideration was passed in April, 1931. It was one of the public acts of the General Assembly of Ohio, and the appellant is presumed to have had notice of it. Appellant had the right to bring suit on its claim at any time between October 29, 1931, and December 31, 1931, .and no reason is shown why it did not do so. In view of the need for the early settlement ■of decedents’ estates, this period cannot be considered unreasonably short.

The judgment is affirmed.