DocketNumber: No. 3099
Citation Numbers: 204 N.E.2d 416, 1 Ohio App. 2d 210
Judges: RUTHERFORD, P. J.
Filed Date: 1/29/1965
Status: Precedential
Modified Date: 1/13/2023
On February 13, 1957, the defendants, Ray S. and Norma J. Brunckhart, were indebted to plaintiff's decedent in the sum of $95 upon oral contract, that amount being the balance due upon open account.
On February 13, 1957, the defendant Ray S. Brunckhart applied to the Municipal Court of Massillon for the appointment of a trustee under the provisions of Section
On June 1, 1957, the defendant Ray S. Brunckhart made a payment to the trustee.
On June 10, 1957, from the amount paid by the defendant on June 1, 1957, the trustee made distribution of $4 to the account of Dr. R. W. Croyle, reducing the balance to $91.
In May 1958, Dr. Croyle rendered services to defendants for which he made a charge in the sum of $10. There is no allegation that these services were in any way connected with those rendered more than a year earlier.
On June 6, 1963, plaintiff, as executor of the estate of Dr. R. W. Croyle, deceased, commenced action on the account praying for judgment in the sum of $101, upon the foregoing alleged facts.
The defendants offered to confess judgment in the sum of $10 for services rendered in 1958, and moved for judgment on the pleadings as to the balance of the claim for the reason that the action had not been commenced within the six-year period of limitation under the provisions of Sections
The Municipal Court rendered judgment for the plaintiff against the defendants in the sum of $101 and costs from which judgment the appeal has been taken to this court on questions of law.
The only question of law in this case is: Does a distribution by a trustee appointed under Section
Section
"An action upon a contract not in writing, express or implied, * * * shall be brought within six years after the cause thereof accrued."
Section
"If payment has been made upon any demand founded upon a contract, or a written acknowledgment thereof, or a promise to pay it has been made and signed by the party to be charged, an action may be brought thereon within the time limited by Sections
Section
It is our finding and decision that part payment by a debtor to a trustee appointed under the provisions of Section
The judgment was rendered against both Ray S. Brunckhart and Norma J. Brunckhart. Since February 13, 1957, the defendant Norma J. Brunckhart has made no payment, nor has she made any written acknowledgment or promise to pay. Since June 1, 1957, the defendant Ray S. Brunckhart has made no payment, nor has he made any written acknowledgment or promise to pay.
As to that part of the account, representing a balance of $91, upon which the cause of action arose on or before February 13, 1957, no payment, acknowledgment or promise having since been made by the defendant Norma J. Brunckhart, and no payment, promise or acknowledgment having been made by defendant Roy S. Brunckhart since June 1, 1957, this action, commenced on June 6, 1963, was not commenced within the six-year period as fixed by either Section
As to the $10 charged to the account in 1958, six years had not elapsed, and the defendants having offered to confess judgment as to that item, judgment should have been rendered by the Municipal Court in favor of the plaintiff against the defendants, Ray S. Brunckhart and Norma J. Brunckhart, in the sum of $10.
In accordance with the findings herein, the judgment of the Municipal Court is reversed in part, final judgment is rendered in favor of the plaintiff against the defendants in the sum of $10 and costs, with this cause remanded to the Municipal Court for any further proceedings.
Judgment accordingly.
McLAUGHLIN and VAN NOSTRAN, JJ., concur. *Page 214