DocketNumber: No. 802
Citation Numbers: 228 N.E.2d 337, 11 Ohio App. 2d 51
Judges: RUTHERFORD, J.
Filed Date: 7/24/1967
Status: Precedential
Modified Date: 1/13/2023
This appeal is on questions of law from a judgment refusing revivor and dismissing the action, with prejudice.
On October 29, 1963, the plaintiff, Walter C. Kibbey, filed a petition seeking damages for personal injuries alleged to have been proximately caused by defendant's negligent operation of a motor vehicle upon a highway in Scioto County, Ohio.
Service was made upon the defendant, a resident of Kentucky, through the Secretary of the State of Ohio, in accordance with the provisions of Section
On January 12, 1966, defendant's attorney filed notice pursuant to Section
On February 15, 1965, a domiciliary administrator, hereinafter referred to as the Kentucky administrator, was issued letters of administration in the state of Kentucky. Such Kentucky administrator has never filed an authenticated copy of letters of appointment in any Probate Court in Ohio under the provisions of Section
On January 24, 1966, plaintiff filed a supplemental petition, upon which service was obtained through the Secretary of State, and on March 28, 1966, filed a motion requesting a conditional order of revivor, which the court granted, and notice was published, following which the Kentucky administrator entered an appearance by motion for the purpose of asserting the defense that the statutory period of limitation for revivor as fixed by Section
The Common Pleas Court of Scioto County sustained the motion of the Kentucky administrator and dismissed the plaintiff's petition, with prejudice. In a written opinion, the court stated the reasons to be:
"* * * the administrator was appointed on February 15, 1965, and no petition for revivor filed until January 24, 1966.
"Section
We believe the trial court was in error. Both of the reasons given and the judgment are contrary to law.
Section
"An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose."
This action was brought within such two-year period, and the defendant answered but subsequently died while the action was still pending.
It is undisputed that this action is of the type which does not abate but survives the death of the defendant.
The personal injury action which survives having been commenced in the Common Pleas Court of Scioto County, Ohio, it is in that court that it must be revived, and the jurisdiction of the action, including proceedings to revive, being in Ohio, the right of revivor must be determined under the law of Ohio.
Normally an action which has been commenced before expiration *Page 54
of the statutory period of limitation for commencement of the action, and which survives, may be revived any time before judgment. See Section
"If before judgment, one of the parties to an action dies, * * * but the right of action survives in favor of or against his representatives or successors, the action may be revived and the action proceed in the name of such representatives or successors." (Emphasis added.)
In the case of an automobile collision which occurs in Ohio, when the defendant, a nonresident of this state, is amenable to the provisions of Section
"* * * Such appointment shall be irrevocable and binding upon the executor or administrator of such nonresident operator or owner.
"* * *
"* * * Where an action has been commenced under the provisions of this section by service on a defendant who dies thereafter, the court must allow the action to be continued against his executor or administrator upon motion with such notice as the court deems proper."
Prior to the foregoing amendment, effective October 4, 1955, no provision was made for service on the foreign executor or administrator of the nonresident in event of the nonresident's death before or during suit. It was uniformly held that jurisdiction could not be obtained in these situations because the agency created by the statute terminated upon the principal's death. Further justification was based on the necessity of strict construction of the statutes in derogation of the common law.
Thus, in accidents serious enough to result in the death of a nonresident defendant, the immunity of the foreign executor or administrator to suit in Ohio completely frustrated the objective of the statute. It was to remedy this situation that Section *Page 55
Such statute provides that the agency is irrevocable and binding upon the executor or administrator of such nonresident operator or owner and that where an action has been commenced by service on a defendant who dies thereafter the court must allow the action to be continued against his executor or administrator upon motion with such notice as the court deems proper. But the nonresident decedent's administrator further contends that there can be no revivor because the notice of application or proceedings for revivor was not given within the time fixed by Section
Section
"Upon the death of a defendant in an action wherein the right, or any part of it, survives against his personal representative, the revivor shall be against him. * * * An action for the recovery of money pending at the death of the defendant shall not be revived against the executor or administrator as provided in Sections
Section
"All creditors having claims against an estate shall present their claims to the executor or administrator in writing * * *. All claims shall be presented within four months after the date of appointment of the executor or administrator. * * *"
Section
"* * *
"Nothing in this section or in Section
In Miller v. Andre,
"Where an action for money is instituted, which action, upon the death of the defendant, survives against his personal representative, Section
It seems clear that such sections in Chapter 2117, Revised Code, have reference only to claims to be presented to executors or administrators appointed in Ohio, and even then, under the provision of Section
In the instant case, however, we do not reach the point requiring consideration of the foregoing exception. Considering the time fixed for notice of revivor to be the same as that fixed for presentation of a claim, Section
We deal here with a foreign administrator, and other sections of the Revised Code contain special provisions regarding proceedings by a nonresident decedent's executor or administrator to bar creditor's claims.
Section
"When letters of administration or letters testamentary have been granted in any other state, territory, or possession of the United States, or in any foreign country, as to the estate of a deceased resident thereof, and when no ancillary administration proceedings have been had or are being had in Ohio, the person to whom such letters were granted may file in the Probate Court in any county of this state in which is located real estate of the decedent an authenticated copy of the letters of appointment, and such court shall cause notice thereof to be published for three consecutive weeks in some newspaper of general circulation in the county in which such copy was filed. The claim of any creditor of such decedent shall be presented to such court within six months after the date of such filing or be forever barred as a possible lien upon the Ohio real estate of such decedent. If, at the expiration of such period of six months, any such claims have been filed and remain unpaid after reasonable notice thereof to the nonresident executor or administrator, ancillary administration proceedings as to such estate may be had forthwith."
Section
"Creditors having claims against the estate of a nonresident decedent shall file them with the ancillary administrator, appointed under Section
In the instant case, no notice has ever been given as provided for by Section
When a domiciliary or ancillary administrator is appointed *Page 58
in Ohio, notice is published as provided by Section
Once revived as provided for by the law of Ohio against the administrator appointed in Kentucky, if judgment is obtained, it may or may not be collectible from assets in the Kentucky estate since ultimate collection from assets of the Kentucky estate would be dependent upon meeting conditions of the Kentucky statutes to enforce collection from an estate within that jurisdiction.
Following revivor, if the plaintiff obtains judgment, he may elect to file a supplemental petition under the provisions of Section
If a judgment is obtained and collection of the judgment is sought through a Kentucky court from assets of the estate in Kentucky, over which the courts of Ohio are without jurisdiction, the administrator can then defend under the law of Kentucky. Whether the plaintiff has timely presented a claim under *Page 59 Kentucky statutes to enforce his claim against a Kentucky estate, we need not now determine.
For the reasons set forth, our conclusions are:
Where an action, arising out of an automobile accident or collision occurring in Ohio, has been commenced in Ohio against a nonresident defendant operator or owner who has become amenable to the provisions of Section
Where, following an automobile accident upon an Ohio highway, a nonresident defendant dies after an action has been commenced against him pursuant to the provisions of Section
The judgment appealed from is contrary to law and is reversed. Judgment is entered ordering the action revived against Allen C. Mercer, administrator of the estate of C. Dewey Mercer, deceased, and this cause is remanded to the Common Pleas Court of Scioto County for further proceedings according to law.
Judgment reversed.
GRAY, P. J., and ABELE, J., concur.
RUTHERFORD, J., of the Fifth Appellate District, sitting by designation in the Fourth Appellate District. *Page 60