
    No. 733
    SKALSKI, Admx. v. KRIEGER
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1563.
    Decided June 15, 1925
    791. MOTIONS & ORDERS—1. Motion of administrator de bonis non to be substituted after removal of administratrix should be sustained.
    2. Failure of court to pass on the motion gives administratrix right to prosecute error.
   YOUNG, J.

Virginia Skalski as administratrix of the estate of Josephine Bardzikowski instituted an action for damages in the Lucas Common Pleas alleging wrongful death, caused by Anthony Krieger. Judgment was rendered on the pleadings in favor of Krieger.

It appears that subsequent to the filing of Skalski’s petition, Krieger filed an application in the probate court seeking to have Skalski removed as administratrix, for the reason she was a minor. Skalski was removed, said removal being subsequent to the bringing of the action in the Common Pleas.

Later Wladyslaw Bardzikowski was appointed administrator de bonis non of said estate. A motion was made to have him substituted as plaintiff, but it was never passed upon by the court. Judgment was entered for defendant on the pleadings. Error was prosecuted and Skalski claimed to be asserting her’right of action by virtue of the statute in such cases and contends that under certain provisions of the statutes, where the powers of a person in a representative capacity or as a personal representative ceased, the action should be revived in the name of his successor.

Attorneys—Eva E. Shaw and John P. Man-ton for Skalski; Mullholland & Hartmann and Joseph A. Robie for Krieger; all of Toledo.

Krieger contended that Skalski, being a min- or at the time of her application for appointment, the probate court was without jurisdiction to make such appointment; that she had no power or authority to maintain the action. It was further contended that the administrator de bonis non did not except to the order of the court in refusing to grant his motion to substitute him for Skalski, nor did he file a motion for a new trial. The Court of Appeals held:

1. The trial court acted on the assumption that the motion for substitution of the administrator de bonis non for Skalski was made by her.

2. No where in the record does it appear that the motion of Wladyslaw Bardzikowski had- ever been passed upon by the court.

3. In the courts failing to pass upon the motion of the administrator de bonis non, he was thereby not a party to the suit, and there was nothing to which he could except and neither could he prosecute error.

4. Since Skalski’s petition had been dis- ■ missed in the lower court, error was properly prosecuted by her as administratrix.

5. There was no reason for not granting the motion of the administrator de bonis non. Judgment reversed and cause remanded.  