
    Bowman v. Delaney.
    (Decided March 20, 1933.)
    
      Mr. Alonso G. Duer and Mr. M. O. Rettig, for plaintiff in error.
    
      Messrs. Rupp <& Hahn, for defendant in error.
   Lloyd, J.

David E. Bowman, as plaintiff, commenced an action in the court of common pleas against Michael G. Delaney, as principal, and. William and Theresa Delaney, as sureties, on the bond of Michael G. Delaney, administrator with the will annexed of the estate of Mary Soudriett, to recover a judgment on an account for professional services.

An itemized account of the services of Bowman, who is a physician, marked “Exhibit B,” was attached to his petition; the amount thereof being $559, with interest thereon of $70.42, computed to December 30, 1925. In the petition of Bowman it is allegéd that on January 8, 1926, his said account, duly verified, was presented to the administrator, and on or about said date was admitted by Delaney, as administrator, “to be just and was by him allowed as a valid claim against said estate; that said administrator neglected to pay the same when demanded, although more than twelve months had-elapsed from the date of said administrator’s bond, and although said administrator had in his hands sufficient personal or real estate with which to pay said claim, including all other valid claims against said estate; and thereby the said administrator has been guilty of a breach of the terms and conditions of his said bond as such administrator to the damage of this plaintiff in the sum of $629.42 with interest at 6% per annum from December 30,1925.”

A copy of the administrator’s bond is also attached to the petition, and there are appropriate allegations in the petition as to the conditions thereof and the alleged liability thereunder to Bowman as a creditor of the estate. The defendants filed a joint and several answer denying the time of the presentation of the claim of Bowman to the administrator for allowance, and denying that it ever had been allowed by him as a just and valid claim against the estate. The answer alleges that the claim of Bowman was first presented to the administrator on June 19, 1926, and was again presented on May 21, 1927, at both of which times the administrator rejected and refused to allow the claim as a valid claim against the estate, and that by reason of lapse of time Bowman’s right of recovery is barred. As a third defense, defendants allege that Bowman, by leave of the probate court, withdrew his exceptions filed therein to the final account of the administrator, and that thereafter said account was heard and approved and allowed as a final discharge of the administrator, that said judgment of the. probate court remains in full force and effect, and unreversed, and that the claim of Bowman was in issue in the hearing on the account of the administrator, and should have been litigated in the probate court. Bowman, in his reply to this answer, denies every allegation therein not an admission of facts alleged in his petition, and affirmatively alleges that the exceptions filed in the probate court to the final account of the administrator were withdrawn “without prejudice to his. right to sue on the bond of said administrator.” On July 28, 1931, the administrator died, and his executor, Adolph Scheurman, by order of the court, became a party defendant, and filed an answer to the petition in substance the- same as that theretofore filed by the Delaneys. Bowman’s reply thereto was the same in effect as that filed to the previous answer of the three defendants. Thereafter Bowman dismissed his petition without prejudice as to William Delaney and Scheurman, executor, and the bond being joint and several the action proceeded to trial against Theresa Delaney; the trial resulting in a verdict and judgment in favor of the defendant. The bill of exceptions does not purport to contain all of the evidence presented at the trial. In part, it reads as follows:

“The plaintiff, to maintain the issues on his part, offered and the court received in evidence, testimony of the plaintiff tending to prove each and every allegation of the petition herein.
“The plaintiff further to maintain the issues on his part offered and the court received in evidence testimony tending to identify the paper hereto attached marked Exhibit 1, as being a paper filed in the probate court of Lucas County on November 29, 1926, by Michael G. Delaney, administrator of the estate of Mary Soudriett, deceased, for the purpose of securing the determination of the inheritance tax on said estate and that the item in Schedule B thereof, ‘Dr. Service $600.00,’ was intended by said administrator to refer to the claim of the plaintiff sued upon in this action.
“Thereupon the plaintiff further to maintain the issues on his part, offered in evidence said exhibit 1 to the receipt of which in evidence counsel for defendant objected; and the court on consideration, sustained said objection and excluded and rejected such proffered evidence, to which ruling of the court the plaintiff then and there duly excepted.
“A true copy of said exhibit 1, so offered in evidence, by the plaintiff, is hereto attached and made a part hereof.
“The plaintiff having rested his case, the defendant Theresa Delaney offered and the court received in evidence testimony tending to disprove the allegations of plaintiff’s petition and tending to prove that the claim of the plaintiff was rejected.”

Exhibit 1 is an itemized statement of the assets and liabilities filed in the probate court by Michael G. Delaney, administrator of the estate of Mary Soudriett, with his application for the determination of the inheritance tax to be paid by the beneficiaries named in the will of Mary Soudriett. This statement was sworn to by Michael G. Delaney on November 29, 1926, and on the same day was filed in the probate court. Schedule A thereof lists the assets, Schedule B the liabilities,

and Schedule C the names of the beneficiaries. The statement recites “that all of the liabilities of said estate known to the affiant, including an estimate of the costs of administration, are set forth in itemized form in schedule B herein.”

Listed in Schedule B are:

Dr. Services,............................. $600.00
Coyle, undertaker,...............’......... 302.62
Mortgage,............................... 672.00
Court costs,.............................. 35.00
$1,609.62

The only alleged error of which Bowman complains is the refusal of the trial court to receive in evidence Exhibit 1, attached to the bill of exceptions. The cause of action of Bowman is based on Section 10869, General Code, which provides in substance that after a creditor is entitled by law to the payment of his debt from the executor or administrator, and the amount of the claim has either been admitted to be just or allowed by them, the bond given by them for the discharge of their trust may be put in suit by such creditor if the executor or administrator shall neglect, upon demand made by such creditor, to pay such claim.

Bowman seeks to compel one of the sureties on the bond to pay a claim which he alleges the administrator had admitted to be just, and had allowed as a valid claim against the estate, and the time within which such an action must be brought is not limited by the statutory time within which an action against an executor or administrator on a rejected claim must be commenced. Section 10722, General Code.

Exhibit 1 was an official statement filed in the probate court and, it appearing from the bill of exceptions that there was evidence tending to prove that one of the items in the schedule of liabilities referred to Bowman’s claim, was competent evidence as bearing upon the question of whether or not Bowman’s claim had been allowed by the administrator. If authority for this conclusion is necessary, it is forthcoming in Smock v. Bouse, Admr., 12 C. C., 46 (5 C. D., 293), where it is stated, at page 51 of the opinion, that setting up a claim in a petition of an administrator to sell real estate to pay debts as one of the debts of the estate is record evidence of the allowance of that claim.

Defendant also contends “that even an erroneous exclusion of the exhibit complained of would not have prejudiced the plaintiff,” for the reason that the allegation of the plaintiff that the claim had been allowed “is not only denied by defendant but defendant further pleads repeated rejections of said claim subsequent to the date of the alleged allowance.”

The theory of the defendant is that these allegations of denial of the allowance of Bowman’s claim, and the subsequent rejections thereof, as pleaded, create two issues of fact for the consideration of the jury, and that since the jury returned a general verdict the rule announced in Sites v. Haverstick, 23 Ohio St., 626, and McAllister v. Hartsell, 60 Ohio St., 69, 53 N. E., 715, applies, and the nonadmission in evidence of Exhibit 1 was therefore not prejudicial.

My personal conclusion is that this theory is based upon a false premise. Bowman alleges that his claim was allowed by the administrator as a valid claim. The defendants deny this allegation of the petition, and, in effect, affirmatively plead the evidential facts upon which the denial is based. Proof of these alleged facts, like proof of any other contradictory facts, not constituting an affirmative defense, the burden of prov-. ing which is upon the defendant, refutes the facts pleaded by the plaintiff in his petition and which must be proved to maintain his cause of action. Bowman’s claim either was allowed or it was rejected. As I view it, the pleadings create a single issue as to this disputed fact.

However this may be, the bill of exceptions, a part of which is hereinabove quoted, recites that “plaintiff * * * offered and the court received in evidence, testimony * * * tending to prove each and every allegation of the petition,” and that “the defendant Theresa Delaney offered and the court received in evidence testimony tending to disprove the allegations of plaintiff’s petition and tending to prove that the claim of the plaintiff was rejected” — thus recognizing and affirmatively showing, as far as the evidence is concerned, a single issue of fact, it not appearing that any evidence was offered tending to show an allowance of the claim and subsequent rejections thereof. The rule announced in the above-cited cases therefore has no application to the question here in controversy. The verdict in the instant case, like that commented on in Cleveland Ry. Co. v. Masterson, 126 Ohio St., 42, 183 N. E., 873, recites that the jury “found in favor of the defendant,” not that it finds for her “on the issues joined,” which is another reason why, as said by the Supreme Court, “the two-issue rule would not apply.” It also has been suggested that since the bill of exceptions does not contain all of the evidence, but recites only what it tends to prove, the rejection of Exhibit 1, if error, was not prejudicial. The Supreme Court has said that where it “affirmatively appears that each party to the case introduced some evidence upon each branch of the case, tending to support the claims of the respective parties * * * no detailed statement of the evidence was necessary.” Maddex v. Columber, 114 Ohio St., 178, 151 N. E., 56. “In such case, where there is error in the rejection of evidence, or in the charge of the court, it will be presumed that it was prejudicial.” Meek v. Pennsylvania Co., 38 Ohio St., 632, 639.

Our conclusion being that the rejection of Exhibit 1 was prejudicial error, the judgment of the court of common pleas is reversed, and the cause remanded to that court for a new trial.

Judgment reversed and cause remanded.

Richards, J., concurs.  