
    Swearingin v. Rendigs, Jr., Admr.
    
      (Decided October 28, 1935.)
    
      Mr. Oliver W. Hardin and Mr. I. L. Huddle, for' plaintiff in error.
    
      Mr: August A. Rendigs, Jr., and Mr. Wm. H. Fry, for defendant in error.
   Matthews, J.

This is a proceeding in error to the judgment of the Common Pleas Court of Hamilton county in an action against an administrator upon a rejected claim. That court instructed a verdict for the administrator, overruled the motion for a new trial, and entered judgment in his favor. The plaintiff prosecuted error to this court.

The plaintiff was divorced from Frank Swearingin in 1920. In granting the divorce, the court decreed, inter alia, that “the said defendant pay to the plaintiff as a reasonable- alimony in money the sum of Twelve ($12.00) Dollars per week on each and every Monday, commencing upon entry hereof.”

Frank Swearingin died in 1932, and the defendant was appointed administrator on July 15, 1932.

The plaintiff, ón or about July 5, 1933, presented a claim for unpaid installments under this decree aggregating $4,732. The administrator rejected the claim, and action on it was filed against the administrator on July 13, 1933.

The answer of the defendant alleged two defenses: (1) A general denial, and (2) that he was duly appointed administrator of the estate of Frank Swearingin on July 15,1932, and that this action not having been filed until July 13,1933, was barred by the terms of Section 10509-144, General Code.

The plaintiff in her petition affirmatively alleged that the defendant was the duly authorized administrator, hut did not state the time of the appointment. She filed no reply.

While the evidence relating to the amount of the delinquent installments is rather fragmentary and inconclusive, there was no serious denial of the amount.

There was no denial,! of the date of the appointment.

At the close of all the evidence, the court sustained the defendant’s motion for an instructed verdict on the ground that the claim was barred under the terms of Section 10509-144, General Code.

It is claimed here that the court erred for the following reasons:

(1) It is urged that this claim being upon a judgment, it was not necessary to present it to the administrator for allowance. It seems to us a sufficient answer to this contention to say that the claim was presented and rejected, and neither Section 10509-133, General Code, prescribing that actions upon rejected claims must be brought within two months, nor Section 10509-144, General Code, prescribing that no administrator shall be held to answer to the suit of any creditor unless it be commenced within two months after the expiration of nine months following his appointment, is limited in application to claims that are required to be presented for allowance.

However, we are also of the opinion that it was necessary to present this claim for allowance. Section 10509-112, General Code, makes no exception to the requirement that claims must be presented for allowance or rejection, but since the law does not require the doing of a futile thing, it has been held, among other instances, that if the claim is of such a character that it conclusively proves itself, leaving no discretion to the administrator to reject it, no presentation is necessary. It is claimed this is that sort of a case. We do not think so. Clearly the amount of the delinquencies was a proper subject for the investigation of the administrator. No judgment of any court had foreclosed placing that in issue.

Certain cases have been cited: Musser’s Exr. v. Chase, 29 Ohio St., 577, held that a pending action could be revived without presenting the claim in suit to the administrator; Ambrose, Admr., v. Byrne, Exr., 61 Ohio St., 146, 55 N. E., 408, decided that the lien of a judgment was not lost by failure to present the judgment as a personal claim against the estate; McCoun, Admr., v. Weiskettle, 6 Dec. Rep., 805, 8 Am. L. Rec., 303, differs from Musser’s Exr. v. Chase, supra, only in that the revivor was of a judgment for alimony. Clearly these cases holding that the statute was not intended to apply to a continuance of pending litigation and that failure to present the claim did not destroy an existing proprietary interest in the property, are wholly, inapplicable to this case of an unadjudicated claim, based on the failure to comply with a court order, for an aggregate amount undetermined and indeterminate at the time the order was made.

(2) Finally, it is urged that the period of limitation did not begin to run after the appointment of the administrator unless notice of his appointment was made within one month thereafter, as provided in Section 10509-6, General Code, and inasmuch as there was no allegation or proof that such notice was published, an essential element was lacking to the raising of the bar.

It seems clear from Sections 10509-154 and 10509-158, General Code, that in order that lapse of time may bar the action, notice of the appointment must be given in accordance with the statute. The administrator relying upon the statute as an affirmative defense has the burden of proving all the conditions necessary to start the running of the statutory period. Now does the absence of an express allegation that notice was given and a failure to introduce any affirmative evidence show the absence of this essential element to the running of the statute? In starting to answer this question, it should be observed that Section 10509-6, Greneral Code, places the duty of publishing notice upon the probate judge and not upon the administrator. It is made a part of the official duty of a judicial officer. There is a presumption that an official has performed the duties of his office. 17 Ohio Jurisprudence, 129. This is a presumption of law. In 10 Ruling Case Law, 881, it is said that: “The presumption that public officers in the discharge of their duties have observed all proper formalities has been said to be one of law and not of fact.” A multitude of cases could be cited in support of these propositions.

It is provided by Section 11331, Ceneral Code, that: “Neither presumptions of law, nor matters of which judicial notice is taken, need be stated in a pleading.”

For a list qf things presumed, and that, therefore, need not be pleaded or proved, see Bates’ Pleading (4th Ed.), 185 to 187.

We have reached the conclusion that in the absence of countervailing evidence, it must be presumed that the probate judge published notice of the appointment of the administrator within thirty days after the appointment, that it was not necessary to allege the fact in the answer, and that in passing upon the motion for an instructed verdict the trial court was required to rule as though the fact had been both alleged and proven.

(3) It is suggested that the pleading and proof were insufficient because there was no averment or proof negativing the possibility that the court may have extended the time for the collection of the assets, as authorized by Section 10509-144, Oeneral Code. We deem that possibility to be an exception and a matter of avoidance by way of reply to tbe plea of tbe statute. 17 Ruling Case Law, 1002, 1004, 1005. Tbe burden of proof of an extension was on tbe plaintiff. While there are many exceptions, tbe ordinary rule is that tbe person who affirms must prove.

For these reasons, tbe judgment is affirmed.

Judgment affirmed.

Ross, P. J., concurs.

Hamilton, J.,

dissenting. I concur with Judge Matthews in this case on tbe proposition that it was necessary for tbe plaintiff to file her claim with tbe administrator for allowance. Tbe claim is not based on a judgment or lien, nor. was it of such a character as to clearly prove itself.

The real question in tbe case grows out of tbe de-. fense of tbe bar of tbe statute set up by tbe administrator.

Tbe amended petition alleged in substance that tbe defendant was tbe duly appointed and acting administrator of the estate, that she presented tbe claim to tbe administrator and that tbe same was rejected. Then follows tbe prayer for judgment.

Tbe judgment, under review, was based on tbe second defense of tbe answer in which the administrator ■eeks to set up tbe statute of limitations as a bar to tbe action. Tbe allegation in tbe second defense is that tbe administrator was appointed administrator of tbe estate of Frank Swearingin, deceased, on July 15,1932, and that this action not having been filed until July 13, 1933, said action is barred by tbe statute of limitations of Ohio in such oases, namely, Section 10509-144, General Code.

It was considered that this, fully set up tbe bax of tbe statute, in view of tbe fact that tbe date of tbe appointment was shown, as was also tbe date of tbe filing of this action, which was eleven months after the appointment. These facts were shown and the Court of Common Pleas rendered judgment based on the second defense, to wit, the bar of the statute.

The date of the appointment and the date of the filing of the action are not in dispute, but does this allege and prove the bar? While it was not in the pleadings, it was strenuously argued to the court at the hearing that the statute did not commence to run until after the publication of the notice of the appointment of the administrator, and it was argued that no notice was ever given.

In the opinion, Judge Matthews discusses at length the question of publication of notice and the effect of' the failure to give the notice, and holds: “It seems clear from Sections 10509-154 and 10509-158, General Code, that in order that lapse of time may bar the action, notice of the appointment must be given in accordance with the statute.” With this proposition, I disagree. The giving of the notice is not necessary to make valid the appointment. This being true, the question of the giving of the notice is of no concern. Section 10509-144, General Code, provides among other things:

“No * * * administrator shall be held to answer to the suit of any creditor of the deceased unless it be commenced within two months after the expiration of nine months following his appointment and any further time allowed by the court for the collection of the assets of the estate, except as otherwise provided by law. * * *” (Italics ours.)

The conclusion reached by Judge Matthews would require the reading into the statute, following the word appointment, “andpublication of notice thereof.” That provision is not in the statute, and, as has frequently been said, the court may not legislate. So that if it was only necessary to show that eleven ^months had passed from the appointment of the administrator before the filing of the action, the defense of the bar would be complete, but the phrase ‘ ‘ and any further time allowed by the court for the collection of the assets of the estate” is in the section. To make effective the bar of the statute, it was just as necessary to allege and prove-that no further time was allowed by the court, as it was to allege and prove the date of the appointment and the date of the filing of the action.

There is the further proposition presented by Section 10509-134, General Code, which provides for the reinstatement of barred claims. Conditions may arise under which it may be necessary to allege that there had been no reinstatement of the claim in order to make effective the bar of the statute. As. heretofore stated, the answer alleges only the date of the appointment of the administrator ,and the date of the filing of the action, and the proof goes no further. While it is not necessary to allege all the facts which would bring the case within the operation of the bar of the statute of limitations, the better practice is to plead all the facts constituting the bar. No additional facts having been proven and a necessary fact to complete the bar having been omitted, I am of the opinion that the judgment should be reversed and the cause remanded to the Court of Common Pleas for further proceedings according to law.  