
    Devers v. Schreiber, Exr.
    (Decided March 18, 1935.)
    
      Mr. Harry Neal Smith, for plaintiff in error.
    
      Mr. George H. Kattenhorn and Mr. August A. Rendigs, Jr., for defendant in error.
   Ross, P. J.

This case comes into this court on error to the Court of Common Pleas of Hamilton county. Judgment was rendered in favor of the defendant in that court, Leonard G-. Schreiber, defendant in error here. The parties are referred to as they appeared in the court of trial.

The error concerning which chief complaint is made is that after granting a judgment upon the pleadings the trial court refused the plaintiff permission to file a second amended petition.

The action was filed November 3, 1933. In the petition it was alleged that the plaintiff was the physician for the defendant’s decedent testatrix, and that he rendered her professional services as such physician, at her request, for which he is entitled to compensation in the sum of $5,760. It is further stated that on March 24, 1932, he filed proof of claim of such account with defendant executor, and that on May 6, 1932, such claim was rejected by the executor.

A demurrer to the petition having been sustained, an amended petition was filed in which the plaintiff again alleged the rendering of professional services, the presentation of the claim to the executor, and the rejection of the same.

It was further alleged that the plaintiff had on the 9th day of June, 1932, filed a petition on the same claim now sued upon, and that the “action failed otherwise than on its merits in being dismissed by plaintiff on October 30, 1933, without prejudice.”

The account of the physician and the proof of claim were attached to the amended petition. Upon the cover of the proof of claim appear the words “This claim is rejected for revision — Leonard G. Schreiber.” The answer to the amended petition filed by the executor admits that the plaintiff filed suit June 9, 1932, upon the claim, and that the suit was dismissed without prejudice as alleged. It was denied that the suit failed otherwise than upon its merits. A second defense in the answer alleged that the present action was barred by the statute of limitations.

A reply was filed by plaintiff in which it was alleged that the former suit was dismissed by the trial court during the progress of the trial, after the court had refused a motion of plaintiff for withdrawal of a juror and for continuance of the cause.

A motion was made for judgment on the pleadings on April 14, 1934, and the same is endorsed “overruled — April 19, 1934.” A reply was filed April 21, 1934, and another motion for judgment on the pleadings was filed April 23, 1934, which bears the endorsement — “Granted—May 10, 1934.”

An entry withdrawing the motion for judgment on the pleadings was entered April 23, 1934, and judgment on the pleadings was entered May 16, 1934.

Motion to set aside the judgment and an application for leave to file a second amended petition were made May 18, 1934, and were overruled June 25, 1934.

The second amended petition recited the rendering of the professional services to the decedent testatrix at her request; the reasonable value of the services so rendered; that the executor as nephew of decedent had charge of her financial affairs, the employment and payment of physicians for her, and all other matters incident to her last illness; that the defendant had paid the plaintiff for previous professional services rendered the testatrix, had requested a statement of the amount due, but that the testatrix died before such statement so requested could be furnished; that the will of testatrix directed the payment of expenses of her last illness as soon as possible after her death; that after the death of testatrix plaintiff furnished defendant with a statement of his services rendered during decedent’s last illness, and that the defendant had refused to pay for same.

Judgment was asked ¿gainst the defendant individually and as executor of the estate of his decedent testatrix.

Leave to file such amended petition was refused.

Section 10509-133, General Code, provides as follows :

“If a claim against the estate of a deceased person has been presented to the executor or administrator, and has been disputed or rejected by him, but not referred to referees, the claimant, except as is otherwise provided by law, must commence a suit for the recovery of such claim within two months after such dispute or rejection, if the debt or any part of it be then due, or within two months after some part of it becomes due, or be forever barred from maintaining an action thereon. Except as is otherwise provided by law, no action shall be maintained thereon after such period, by a person deriving title thereto from such claimant.”

The judgment upon the pleadings was correct in view of the facts alleged and the provisions of the statute applicable thereto noted.

An entirely new predicate for his action was adopted by the plaintiff after the correctness of this judgment became obvious to him, to wit, that presentment of the claim was not necessary. However, again, presentment and rejection of the claim are alleged even in the second amended petition. Such being the case, the section of the statute noted is still applicable even though a case were presented where no presentment was required, unless the exception noted in the statute applies. We know of no “provision of law” applicable excusing presentment of a claim such as is here involved.

It is urged that the will having directed payment of the expenses of the last illness, and the statute requiring the payment of same, presentment is excused. Granting that such a contention is correct (our conclusion being otherwise) presentment and rejection have been consistently alleged in all the petitions filed by the plaintiff. The contention is, however, not maim tainable. There is no exception presented to that requiring presentment and rejection.

Section 10509-112, General Code, provides in part as follows:

“Creditors shall present their claims, whether due or not due, to the executor or administrator within four months after the date of his appointment. Such executor or administrator shall allow or reject all claims, except contingent claims, within thirty days after their presentation. ’ ’

In 18 Ohio Jurisprudence, 354, Section 279, it is stated :

“The general test of the necessity of presentation in many cases is whether the claim is of such a character that it can be adjusted by the claimant and the administrator. The validity of the claim and amount, due may need judicial determination.”

It is our conclusion that the law requires the presentment of the claim involved, and that such presentment was alleged, as well as the rejection of the claim, and that the judgment of the court upon the pleadings was correct. No abuse of discretion appears in refusing leave to file the amended petition.

The judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Matthews and Hamilton, JJ., concur.  