
    Grant, Assignee, v. Baldwin et al.
    
      Statute of limitations — Action on bond by claimant to assignee for creditors — Right of action accrues, when — Proceedings in error —Do not arrest statutes — In absence of writ of supersedeas, when.
    
    An assignee for the benefit of creditors paid a claim presented to him against the estate, and received from the claimant a bond with surety thereon, by the terms of which the makers bound themselves to refund any excess over the amount allowed on the claim by the probate court on final distribution of the estate. Exceptions to the allowance of this item in the account of the assignee were overruled by the probate court. On appeal to the common pleas court the exceptions were sustained, the claim referred to was disallowed and the estate ordered distributed among the remaining creditors.
    
      Held: The cause of action on the bond accrued on the entry of Judgment in the court of common pleas, and the running of the statute of limitations was not arrested by proceedings in error in the circuit court and in this court, in the absence of a writ of supersedeas secured according to law.
    (No. 13424
    — Decided December 2, 1913.)
    Error to the Circuit Court of Knox county.
    This was a proceeding brought by the plaintiff in error, assignee of Frank J. D’Arcey, against the defendants in error in the common pleas of Knox county.
    The petition alleges that D’Arcey made an assignment in July, 1895, to Joseph L. Baldwin for the benefit of his creditors; that Baldwin qualified and in August, 1897, resigned, when plaintiff was appointed his successor; that in November, 1895, the defendant, Stevens, pretended to have a judgment for the sum of $2584.03 against D’Arcey, which he claimed was a lien on the property of D’Arcey in the hands of Baldwin, as assignee, by virtue of an execution theretofore levied; that to induce and procure Baldwin, as assignee, to pay him the amount of said judgment out of the assets of said estate, said Stevens and Henry L. Curtis, then in life, executed and delivered to said Baldwin their bond of the date of December 16, 1895, agreeing that in consideration of said Baldwin making to them advancements on said claim, they would (in the event that the amount paid was greater than should be allowed by the probate court upon final distribution of the assets of said estate) refund to said Baldwin, as assignee, the excess of the amount paid over the amount found by the probate judge to be payable; that pursuant thereto said Baldwin advanced to said Curtis and Stevens out of the assets in his hands, as assignee, the following sums: On November 9, 1895, $236.26, on December 16, 1895, the sums of $29.09 and $1538.17, and on the 5th day of May, 1896, the sum of $123.84, making a total of $1,927.36; that on August 16, 1897, said Baldwin filed his account as such assignee in the probate court of Knox county, in which he claimed credit for said sum so paid Charles L. Stevens on his claim as aforesaid; that on October 1, 1897, exceptions were filed to said item of credit in the account of the assignee by a creditor of the assignor ; that said exceptions were heard in the probate court and appealed to the common pleas court of said county, where, on or about April 24, 1900, it was found and decreed that the said judgment of Stevens against D’Arcey had been fully paid and satisfied by D’Arcey to Henry L. Curtis, the real party in interest, and that said Baldwin was not entitled to a credit on his account therefor, and said exceptions were sustained. The petition prays for judgment for the amount so paid to Stevens with interest.
    A copy of the bond referred to and made part of the petition is as follows:
    "December 16, 1895.
    "This instrument is to certify that whereas on the ninth day of July, 1895, Frank J. D’Arcey of Mt. Vernon, Ohio, made an assignment for the benefit of his creditors to Joseph L. Baldwin, who duly qualified and is still acting as such assignee.
    “Charles L. Stevens, being one of the creditors of said D’Arcey and having an approved claim amounting to more than two thousand dollars and being desirous that the said assignee should make advancements to him out of the money of said estate now in the hands of said assignee to credit on his said claim. Now, therefore, in consideration of the foregoing premises and the payment to the said Charles L. Stevens of the sum of fifteen hundred and thirty-eight dollars and seventeen cents, by the said assignee to credit on the claim of the said Charles L. Stevens, we, Charles L. Stevens and Henry L. Curtis, undertake and bind ourselves to the said Joseph L. Baldwin, assignee, that in the event that the amount thus paid is more or greater than is allowed by the probate court upon final order of distribution that we will refund and pay over to the said Joseph L. Baldwin, assignee, the amount he has paid in excess of the amount found by the order of the probate court.
    
      “In witness whereof we have hereunto set our hands on the day and year above written.
    “(Signed.) Chas. L. Stevens,
    “Henry L. Curtis.”
    The answer of defendants is substantially a general denial, and by way of second defense that an executor was appointed on the Sth of April, 1897, for Curtis, who had deceased; that the executor immediatley gave notice of his appointment as required by law, but was exempted by the will of Curtis from giving bond, and that the plaintiff’s cause of action, if he ever had one, accrued not later than the 24th day of April, 1900, and was barred by the statute of limitations at the time the suit was brought, which was in November, 1901;
    The common pleas court rendered a judgment in favor of the plaintiff. This judgment was reversed by the circuit court on the ground, as stated in the entry of that court, “That at the time of the bringing of this suit in the court of common pleas by the defendant in error against the plaintiff in error, said claim set out in said petition was barred by the statute of limitations as to the estate of Henry L. Curtis, and plaintiff in error could not be held to answer to said suit.”
    This proceeding is brought to reverse the judgment of the circuit court and affirm that of the common pleas.
    
      Messrs. Owen & Carr and Mr. Hugh Neal, for plaintiff in error.
    
      Messrs. Waight & Moore and Mr. Henry C. Devin, - for defendants in error.
   Johnson, J.

So far as the estate of Henry L. Curtis,- deceased, is concerned, its liability in this case must arise, if at all, out of the obligations of the bond signed by him. Neither he nor his estate sustained any other relation to the controversy than was created by his becoming surety for Stevens on the bond.

On the trial of the cause in.the common pleas court, the records of the probate court on the exceptions to the account of Baldwin, as assignee, and of the common pleas court originally on appeal from the judgment of the probate court upon said exceptions, were offered in evidence. From the entry made by the court of common pleas it appears that on March 30, 1900, that court found that the judgment of Stevens against D’Arcey was paid and that the exceptions of the creditors of D’Arcey to the account of Baldwin, assignee, should be sustained. The case was then taken on error to the circuit court where the judgment of the common pleas court was sustained. A petition in error was filed in this court, which was dismissed on May 7, 1901, for failure to file printed record.

When did the caus.e of action against the estate of Henry L. Curtis, deceased, on the bond signed by him accrue? The court of common pleas entered its judgment sustaining the exceptions of the creditors of D’Arcey to the account of Bald- ' win, assignee, on March 30, 1900. The court directed that no part of the claim of said Stevens should be paid out. of the assets in the hands of the assignee. That judgment has remained unreversed and was the conclusive determination of the controversy involved in the original proceedings. There was no supersedeas bond filed when the cause was taken to the circuit court by Stevens and Curtis, nor when brought to this court on error. Therefore, on the entry of the judgment in the court of common pleas the right of action, against Stevens and Curtis on their bond accrued. The judgment of the court of common pleas on the exceptions to the account of Baldwin determined the rights of the parties as of that date, and Baldwin, the assignee, could have at once brought suit upon his indemnity bond.

The executor of Curtis was appointed April 5, 1897, and notice of his appointment at once given. Section 6113, Revised Statutes, as then in force, provided that no executor after having given notice of his appointment should be held to answer to the suit of any creditor of the deceased, unless it be commenced within four years from the time of his giving bond “excepting in the cases hereinafter mentioned; provided, however, that any creditor whose cause of action shall accrue or shall have accrued after the expiration of four years from the time that the executor or administrator of such estate shall give or shall have given bond according to law, and before such estate is fully administered, may commence and prosecute such action at any time within one year after the accruing of such cause of action, and before such estate shall have been fully administered; and no cause of action against any executor or administrator shall be adjudged barred, by lapse of time, until the expiration of one year from the time of the accruing thereof.” The will having exempted the executors from giving bond, the statute began to run from the time of the appointment of the executors and the giving of notice. Delaplane v. Smith, 38 Ohio St., 413. The executor having been appointed and having given notice April 5, 1897, the four-year limitation expired April 4, 1901. As we have seen, the cause of action against the estate of Curtis accrued March 30, 1900, more than one year prior to the expiration of the four-year limitation. The assignee of D’Arcey was, therefore, entitled to bring his action .against the estate of Curtis at any time prior to April 5, 1901. The suit was actually begun in November, 1901, and was barred by the statute.

We have considered the other assignments of error, but find no error in the record, and the judgment will be, affirmed.

Judgment affirmed,

Nichols, C. J., Shauck, Donahue and Newman, JJ., concur.  