
    Cook et al., Admrs., v. Shanower et al.
    (Decided October 10, 1934.)
    
      Mr. Price Janson, for plaintiffs in error.
    
      Mr. G. B. McGlintock and Mr. H. W. Petzinger, for defendants in error.
   Lemert, J.

This cause comes into this court upon a petition in error from the Court of Common Pleas of Stark county, Ohio. The petition in error sets forth several grounds of error, but the grounds chiefly relied upon in oral argument, and in brief, are: First, the court erred in overruling the motion of plaintiffs in error for a new trial; second, the court erred in directing the jury to return a verdict for the defendants; third, the court erred in finding and determining that there was evidence invoking the doctrine of res judicata.

A brief statement of tbe facts in this case is as follows: Emily Freedy was a resident of tbe village of Louisville, Ohio, for many years. Her husband died a number of years prior to her death. They had no children. During the lifetime of Emily Freedy she was a depositor of The First State Bank of Louisville, and of The Louisville Bank, the latter being a branch of The Geo. D. Harter Bank of Canton, Ohio. Emily Freedy died testate in the early part of 1930, and by the terms of her will Merl F. Shanower was named as executor. He received his appointment from the Probate Court of Stark county, on March 17, 1930. An inventory and appraisement were filed on May 27, 1930. At the time of the death of Emily Freedy, she had numerous certificates of deposit in The First State Bank and in The Louisville Bank, maturing at different times.

Merl F. Shanower, as executor, filed his first partial account on April 11, 1931, and. at that time made a partial distribution to the beneficiaries under the will of Emily Freedy. At that time, he could not make his final account because there were matters of dispute pending relative to the settlement of the estate. He was advised by his attorney that he could not make final settlement because of certain disputed matters.

During the time from March 17,1930, until the First State Bank and The Louisville Bank were closed for liquidation, Merl F. Shanower, executor, renewed said certificates of deposit so that the estate would secure the benefit of the interest. The First State Bank of Louisville, in which said executor had certificates of deposit amounting to $9,833.51, closed for liquidation on June 1, 1931. The Louisville Bank, a branch of The Geo. D. Harter Bank, in which the executor had certificates amounting to $1,020.69, was closed on October 21, 1931, by the Superintendent of Banks. The second partial account of said executor was filed in January, 1933, and in said account his statement of facts recites the fact that he had filed proof of claim with The First State Bank for $9,833.51, and with The Louisville Bank, a branch of The Geo. D. Harter Bank, for certificates amounting to $1,020.69.

The record discloses that in the Probate Court of Stark county, exceptions were filed to the second partial account, as shown by Item 4. It was claimed that said executor should be held for the money lost in The First State Bank and The Louisville Bank. The exceptions to the second partial account of Merl F. Shanower, as executor, and the motion for his removal as executor, came on for hearing before J. J. McCall, Probate Judge of Stark county, and the court ruled that said executor was not liable for the funds in said banks at the time they were closed for liquidation, but did make a finding against the executor for the sum of $1,431.18, which said executor paid. It was also the order of said Probate Court that said executor should be removed.

The instant case, involving an action on the bond, came on for hearing before the Court of Common Pleas and a jury, and at the end of the plaintiff’s testimony, a motion was made to direct a verdict in favor of the defendants, on the grounds that there had been a former adjudication, as shown by plaintiff’s own testimony, and that the same amounted to res judicata, and the court sustained said motion.

Upon an examination of the record of the proceedings had in the Common Pleas Court upon the hearing of this cause, we are of the opinion that the plaintiffs in this action had their rights determined at the time of the hearing on the exceptions to the second partial account and on the motion for the removal of the executor. The question of the liability of the executor for the funds on deposit in these two banks was before the court and the court rendered a written opinion deciding the matter and a journal entry was put on record. If these plaintiffs were not content with the decision of the Probate Court, they had their right of appeal and error. They decided not to take that course but to try some other remedy.

It has been repeatedly held that the Probate Court is the court wherein matters relating to the settlement of estates are determined. Having decided to follow the former course, can it now be said that these plaintiffs have the right to pursue another course where the same facts are involved? This, we believe, should not be permitted. We are of the opinion that the matters involved in the instant case were litigated and adjudicated as hereinbefore stated, and that the Court of Common Pleas was right in directing a verdict in favor of the defendants.

It, therefore, follows that the finding and judgment of the Court of Common Pleas are hereby affirmed.

Judgment affirmed.

Sherick, P. J., and Montgomery, J., concur.  