Skalski, Admx. v. Krieger , 26 Ohio App. 186 ( 1925 )

This is an action for damages for wrongful death of plaintiff's decedent, Josephine Bardzikowski, alleged to have been caused by the defendant, Anthony Krieger. Judgment was rendered by the court for the defendant on the pleadings, and the amended petition dismissed at plaintiff's costs. The record shows that subsequent to the filing of the petition the defendant filed an application in the probate court of this county seeking a removal of the plaintiff as such administratrix, on the ground that at the time of the filing of the application for such appointment she was a minor. The application of the defendant was granted, and the said Virginia Skalski, as administratrix, was removed. The removal of the administratrix was subsequent to the bringing of her action in the court of common pleas.

In February, 1923, Wladyslaw Bardzikowski was by the probate court of this county appointed administrator de bonis non of said estate. The records also show that an answer, supplemental answer, and several motions and demurrers were filed by the respective parties, and on February 13, 1925, the cause was submitted to the court upon the pleadings and the evidence, whereupon the court overruled the demurrer of the plaintiff to the supplemental answer of the defendant, overruled the motion of plaintiff to substitute Wladyslaw Bardzikowski, administrator de bonis non of the estate of said Josephine Bardzikowski, as plaintiff, granted the motion of the defendant for a judgment on the pleadings in favor of defendant, and dismissed the plaintiff's amended petition at her costs. To these findings and judgment the plaintiff excepted, and, upon the overruling of the motion for a new trial, error was prosecuted to this court.

The plaintiff claims to be asserting her right of action by virtue of the statute in such cases, and contends that, under certain provisions of the statutes, where the powers of a person in a representative capacity, or as a personal representative, ceased, the action should be revived in the name of the successor.

It is contended by the defendant that, the plaintiff being a minor at the time of her application for appointment, the probate court was without jurisdiction to make such appointment, that she had no power or authority to commence or maintain her action, and that the findings and judgment of the court below were correct. It is further contended by the defendant that the administratorde bonis non did not except to the order of the court in refusing to grant his motion to substitute him as plaintiff, nor to any of the rulings and findings of the court upon the final disposition of the matters before it, nor did he file any motion for a new trial.

A close examination of the record discloses the fact that the motion to substitute the administrator de bonis non in place of the original plaintiff was made by said administrator. Whether a similar motion for substitution was made by the plaintiff, the record does not disclose, but the journal entry shows that the court acted on the assumption that it was so made by the plaintiff, and his ruling was made accordingly. Nowhere does it now appear that the motion of Wladyslaw Bardzikowski, the administrator de bonis non, has ever been passed upon by the court.

It will be observed that in the court's failing to pass on the motion of the administrator, and he thereby not being a party to the suit, there was nothing to which he could except; nor could he prosecute error. On the other hand, the amended petition of plaintiff having been dismissed at her costs, error was properly prosecuted by the administratrix. Having considered the material issues before us from various angles, we can see no reason for not granting the motion of the administrator de bonis non. We are therefore of the opinion that the judgment of the court below should be reversed, and the cause remanded, with directions to pass upon said motion and for further proceedings. Judgment is reversed, and cause remanded.

Judgment reversed.

RICHARDS and WILLIAMS, JJ., concur.