I concur with Judge Matthews in this case on the proposition that it was necessary for the plaintiff to file her claim with the administrator for allowance. The 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 the case grows out of the defense of the bar of the statute set up by the administrator.
The amended petition alleged in substance that the defendant was the duly appointed and acting administrator of the estate, that she presented the claim to the administrator and that the same was rejected. Then follows the prayer for judgment.
The judgment, under review, was based on the second defense of the answer in which the administrator seeks to set up the statute of limitations as a bar to the action. The allegation in the second defense is that the administrator was appointed administrator of the 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 the statute of limitations of Ohio in such cases, namely, Section 10509-144, General Code.
It was considered that this fully set up the bar of the statute, in view of the fact that the date of the appointment was shown, as was also the date of the *Page 227 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 hisappointment and any further time allowed by the court for thecollection 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, "and publication 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 *Page 228 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. *Page 229