(dissenting).
I cannot concur in the conclusion that these claims were outlawed by a statute which, under its express provisions, took effect upon January 1, 1932. The petition was filed February 13, 1932, well within the two months’ period. To hold that these actions were barred before two months after January 1, 1932, had elapsed is to give effect to a statute prior to its own effective date.
In addition, the presentation of the claims constituted a pending proceeding within the saving provisions of section 26 of the General Code of Ohio, and were not affected by the amendment.
This view of the case is correct unless the decisions of the Ohio court of last resort are ignored. While section 26 does not exempt causes of action from the operation of amending or repealing statutes (Elder & Co. v. Shoffstall, 90 Ohio St. 265, 107 N. E. 539; Smith v. New York Central R. Co., 122 Ohio St. 45, 170 N. E. 637; Beckman v. State, 122 Ohio St. 443, 172 N. E. 145), it has repeatedly been applied to save pending actions, prosecutions or proceedings from such operation. City of Cincinnati v. Davis, 58 Ohio St. 225, 50 N. E. 918; State ex rel. Andrews et al., Com’rs, v. Zangerle, Auditor, 101 Ohio St. 235, 128 N. E. 165; Industrial Commission v. Vail, 110 Ohio St. 304, 143 N. E. 716; W. S. Tyler Co. v. Rebic, 118 Ohio St. 522, 161 N. E. 790.
Also the Supreme Court of Ohio has repeatedly held that steps taken in the enforcement of legal rights similar to steps taken in the presentation of these claims constitute pending proceedings. In Irwin v. Bank of Bellefontaine, 6 Ohio St. 81, steps taken to perfect an appeal were held to constitute a proceeding. In Raymond v. City of Cleveland, 42 Ohio St. 522, it was declared that the various steps in council and before the boards (of improvements and of equalization) constituted a proceeding. In City of Cincinnati v. Davis, supra, the court declared that the resolution of necessity for the improvement of an alley was a pending proceeding. To the same effect is State ex rel. Andrews et al., Com’rs, v. Zangerle, Auditor, supra. These adjudications certainly establish the principle that the word “proceeding,” within the State of Ohio, as stated in Raymond v. City of Cleveland, supra, 42 Ohio St. at page 529, has a broad connotation, and is not limited to litigation in nature of a suit.
The cases closest in analogy to the instant case are Industrial Commission v. Vail, and W. S. Tyler Co. v. Rebic, supra. The first of these involved an application to the Industrial Commission for compensation under the Workmen’s Compensation Act; the second, an oral application under the *846same act to a self-insuring employer who certainly has neither judicial nor official status. The Supreme Court decided in both cases that the making of the application constituted a pending proceeding. It is evident, therefore, that in the State of Ohio, as laid down by a long line of decisions, the word “proceeding” means “a prescribed mode of action for carrying into effect a legal right.” W. S. Tyler Co. v. Rebic, supra. No definition could fit the facts of this case more accurately. Here the statute specifically prescribes the mode of action for enforcing a legal right against a decedent’s estate. The first prerequisite is the presentation of the claim to the executor or administrator for approval or rejection. In a suit against an executor or administrator on a claim against an estate, it must be proved that the claim upon which the suit is based has been presented to and rejected by the executor or administrator. Keenan v. Saxton’s Adm’rs, 13 Ohio, 41; Harter, Trump, Wiki-dal & Co. v. Taggart’s Ex’rs, 14 Ohio St. 122.
It is urged that since the claims were rejected on October 29, 1931, the proceeding was not pending when the statute took effect. However, claims for compensation had been rejected prior to the effective date of the statutes involved in both W. S. Tyler Co. v. Rebic and Industrial Commission v. Vail, supra. And yet 'these claims were held to constitute pending proceedings protected by section 26. The law of the case is stated in the Rebic Case in the syllabus, and in the Vail Case in the per curiam opinion. State ex rel. Keller v. Forney et al., Tax Commission, 108 Ohio St. 463, 468, 141 N. E. 16; State ex rel. Crawford, Ex’r, v. Industrial Commission, 110 Ohio St. 271, 283, 143 N. E. 574. Each of these decisions states the law of Ohio with reference to the facts upon which it is predicated, and must be read in view of the facts found therein. Baltimore & Ohio R. Co. v. Baillie, 112 Ohio St. 567, 148 N. E. 233.
The facts do not appear in detail in the reports, but they are shown by the records in each case. The record in Industrial Commission v. Vail shows that the employee was injured on June 24, 1920. The application made to the Industrial Commission was rejected on August 4) 1921. The statute took effect upon August 16, 1921. Hence the claim had been rejected prior to the effective date of the statute, and the decision of the Supreme Court of Ohio determines that a claim may be pending even though it has been rejected.
In W. S. Tyler Co. v. Rebic, supra, the Supreme Court found that the employee made an oral demand upon the employer for compensation on June 6, 1925 (118 Ohio St. pages 524, 526, 161 N. E. 790). The record shows that the demand and the refusal were simultaneous. The statute took effect July 14, 1925. The syllabus states that the application was refused, and therefore it is evident that the demand was refused pri- or to the effective date of the act.
The claims in suit, then, under the well-■established law of Ohio, constitute pending proceedings, and are protected under section 26 from the operation of amending and repealing statutes, just as though they were actions pending in a court, unless the amendment or repeal expressly embraces the proceeding.
The term “unless so expressed” means as stated or written in the statute, and not as left to inference or implication. State ex rel. Construction Co. v. Rabbitts, 46 Ohio St. 178, 19 N. E. 437; Kelley, Judge, v. State ex rel. Gellner, 94 Ohio St. 331, 114 N. E. 255; State ex rel. Andrews et al., Com’rs, v. Zangerle, Auditor, supra. In State ex rel. Boswell v. Industrial Commission, 125 Ohio St. 341, 181 N. E. 476, the statute expressly related to claims filed “heretofore or hereafter.”
Section 10509-133 contains not express provision applying its requirements to pending proceedings.
The decision in Matthews v. Raff,. Adm’r, 45 Ohio App. 242, 186 N. E. 887, cannot and does not overrule the decisions, of the Supreme Court of Ohio above cited. In Ohio, this holding lays down no rule binding except within its particular jurisdiction.
The judgment of the District Court should be reversed.