Opinion
Decided February 20, 1930.
Executors and administrators — Damages awarded administratrix for child's wrongful death — Section 10770, General Code — Appeal does not lie from order apportioning proceeds among parents — Statutes authorizing appeal to common pleas court, inapplicable — Sections 10859 and 11206, General Code.
Neither Section 10859, General Code, authorizing appeal to court of common pleas from probate court order, judgment, or decree authorized by the Act of April 17, 1857, Section 9, 54 Ohio Laws, 204, providing for enforcement of order of distribution resulting from settlement of executor's, administrator's, or guardian's account, nor Section 11206, General Code, providing in general for appeals to court of common pleas from probate court, authorizes appeal from order apportioning net amount realized by administratrix in death action under Section 10770, between deceased's parents.
ERROR: Court of Appeals for Van Wert county.
Mr. Albert T. Stroup, for plaintiff in error. Messrs. Conn, Hoke Wright, for defendant in error.
This case, here on error to the court of common pleas, presents a contest between parents of a deceased daughter whose death was caused in such manner as would have entitled the daughter to maintain an action and recover damages had death not ensued.
The mother, as administratrix, recovered damages for the death, and after expenses and costs of recovery were deducted there remained $1,908.44.
The parents, being the parties here, and the only persons concerned, were unable to agree on a division of the fund. The father filed an application in the probate court, which had appointed the administratrix, for apportionment of the net amount realized; whereupon the matter was heard by the probate court and the apportionment was fixed at $1,431.33 for the mother, and $477.11 to the father.
The father appealed to the court of common pleas, wherein, on motion of the mother, the appeal was dismissed on the ground that the matter was not appealable.
The only question for decision in this court is the one presented in the court of common pleas, namely, whether an appeal could be taken from the order of apportionment.
It is the position of plaintiff in error, Monte Parker, that Section 10859, General Code, confers the right of appeal, inasmuch as the order attempted to be appealed from pertains to an order of distribution. The section reads as follows: "From any order, judgment, or decree of the probate court, an appeal may be taken to the court of common pleas, by any person against whom it is made, or who is affected thereby, in the manner provided in other cases. Bills of exception may be taken and allowed upon any decision of the probate, common pleas or circuit court, in such proceedings as in other cases."
That section, when it was Section 6203, Revised Statutes (Section 9 of the act of April 17, 1857, 54 Ohio Laws, 204), was construed and applied by the Supreme Court of Ohio, in Ebersole v. Schiller, Admr., 50 Ohio St. 701, 702, 35 N.E. 793, and it was there held that the right of appeal can have no relation to "orders, judgments and decrees" other than those authorized by the above act, from which Section 10859, General Code, was evolved.
That act provided for the enforcement of an order of distribution resulting from the settlement of an account of an executor, administrator, or guardian. The fund in issue herein did not result from an order of distribution. Indeed, such a fund has been held to be no part of the estate of the person, on account of whose death the fund arose. Steel, Admr., v. Kurtz, 28 Ohio St. 191; Wolf, Admr., v. Lake Erie Western Ry. Co., 55 Ohio St. 517, 45 N.E. 708, 36 L.R.A., 812.
The act nowhere mentioned a fund arising under a statute like Section 10770, General Code, and contains no other language evincing an intention to make any of its provisions applicable to the disbursement of such a fund.
It is not claimed by counsel for plaintiff in error that Section 11206, General Code, which is the statute providing in general for appeals to the court of common pleas from the probate court, authorizes the appeal; but we have carefully studied that section and find that it does not make the order appealable. No other statute makes provision for the appeal, and consequently the court of common pleas rightly decided the motion to dismiss it.
Judgment affirmed.
HUGHES and JUSTICE, JJ., concur.