text:
    Lyons, Exr., Appellant, v. Garnette, Appellee.
    (No. 688
    Decided November 24, 1950.)

      Mr. T. A. Billingsley, for appellant.

      Mr. George W. Porter and Mr. Floyd I). Smith, for appellee.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Darke County dismissing plaintiff’s action after a hearing-on the merits.

Plaintiff as executor of the estate of Charlotte Whipple, deceased, brought an action against Odella Garnette on a promissory note for the sum of $2,700 with interest. The defendant in her answer sets up three defenses.- First, general denial; second, that in her will Charlotte Whipple directed that her executor place a credit of $1,000 upon the $2,700 promissory note due her from Odella Garnette, leaving a balance due her on her estate of $1,700, and the executor refused to give a credit of $1,000 as directed in the will; and, third, that the plaintiff is estopped from prosecuting this cause as the matters set out in the petition are res judicata.

The principal question for determination arises under the third defense. In her third defense the defendant alleges that in a prior action entitled ‘ ‘ Odella Garnette v. David Lyons, Executor,” in which the record shows that she sued the estate of Charlotte Whipple for the recovery of $2,817.41 for nursing-services and for money expended for the use and benefit of Charlotte Whipple, an item was listed as “Note at bank .... $1,000.00.”

The defendant further answering alleges that in the former action the defendant filed an answer and for his second defense alleges that in accordance with an agreement between Odella Garnette and the deceased, Charlotte Whipple did in her will direct and provide that credit should be placed upon a note of $2,700, dated May 21, 1943, signed by Odella Garnette; that the provision in the will referred to the $1,000 which Odella Garnette had procured from a Greenville bank and placed in the checking account of the decedent; and that the defendant is ready, able and willing- to give such credit upon the note in accordance with the directions in the will and that by reason thereof the estate of Charlotte Whipple is not indebted for the item of $1,000 contained in the account. In the answer filed , herein defendant alleges further that the promissory note on which this action is brought was introduced in evidence in the prior proceeding; that the case was tried to a jury; and that the court charged the jury in regard to the second defense in the prior action as follows:

“As respects the second defense of defendant’s amended answer, the court says to you that there has been no proof whatsoever of an agreement between decedent and plaintiff that such will be accepted of decedent. So you will disregard the second defense of the amended answer absolutely. ’ ’

The defendant herein alleges further that the jury returned a verdict for Odella Garnette in the- sum of $2,000 and that by reason of the p,rior proceedings the matters set forth in plaintiff’s petition have been adjudicated. The essentia] allegations in the answer were controverted by a reply.

The case at bar was tried to the court. The evidence submitted is largely documentary. The pleadings in the prior action, together with the charge to the jury, the will of the decedent, and the promissory note on which suit was brought were submitted as exhibits by stipulation. The trial resulted in -a-judgment for the defendant. A motion to vacate the judgment and for new trial was filed and overruled and thereupon plaintiff’s action was dismissed.

The judgment entry was general in its terms. However, the opinion of the trial judge in this case is a part of the record of the transcript of docket and journal entries and other, papers in the case. The trial judge held that the issues had been adjudicated in the former proceeding. As the judgment entry is general in its terms, we are required to determine whether the dismissal of the action can be sustained on any other ground. It is contended by counsel for defendant that plaintiff did not sustain the burden of proof with respect to the execution and delivery of the note and that the note was given for consideration. ■

The executor testified that the nóte presented in this case was the same note which' was presented as an exhibit in the former trial and that no payments had been made thereon. In view of the answer filed in this action and the pleadings in the former proceeding, which were introduced by stipulation in this action, there is sufficient evidence from which the court could reasonably conclude that the note was properly executed and delivered. The defendant in this action, in her answer, did not plead nonexecution or nondelivery of the note; neither did she plead failure or want of consideration. Under Section 8121, General Code, delivery would be presumed, and under Section 8129, General Code, valuable consideration would be presumed.

We now consider the matter of res judicata, which was the basis for the dismissal of plaintiff’s action by the trial court. It is true that the prior action was between the same parties. Also, we recognize the rule that a former judgment is conclusive between the parties, not only as to matters actually determined, but also as to any matters which, under the rules of practice and procedure, could be determined. 23 Ohio Jurisprudence, 979, Section 748.

But the cause of action sued upon in the prior suit was a different cause of action from the one sued upon in the instant case. In the prior action Odella Garnette claimed there was due her for nursing services and for money expended for the use and benefit of the decedent a certain sum of money. The item listed was for $1,000 for note at bank. In the prior suit the executor by answer put in issue the question whether the decedent and Odella Garnette had agreed that a credit of $1,000.should be given on the $2,700 note as directed in decedent’s will. The $2,700'note was not put in issue. The defendant failing to support the allegations by proof with respect to an agreement between Odella Garnette and the decedent, the court instructed the jury to disregard this particular defense. Even though this matter was taken from the jury because of failure of proof, it was, neverthless, put in issue by the parties. While the $2,700 note sued upon in the instant case was introduced as an exhibit in the prior proceeding, no issue was presented as to the liability of Odella Garnette on that note. The plaintiff’s cause of action in the instant case is upon the promissory note which is a different cause of action from that sued upon in the prior action.

In Norwood v. McDonald, 142 Ohio St., 299, 52 N. E. (2d), 67, the ninth paragraph of the syllabus is as follows:

“The rule that a judgment is conclusive, not only as to what was determined in the action but as to all issues which properly might have been determined therein, is limited to cases involving a single cause of action. ’ ’

On page 305 the court said:

“* * * To constitute a bar there must be identity not only of subject matter but also of the cause of action. In other words, a judgment in a former action does not bar a subsequent action where the cause of action prosecuted is not the same, even though each action relates to the same subject matter. ’ ’ ■

On page 306 the court laid down the test as follows:

“ ‘ * the test generally applied is to consider the identity of facts essential to their maintenance, or whether the same evidence would sustain both. If the same facts or evidence would sustain both, the two actions are considered the same within the rule that the judgment in the former is a bar to the subsequent action. If, however, the two actions rest upon different státes of facts, or if different proofs would be required to sustain the two actions, a judgment in one is no bar to the maintenance of the other. ’ ’ ’

In our opinion different proofs- would be required to sustain the two actions and, hence, the test laid down, by the Supreme Court has not been met.

The executor in the prior suit could have filed a counterclaim to recover on the $2,700 note, but he did not choose to do. so. The trial court held that since he was permitted to do so he was required to file a counterclaim, and under the rule that a former judgment is conclusive between the same parties as to any matters which could have been determined, a subsequent suit could not be-maintained. We do not agree. Suit in the instant cáse is upon a different claim or demand. The judgment in the prior suit operates only as an estoppel respecting matters actually litigated. Recovery oh the $2,700 note was not litigated in the former suit. The doctrine of estoppel has application here rather than res judicata.

In Norwood v. McDonald, supra, on page 306, the court applied the doctrine of estoppel as follows:

“As distinguished from what has already been said, it must be remembered that ‘a point or fact which was actually and directly in issue in a former action and was there passed upon and determined by a court of competent jurisdiction cannot be drawn in question in any future action between the same parties or their privies, whether the cause of action in the two actions be identical or different.’ But the effect of such determination goes no further, by way of barring the second action, than to settle as a finality the point .or fact litigated in the first action. This doctrine is based upon estoppel rather than upon res judicata.”

It is our conclusion that the facts in this case fall within the rule stated in 23 Ohio Jurisprudence, 981, Section 749, as follows:

“In accordance with the rule prevailing in other jurisdictions generally, it is established in Ohio that when the second action between the same parties or their privies is upon a different claim, or demand, or cause of action, the judgment in the first suit operates as an estoppel only as to the points or questions, actually litigated and determined, and not as to other matters which might have been litigated and determined. In other words, in order to make a judgment at law conclusive between the same parties or their privies in a subsequent ■ suit on a different cause of action, the matter attempted to be disputed in the subsequent suit must have been put in issue in the first action, and therein necessarily tried and determined. ’ ’

Was the defendant in the prior suit required to set up a counterclaim on the $2,700 note? It has been held that under Sections 11315, 11337 and 11624, General Code, a defendant may, but is not required to, set up a counterclaim. Detroit, Toledo & Ironton Rd. Co. v. Pitzer, 42 Ohio Law Abs., 494, 497, 61 N. E. (2d), 93; State, ex rel. McHenry, v. Calhoun, 87 Ohio App., 1, 93 N. E. (2d), 317. See, also, 8 A. L. R., 695. In 23 Ohio Jurisprudence, 986, Section 754, the text is as follows:

“To the general rule applying the doctrine of res judicata to defenses which could have been litigated in the prior action, there is an exception where the facts claimed to afford a defense aré sufficient to constitute a setoff, counterclaim, or cross action, at least under statutes which provide that if the defendant omits to set up the counterclaim or setoff, he cannot recover costs against the plaintiff in any subsequent action thereon, except in cases specially provided for.”

The effect of the failure of the defendant in the prior action to set up a counterclaim on the promissory note here sued upon is covered in Section 11624, General Code, which in part provides:

“If a defendant omits to set up a counterclaim or setoff, he cannot recover costs against the plaintiff in any subsequent action thereon.”

Under the provisions of this section the plaintiff in this action would not be permitted to recover his costs. See Witte v. Lockwood, 39 Ohio St., 141; State, ex rel. McHenry, v. Calhoun, supra; 36 Ohio Jurisprudence, 580, Section 92.

In our opinion the defense of res judicata has not been supported by the evidence. The dismissal of plaintiff’s action constituted reversible error.

The judgment is reversed and the cause remanded with instructions to sustain the motion to vacate the judgment and for further proceedings according to law.

Judgment reversed.

Miller, P. J., and Hornbeok, J., concur.


source: Caselaw Access Project

author: Fess, J.

license: Public Domain

text:
    The State, ex rel. Gulf Refining Co., v. DeFrance et al.

      (No. 4465
    Decided May 8, 1950.)

      Messrs. Zachman, Boxell £ Torbet, for relator.

      Mr. John J. McCarthy, director of law, and Mr. Robert B. Konwin, for respondents.
   Fess, J.

This is an action in mandamus, originating in this court, seeking to require the respondents to issue a building permit to relator for the construction of a gasoline service station at the corner of Central avenue and Goddard road in the city of Toledo.

The demurrer to the petition having been overruled, respondents filed their answer herein, to which the relator filed a reply and then moved for judgment on the pleadings.

The salient facts admitted by the pleadings are as follows:

Relator purchased the premises in question on July 9, 1947, but because of deed restrictions which did not expire until December 31, 1949, did not commence construction of the contemplated service station. Prior to January 30, 1950, the territory in which the lots were situated was beyond the limits of the city of Toledo, but on January 30, 1950, by ordinance of council, the territory was annexed to the city.

On January 30, 1950, pursuant to Sections 4366-8 and 4366-10, General Code, the Toledo council adopted ordinance No. 33-50 as an emergency measure to regulate the location of trades and industries, to regulate and determine setback building lines and to prescribe penalties for the violation of its provisions within the territories newly annexed to the city of Toledo. No hearing or notice thereof, as provided by Section 4366-11, General Code, was had prior to the passage of the ordinance.

On the same day, the council passed resolution No. 27-50, submitting to the city planning commission a proposed change in zoning maps by including thereon classification of property annexed, and also resolution No. 28-50 authorizing notice by publication of a public hearing to be held March 8, 1950, on a proposed ordinance to change the zoning maps.

In its petition relator alleges in substance that its plans and specifications were in proper order and in compliance with all lawful rules and regulations and that its application for a building permit filed March 7, 1950, was rejected by the respondents upon the sole ground that the zoning ordinance, originally enacted in 1923, as amended did not cover relator’s premises and that pending the enactment of a zoning ordinance, covering the premises in question, respondents “did not wish to take the responsibility of granting said permit.” Respondents.’ answer does not admit this allegation, but it is conceded that the granting of the permit was refused, and that no objection was made to the plans and specifications.

The petition alleges further that ordinance No. 33-50 was passed without hearing and notice as required by Section 4366-11, General Code; that the ordinance constitutes spot zoning in violation of the Constitution of the United States and the Constitution of Ohio; that the ordinance was passed as an emergency or stopgap measure pending the adoption of a valid zoning ordinance; that it is without reasonable application to the present valid use of property covered thereby; and that it has no uniform application and no reasonable relation to the health, safety, and general welfare of the public and is void.

So far as the federal and state Constitutions are concerned, it is clear that an Ohio city has the right to adopt a comprehensive zoning ordinance. Village of Euclid v. Ambler Realty Co. (1926), 272 U. S., 365, 71 L. Ed., 303, 47 S. Ct., 114, 54 A. L. R., 1016; Pritz v. Messer (1925), 112 Ohio St., 628, 149 N. E., 30. In the latter .case a majority of the court were of the opinion that a municipality is doubly empowered to enact zoning legislation, having been given such authority both by the Legislature and the Constitution.

In our opinion overruling the demurrer, we stated that authority for the enactment of zoning ordinances may be derived from the city charter adopted pursuant to Article XVIII of the Constitution, or that such ordinances may be enacted pursuant to the provisions of Sections 4366-7 to 4366-12, General Code. A more exhaustive examination of the authorities, however, reveals that this conclusion may not be altogether accurate. Under Section 3 of Article XVIII of the Constitution all municipalities, whether charter or non-charter, have authority to exercise all powers of local self-government and also to adopt and" enforce within their limits such local police, sanitary, and other similar regulations as are not in conflict with general laws. Under Section 7 of Article XVIII, any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of Section 3, exercise thereunder all powers of local self-government. Authority to exercise such powers of local self-government is derived directly from the Constitution. Village of Perrysburg v. Ridgeway, a Taxpayer, 108 Ohio St., 245, 140 N. E., 595; Village of Struthers v. Sokol, 108 Ohio St., 263, 140 N. E., 519; Wilson v. City of Zanesville, 130 Ohio St., 286, 199 N. E., 187; City of Cleveland v. Terrill, 149 Ohio St., 532, 80 N. E. (2d), 115.

The powers granted by the Constitution may be exercised by a municipality without a charter. A charter is adopted by the people of a municipality pursuant to the Constitution, and, subject to such limitations as may be provided therein and to the limitation in Section 3' that certain powers — police, etc. — shall not be exercised in conflict with general laws, the charter limits, governs, and controls the council very much the same as the Constitution limits, governs, and controls the General Assembly. Bauman v. State, ex rel. Underwood, Dir. of Law, 122 Ohio St., 269, 171 N. E., 336. It would seem that upon the adoption of a charter, the power granted to municipalities under the Constitution should be then exercised under the provisions of the charter rather than directly under Section 3 of Article XVIII of the Constitution; and that a charter city thus becomes an imperium in imperio. Nevertheless, it appears that the council of a charter city, in the absence of an enumerated power in the charter, may exercise an unenumerated power directly under Section 3. A distinction is to be drawn, however, between the powers of a municipality under the Constitution and the manner of the exercise of such powers. All proper powers are derived from the Constitution either with or without a charter. But such powers are to be exercised in the manner prescribed by the Constitution, by the charter, by general laws, or by ordinance.

In Bauman v. State, ex rel. Underwood, supra, the issue was whether the Akron council, by a majority vote, could amend a zoning ordinance, notwithstanding the fact that the planning commission refused to approve such amendment, and the further fact that the original zoning ordinance provided that it could be amended only by a three-fourths vote when the amendment had not been approved by the planning commission. The court held that the council could not divest itself of the power conferred upon it by charter to enact legislation by a majority vote.

The court in the Bauman case held also that Section 4366-12, General Code, yields unrestricted powers to municipalities in respect to zoning, if such powers are granted by the municipal charter, and that the Akron charter conferred upon its council full and complete power to enact and amend any zoning ordinance by a majority vote.

In State, ex rel. Fairmount Center Co., v. Arnold, Dir. of Service (1941), 138 Ohio St., 258, 34 N. E. (2d), 777, 136 A. L. R., 840, the Supreme Court held that a municipal council, acting under Sections 4366-7 to 4366-11, General Code, may not amend or change the number, shape, area, or regulations of, or within, any zoning district without following the procedure provided for in Section 4366-11, General Code. The charter in this case was quite different from the Akron charter. It provided, inter alia:

“There are hereby reserved to the city of Shaker Heights all powers, general or special, governmental or proprietary, which may now or hereafter lawfully be possessed or exercised by any municipal corporation of Ohio. No enumeration herein of specific powers shall be held to be exclusive.

“The powers of this city may be exercised in the manner prescribed in this charter, or, to the extent that the manner is not prescribed herein, in such manner as the council may prescribe. The powers of the city may also be exercised, except as a contrary intent appears in this charter or in the enactments of the council conformably thereto, in such manner as may now or hereafter be provided by the general law of Ohio.” (Italics from Supreme Court opinion.)

Although not referred to in the opinion, the Shaker Heights charter also provided for a planning commission with such powers as might be conferred on it by ordinance of council with respect to zoning of the city for any lawful purposes and such powers as then or thereafter might be conferred upon it by ordinance of the council or the general law of Ohio. In its opinion, the court said:

“There being no contrary intent in the charter or in the enactments of council conformably thereto, so far as the record shows, and council having proceeded in the enactment of ordinance No. 4708 [the rezoning ordinance] in accordance with Section 4366-11, General Code, it is clear that in the matter of zoning, council was proceeding under the legislative authority of Sections 4366-7 to 4366:11, General Code. Therefore the above quoted exception in Section 4366-12, General Code, is not applicable. ’ ’

Section 4366-12, General Code, provides:

“Nothing contained in the foregoing Sections 4366-7 to 4366-11, inclusive, shall be deemed to repeal, reduce or modify any power granted by law or charter to any municipality, council, or other legislative body of a municipality * * * under Article XVIII of the Constitution of Ohio.”

The court distinguished the Bauman case because the record showed the proceedings there were under the Akron charter, which contained ample provision for the enactment of zoning regulations.

It will be noted, however, that the Shaker Heights charter reserved to the city all powers which may be lawfully possessed or exercised by any municipal corporation of Ohio, and that the powers of the city may be exercised also in such manner as may be provided by the general law of Ohio. If the power to enact zoning regulations were derived from the Constitution under the general reservation of all powers lawfully possessed, it would seem that the passage of the zoning act in conflict with the statute would be exempt under that portion of Section 4611-12, General Code, “nor to impair or restrict the power of any municipality under Article XVIII of. the Constitution of Ohio.” But in the cases involving the Akron and Shaker Heights zoning ordinances, the court holds that Section 4366-12, General Code, yields unrestricted powers to municipalities in respect to zoning, if such powers are granted by the municipal charter. See Bauman v. State, ex rel. Underwood, supra, and State, ex rel. Fairmount Center Co., v. Arnold, supra.

It is the contention of the respondents that the Toledo charter, in Section 8, specifically provides for zoning regulations. We find no such specifically enumerated powers in the Toledo charter. It is contended further that authority for the enactment of zoning regulations is found in Section 10, reading as follows:

“Sec. 10. Enumeration not Exclusive. The enumeration of particular powers by this charter shall not be held or deemed to be exclusive; but in addition to the powers enumerated or implied therein or appropriate to the exercise thereof, the city of Toledo shall have and may exercise all other powers which ¡under the constitution and laws of Ohio now are, or hereafter may be, granted to cities.- Powers proper to be exercised and not specially enumerated herein, shall be exercised and enforced in the manner prescribed by this charter; or, when not prescribed herein, in such manner as shall be provided by ordinance or resolution of the council, or by statute.”

Although the phraseology is different, the unenumerated powers of the city of Toledo are to be exercised in the same manner as those of the city of Shaker Heights, namely, (a) as prescribed by the charter, (b) as provided by council, or (c) by statute.

The Toledo charter provides also for a planning commission but its duties are confined to municipal planning and no specific power to zone is provided.

As in the Shaker Heights case, the question here presented turns upon whether the council of Toledo attempted to proceed under the charter or under the statute. The title of ordinance No. 33-50 refers to Sections 4366-8 and 4366-10, General Code, but no reference to such sections is made in the body of the ordinance and the title must be disregarded. However in enacting resolutions Nos. 27-50 and 28-50, the council was complying with the provisions of Sections 4366-7 to 4366-11, General Code. In the absence of specific power to zone in the charter, it is apparent that the city council was proceeding under the statute rather than under an unenumerated power derived from the Constitution. Such procedure brings the enactment of ordinance No. 33-50 squarely within the facts as well as the law of the Fairmount Center Co. case. We therefore hold that ordinance No. 33-50 is invalid and that relator is entitled to a peremptory writ of mandamus.

Upon the admitted facts in the pleadings, relator is likewise entitled to its writ upon another ground. Section 2 of ordinance No. 33-50 provides:

“Section 2. Use Begulations. Whenever four-fifths (4/5) of the frontage of lots on any street between two intersecting streets contain, at the time of the passage of this ordinance, structures exclusively residential, no structure shall be built or altered for business or factory purposes therein unless there are on file at the office of the commissioner of inspection the written consents of the owners of three-fonrths (3/4) of the entire frontage at the time of the issue of the permit.”

Attached to respondents’ answer and made a part thereof is exhibit “G” containing a plat of the territory in question which shows that relator’s lots abut breadthwise on Central avenue between Goddard and Cheltenham roads and that there are no residential structures on either side of Central avenue between such roads. One of relator’s lots abuts 67 feet on Central avenue and 119.23 feet on Goddard road. Respondents contend that the word “frontage” as used in section 2 of the ordinance should include frontage on Goddard road and exclude frontage on Central avenue; and that more than four-fifths of the frontage of lots on Goddard road between Central avenue and Hughes drive contains structures exclusively residential. This is disputed by the relator, which contends that less than four-fifths of the lots on Goddard road between such intersecting streets contains residential structures. This presents a question of fact which the court can not determine upon a motion for judgment on the pleadings.

However, we construe the term “frontage” as used in section 2 of the ordinance as having its ordinary meaning, that is, normally a lot fronts breadthwise and not lengthwise. In Haviland v. City of Columbus, 50 Ohio St., 471, 34 N. E., 679, the court made a distinction between fronting and abutting. In City of Toledo v. Sheill, 53 Ohio St., 447, 42 N. E., 323, 30 L. R. A., 598, the court said, as shown by the first paragraph of the syllabus:

“Where the boundary lines of a corner lot extend along one of its two abutting streets a materially greater distance than along the other, a presumption arises that it fronts upon the latter street.”

These cases arose under Section 3812, General Code, providing for the assessment of street improvements “by the foot front of the property bounding and abutting on the improvement. ’ ’ The court held that a corner lot abutting lengthwise on the improved street should be assessed according to its-breadth and not its length of footage. These eases were specifically overruled in City of Youngstown v. Fishel, 89 Ohio St., 247, 104 N. E., 141, but the later case did not overrule the definition of the word “front.” Ordinances which restrain the exercise of an owner of the use of his premises or impose restrictions upon the use of private property are to be strictly construed, and the scope of such ordinance can not be extended to include limitations not therein clearly prescribed. State, ex rel. Moore Oil Co., v. Dauben, Bldg. Inspector, 99 Ohio St., 406, 124 N. E., 232; State, ex rel. Ice & Fuel Co., v. Kreuzweiser, Inspector of Bldgs., 120 Ohio St., 352, 166 N. E., 228.

We therefore find on the pleadings that the phrase “frontage of lots on any street between two intersecting streets” as applied to the instant case refers to the frontage of the lots on Central avenue and does not include the lots on Goddard road, along which relator’s lot extends lengthwise.

Bespondents have moved for leave to file an answer setting forth: (1) The council of the city of Toledo at its session on April 24, 1950, repealed ordinance 33-50 and (2) the council of the city of Toledo at its session on April 24, 1950, enacted permanent zoning of relator’s premises after due notice and hearing and upon the recommendation of the planning commission.

This action having been instituted on March 10,1950, the question presented is whether the relator was then entitled to the writ of mandamus prayed for. Any action thereafter taken by the municipal authorities cannot serve to defeat that right or affect the jurisdiction of the court to grant the remedy to which the relator was then entitled. Hauser, Commr. of Bldgs., v. State, ex rel. Erdman, 113 Ohio St., 662, 150 N. E., 42; State, ex rel. Gaede, v. Guion, Commr. of Bldgs., 117 Ohio St., 327, 158 N. E., 748; State, ex rel. Ice & Fuel Co., v. Kreusweiser, Inspector of Bldgs., supra; Bauman v. State, ex rel. Underwood, Director of Law, supra; State, ex rel. Fairmount Center Co., v. Arnold, Dir. of Service, supra.

The fact that the council may have repealed ordinance No. 33-50 and enacted a permanent zoning ordinance is therefore immaterial, and not a defense to relator’s right to relief. The application to amend will therefore be denied.

In view of the foregoing, we conclude that relator’s right to require the issuance of the permit is clear and it is apparent that no valid excuse can be given for not doing it, and that therefore the peremptory writ should issue.

Writ allowed.

Conn and Carpenter, JJ., concur.


author: Hurd, J. McNamee, J.,

text:
    Heald, Jr., Appellant, v. Goebel et al., Appellees; Youghiogheny & Ohio Coal Co., Garnishee.

      (No. 21998
    Decided August 16, 1950.)

      Messrs. Bulldey, Butter & Pillen, for appellant.

      Messrs. Squire, Sanders & Dempsey, for appellees.
   Hurd, J.

This is an appeal on questions of law from an order of the Common Pleas Court of Cuyahoga County wherein that court granted separate motions to discharge attachments and overruled separate motions for new trials. The plaintiff and the two individual defendants are nonresidents of the state of Ohio, all being residents of Ligonier, Pennsylvania.

The record shows that on May 9, 1950, the plaintiff instituted suit in Cuyahoga county alleging that the defendants were indebted to him in the sum of $10,-291.40, and asserting, among other things, that the individual defendants were “associated together and doing business as coal producers and brokers, sometimes trading under the name and style of Green Valley Coal Company, Ligonier, Pennsylvania.” Plaintiff alleged further that the third party defendant, the garnishee herein, was an Ohio corporation with its principal office in the city of Cleveland.

Contemporaneously with the filing of the petition, plaintiff filed an affidavit in attachment on the ground of nonresidence, alleging that the corporate defendant “is indebted to one or both defendants,” and that the indebtedness of defendant Youghiogheny & Ohio Coal Company to the individual defendants is an asset of such defendants in Ohio. Plaintiff alleged further that the affidavit of attachment was made in conformity with Section 11820, General Code, for the purpose of procuring an attachment of defendant’s assets in the state of Ohio at the commencement of the action. At the same time an affidavit for service by publication was filed.

Pursuant to plaintiff’s affidavit, the clerk of Common Pleas Court issued an order of attachment without bond against the defendant garnishee. In accordance with the order of attachment, the garnishee advised the clerk of court by letter that it was indebted to the defendant Bernard J. Goebel in the total net amount of .$10,853.16; that it was indebted to Green Yalley Coal Company in the amount of $26; that it had no indebtedness owing to defendant John M. Lee; and that the sums would be held pending further order of the court.

Thereafter, the individual defendants filed separate motions to discharge the attachments and appeared specially and solely for the purpose of such motions without submitting themselves to the jurisdiction of 'the court.

: On July 14, after due notice, a hearing was held on the motions. Upon such hearing, counter affidavits of the defendants were filed, introduced in evidence and considered by the trial court. The counter affidavit of the defendant Goebel denied the allegations of the plaintiff as contained in the petition and traversed directly the statements set forth in the affidavit of attachment. He set forth in substance that he did not then have and never had had any dealings with the plaintiff; that he had never been associated with the defendant John M. Lee in the business of coal broker or producer; that he had never traded under the name of Green Valley Coal Company; that he had no interest or connection whatsoever with snch company; and that he was not indebted to the plaintiff in any sum whatsoever. Likewise, the defendant Lee filed a counter affidavit in which he deposed and said in substance that he was an individual doing business under the. name of Green Valley Coal Company; that the trade name had been duly registered in the state of Pennsylvania; that the defendant Goebel had no interest or connection whatsoever with the business conducted ' by affiant under the trade name of Green Valley Coal Company; and that the defendant Goebel was not connected with the affiant in any of the transactions between the plaintiff and the affiant or between Heald Coal Company and Green Valley Coal Company. In short, his statement corroborated completely the allegations of fact contained in Goebel’s affidavit. However the affiant Lee stated that he himself had done business with Heald Coal Company, the trade name of the plaintiff, which trade name to the best of his knowledge had not been registered in the state of Pennsylvania, and then alleged that there was not due or owing to the plaintiff herein any sum whatsoever from the affiant or from Green Valley Coal Company, and that the plaintiff had failed to set forth as credits on account “at least three payments to Heald Coal Company from Green Valley Coal Company in the total amount of $16,081.44.”

Supporting the affidavits there was filed and introduced in evidence the certificate of the secretary of the commonwealth of Pennsylvania, certifying that defendant John M. Lee carried on a business under the name and style of Green Valley Coal Company at Ligonier, Pennsylvania, and that he was engaged in the business of operating coal lands, buying and selling coal, and inspecting coal for shipment, and also the certificate of the prothonotary of Westmoreland county, Pennsylvania, certifying that there had been filed in his office the certificate provided for in the act of the General Assembly above described.

The bill of exceptions sets forth the fact that the plaintiff was present in the courtroom at the time of the hearing on the motions to discharge the attachment but did not take the witness stand to offer testimony contradicting the allegations contained in the counter affidavits of the defendants.

By journal entry dated July 24,1950, the trial court granted the motion of the defendant Goebel to discharge the attachment and ordered the garnishee to release all the attached funds of Goebel to him and allowed the plaintiff until July 28, 1950, to file his appeal to this court provided that with such appeal the plaintiff give bond to the defendants with surety to be approved by the clerk of the Court of Appeals in double the amount of the appraised value of the property which had been attached, conditioned to pay said defendant in the manner provided by law.

A motion for new trial having been filed, the same was overruled July 27, 1950, at which time the trial court, by journal entry, again ordered the garnishee to release all the attached funds of Bernard J. Goebel as well as the attached funds of Green Valley Coal Company to each of them respectively and then extended the time for appeal to August 4, 1950, under the same conditions set forth in the previous order. The plaintiff then appealed to this court, but has not up to this date posted bond as ordered by the trial court

The case here was advanced for hearing on application of plaintiff at which time the defendants again .entered their appearance specially and solely for the purpose of the motions without submitting themselves to the jurisdiction of this court, and each defendant filed separate motions to dismiss; the first motion on the ground that this court is without jurisdiction to hear this appeal and the second for failure of plaintiff to comply with the journal entry appealed from by filing bond in accordance with the order of the trial court. The cause is now before us on said motions of defendants to dismiss and upon the appeal of the plaintiff.

The assignments of error are as follows:

“1. The trial court erred in granting the separate motions of defendants to discharge attachment.

“2. The trial court erred in entering its order having the effect of terminating the jurisdiction of the court over the defendants when the plaintiff had not had his day in court, and defendants, electing to enter only a special appearance, waived their right to deny plaintiff’s allegations, or to demur.

‘ ‘ 3. The trial court erred in its order requiring the plaintiff to file an appeal bond in a sum double the amount of the appraised value of the property attached.

“4. Other errors manifest on the face of the record.”

It should be observed at the outset that whatever jurisdiction is had either by the trial court or this court is solely in rem. The defendants being nonresidents, the only way in which the trial court acquires jurisdiction over them is by the seizure of property lying within the territorial jurisdiction of the court under the order of attachment. Thus, there can be no judgment in personam but in rem only, and any judgment rendered could have no effect beyond the appropriation of the attached property to the satisfaction of the debt and costs. See Pilgrim Distributing Corp. v. Galsworthy, Inc., 148 Ohio St., 567, 76 N. E. (2d), 382.

It has been the contention of the plaintiff, both in oral argument and by way of brief, that on the motion to discharge the attachment the trial court should have considered only the proposition of nonresidence of the defendants and, that being admitted, the motion to discharge the attachment should have been overruled.

At the commencement of the action the attachment was secured through the clerk of court, without the intervention of a judge or an order of the court, under favor of Section 11820, General Code, which provides in substance that an order of attachment shall be made by the clerk of the court in which the action is brought in any case mentioned in Section 11819, General Code, when there is filed in the office of the clerk an affidavit of the plaintiff, his agent, or attorney, showing the nature of the plaintiff’s claim, that it is just, the amount which the affiant believes the plaintiff ought to recover and the existence of any one of the grounds for attachment enumerated in Section 11819.

Section 11819, General Code, provides that in a civil action for the recovery of money, at or after its commencement, the plaintiff may have an attachment against the property of the defendant upon, any of the grounds therein mentioned. Ground two is that the defendant “is not a resident of this state.” The last paragraph of Section 11819, General Code, specifically provides that an attachment shall not be granted on the ground that the defendant is not a resident of Ohio, for any claim other than a debt or demand arising upon contract, judgment, or decree, or for causing damage to property or death or personal injury by negligent or wrongful act. In this case, as indicated, the plaintiff predicates his right of attachment on the ground that defendants are nonresidents and that the debt or demand is one arising upon contract. It follows, therefore, that unless the plaintiff shows by the requisite degree of proof that his debt arises upon contract his right of attachment must fail. To hold otherwise would be in direct contravention of the express terms of the statute which gives rise to the right of attachment. Nonresidence alone is not sufficient. There must, perforce, coexist, as an incident to the right of attachment, one of the conditions set forth in the last paragraph of Section 11819, General Code. Therefore, where the plaintiff relies upon non-residence as a ground for attachment in respect of a claim arising on contract, proof of the latter is a condition precedent which must be sustained by the plaintiff on a hearing to discharge such attachment. The claim that the court may not inquire into this condition precedent, upon the assertion that the court will be going into the merits of the original case to which the defendant has not pleaded over, is, therefore, untenable.

It is stated in 4 Ohio Jurisprudence, 273, “Attachment,” Section 209:

“It would seem obvious, however, that an attachment would be discharged on the ground that the action was not one of the class of actions in which an order of attachment may be obtained. Thus, it might be alleged that the action was not upon a claim arising upon a contract, judgment, or decree although the attachment was obtained upon the ground of non-residence.”

The majority of this court, therefore, holds that nonresidence alone is not sufficient to sustain an order of attachment at the commencement of the action, but that the provisions of Section 11819, General Code, require the existence of one or more of the conditions enumerated therein as a condition precedent before an attachment can be sustained where such attachment is challenged upon hearing of a motion to discharge.

We come next to a question more or less procedural in character which relates to the burden of proof on such a hearing. From the earliest days the rule in Ohio has been that the burden of proof is upon the party seeking the attachment at the commencement of an action. See Coston v. Paige, 9 Ohio St., 397, the second paragraph of the syllabus of which is as follows :

“The charge thus made, if denied by the defendant, must be sustained by the plaintiff to the satisfaction of the court; upon the plaintiff, by the denial, is thrown the burden of proof.”

This proposition was concurred in by a unanimous court although Peck, J., dissented as to the first paragraph of the syllabus, the import of which is not in issue here. At page 398, we find the following cogent language by Gholson, J.:

“We have examined the affidavits as to the truth of the facts charged in the affidavit. In assigning the reasons for his decision, upon that part of the motion, the judge of the Court of Common Pleas appears to have supposed that, the charge being made, it must be disproved by a clear preponderance of evidence, thus assuming that the burden of proof in such a case was thrown on the defendant. To this reasoning we can not assent. If the charge be made by the plaintiff and denied, and nothing appears to authorize greater credit to be given to the statements of the plaintiff than to those of the defendant, the attachment ought to be discharged. When the charge is made and denied, the burden of proof is, we think, thrown on the plaintiff, and he ought to satisfy the court that the charge he has made is well founded.”

We are unable to find any disapproval of this case by later Supreme Court decisions. On the contrary the doctrine has been supported in cases dealing with the subject. See 4 Ohio Jurisprudence, 280, “Attachment,” Section 216, and numerous eases thereunder cited, including Coston v. Paige, supra, and Seville v. Wagner, 46 Ohio St., 52, 18 N. E., 430, the second paragraph of the syllabus of which is as follows:

“Where the weight of the evidence is the only question presented by such bill of exceptions, this court will not enter upon its review, or disturb the judgment of the court below thereon; but when the party against whom an order of attachment is obtained, in support of his motion to discharge the same, by his affidavit denies the ground of the attachment stated in the affidavit therefor, it devolves upon the party procuring the attachment, to establish such ground by proper evidence; and whether there is any evidence tending to sustain it, is a question of law, which the parties may have determined by this court.”

To the same effect are the Court of Appeals cases of Morelli v. Thombs, 35 Ohio App., 233, 172 N. E., 381, and McCray Refrigerator Sales Corp. v. Logan, 36 Ohio App., 201, 172 N. E., 699. The latter case was decided by this court on May 5, 1930. The second paragraph of the syllabus thereof is as follows:

“On motion to dissolve attachment, where defendant introduces counter testimony, and plaintiff relies solely on affidavit, attachment must fail.”

At pages 203 and 204 of the same case, Sullivan, J., speaking for a unanimous court, said:

“It is a well-settled proposition of law that, where there is counter testimony in a motion to dissolve an attachment, in the absence of further testimony on the part of the party attaching, the claim for attachment must fail. The reason for this is that the assertion of fact in the affidavit is mainly for the purpose of securing the attachment, and not for the purpose of creating testimony as to any issue of fact that may arise thereon, unless additional testimony is offered.”

The same rule applies in many other jurisdictions where there are comparable statutes, but we believe that it is sufficient for the purpose of this opinion to confine our consideration to the law of Ohio.

The only case cited contra by plaintiff is Ascherenka v. Lonsdale Manufacturing Co., 20 Ohio App., 123, 153 N. E., 150. An examination of that case discloses that it is not in point with respect to the issues in this proceeding. The question there raised applied directly to the merits of the original case as indicated by the opinion of Buchwalter, J., and as appears by the 'second paragraph of the syllabus, which is as follows:

‘ ‘ The grounds stated in a motion' to discharge an attachment, that plaintiff had entered his appearance and elected to pursue his remedy in a chancery court of another jurisdiction and was enjoined by said chancery proceeding from prosecuting his claim against defendant in any other cause, are matters of defense and cannot be presented on a hearing on such motion to discharge.”

Coming now to apply the law to the facts established by the evidence as set forth in the record, we find that the affidavit filed by plaintiff in order to secure the attachment was more than counterbalanced by the affidavits and supporting certificates filed on behalf of the defendant Goebel to the effect that the claim of the plaintiff did not arise and could not have arisen upon contract, either express or implied, so far as the claim of plaintiff against defendant Goebel is concerned.

As previously indicated, the affidavit of the defendant Goebel is supported not only by the affidavit of the defendant Lee but is supported further by the certificate of the secretary of the commonwealth of Pennsylvania certifying to the use of the fictitious name of Green Valley Coal Company by John M. Lee alone and showing no relation of the defendant Goebel with the enterprise carried on under such name.

On this state of the record “the burden of proof was thrown” upon plaintiff to sustain his claim for attachment against the defendant Goebel by producing further evidence. This the plaintiff failed to do although present in the courtroom at the time of the hearing.

Therefore, we conclude that the order of the trial court granting the motion to dissolve the attachment as to the defendant Goebel must be affirmed and the attachment, as to him, discharged.

In relation to the defendant Lee it will be noted that ■the garnishee answers that it has no indebtedness to him, but that there is a credit in favor of the Green Valley Coal Company (a fictitious trade name of defendant Lee) in the amount of only $26, a sum obviously not within the jurisdiction of Common Pleas Court, which court, in civil actions, has original jurisdiction where the sum involved exceeds the exclusive jurisdiction of justice of peace courts, which is limited in amount to $100. This action being in rem only, no jurisdiction is acquired over the defendant Lee.

Before concluding, we wish to make reference to the four separate motions of defendants to dismiss this appeal.

The contention is made by defendants that no bond having been filed by plaintiff either in compliance with the journal entry of the Court of Common Pleas or at any other time, this court has no jurisdiction to hear this appeal from the granting of a motion dissolving an attachment on the ground that the statutes granting the right to an order of attachment require a bond to be filed by the person seeking the attachment at any time the trial court may order it as a prerequisite to further prosecution of the attachment.

The further claim is made that the provisions of Section 11866, General Code, which in positive language states that “the party who appeals must give a bond to the adverse party, with surety to be approved by the clerk of the Court of Appeals, in double the amount of the appraised value of the property attached, ’ ’ are mandatory and, the plaintiff having failed to comply with the order of the court specifically made as a condition of the appeal, the same should be dismissed. In view, however, of our decision of this case on the merits of this appeal, we deem it unnecessary to pass upon the motions to dismiss.

The judgment of Common Pleas Court granting the motions of the defendants to discharge the orders of attachment is affirmed and attachments discharged.

Judgment affirmed.

Phillips, J., concurs.

McNamee, J.,

dissenting. The record discloses that defendants in their affidavits admitted they were nonresidents of this state, The other averments in their affidavits traversed the allegations of plaintiff’s petition and included a denial that defendants were associated together in relation to the transactions referred to in plaintiff’s petition and further denials by both defendants that defendant Goebel, either individually or as an associate of defendant Lee, had ever done business with or promised to pay plaintiff for shipments of coal.

Plaintiff took the position that these averments in defendants’ affidavits related to the merits of the principal action and ought not to be considered in a hearing of a motion to discharge the attachment where defendants appeared specially and solely for the purpose of the motion. There is abundant authority to support this position. 4 American Jurisprudence, 934, Section 635; 7 Corpus Juris Secundum, 606, Section 416; Asamen v. Thompson, 55 Cal. App. (2d), 657, 131 P. (2d), 839; Singer v. Shapiro, 133 N. J. Law, 133, 43 A. (2d), 12; Aurbach v. Grand National Pictures, Limited, 176 N. Y. Misc., 1031, 29 N. Y. Supp. (2d), 747, affirmed without opinion 263 App. Div., 712, 31 N. Y. Supp. (2d), 670; Republic Truck Sales Corp. v. Peak, 194 Cal., 492, 229 P., 331.

There was no indication by the trial court that its consideration of the affidavits of defendants was limited to a determination whether plaintiff could sustain his claim of contractual relations with both defendants as joint obligors. Plaintiff did not testify in support of the allegations of his petition and affidavit in attachment that were traversed by the affidavits of defendants. However, plaintiff did offer to submit to interrogation by the trial court. The court declined to examine him. In view of these circumstances, the application herein of the rule laid down in Coston v. Paige, 9 Ohio St., 397, Seville v. Wagner, 46 Ohio St., 52, 18 N. E., 430, and Morelli v. Thombs, 35 Ohio App., 233, 172 N. E., 381, is unwarranted.

It is settled law that the attachment statutes of Ohio and the procedure incident thereto are of a remedial nature and must be construed liberally for the benefit of the attaching party. Northwestern Yeast Co. v. Broutin, 133 F. (2d), 628; Weirick v. Mansfield Lumber Co., 96 Ohio St., 386, 117 N. E., 362; Hart v. Andrews, 103 Ohio St., 218, 132 N. E., 846; Smith v. Buck, 119 Ohio St., 101, 162 N. E., 382, 61 A. L. R., 1343.

Assuming this court has jurisdiction on appeal, the attachment ought to be sustained and the cause remanded to the Common Pleas Court for further proceedings on the motion to discharge the attachment so as to enable the trial court to inquire and the plaintiff to testify in respect of his alleged contractual relations with both defendants jointly.

I am of the opinion, also, that upon a hearing of a motion to discharge the attachment under the circumstances disclosed by the record in this case, the plaintiff is not required to sustain the burden of proof on the issue of the alleged contract with both defendants. If, upon a hearing of the motion, the court is satisfied that plaintiff’s claim is fictitious or not supported by credible evidence, the attachment ought to be discharged.' However, if plaintiff offers evidence that establishes a prima facie case and a bona fide dispute between the parties on such issue, the attachment ought to be sustained. Granting that a joint contract is a condition qualifying plaintiff’s right to an attachment against the property of both defendants as nonresidents of the state, it is also a matter that relates directly to the merits of the main action and plaintiff is entitled to a determination thereof, upon the weight of the evidence, in a trial by a jury.

Phillips, J., of the Seventh Appellate District, sitting by designation in the Eighth Appellate District.


author: Putnam, J.

text:
    Superior Dairy, Inc., Appellant, v. The Stark County Milk Producers’ Assn. et al., Appellees.

      (No. 2397
    Decided June 14, 1950.)

      Mr. Warren G. Smith, for appellant.

      Messrs. Day, Cope, Ketterer, Raley & Wright, for appellees.
   Putnam, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Stark County sustaining a demurrer to plaintiff’s amended petition in an action for a declaratory judgment.

The plaintiff is an incorporated middleman distributor of milk, and the defendants are a co-operative milk producers association, its officers and members.

The prayer of the amended petition is for a judgment declaring the acts of defendants, in refusing to supply plaintiff with milk, to he in violation of the Valentine Anti-trust Act of Ohio.

The amended petition of the plaintiff, the truth of which and the legitimate inferences deducible therefrom are admitted by the demurrer, has these vital allegations which are substantially as follows:

That plaintiff is a corporation duly organized and existing under the laws of the state of Ohio; that as such it is a distributor of milk in Stark county; that it purchases its milk from the members of the Stark County Milk Producers’ Association under a contract with such association; that the members of the association produce practically all the milk sold in Stark county; and that the defendant Martin R. Moomaw is the manager of the association and the other defendants are members thereof as well as representatives of the routes allocated by the association to supply milk to the plaintiff.

The plaintiff alleges further that in August 1947 it inaugurated a program whereby it proposed to give a discount of one and one-half cents per quart to its customers and public consumers who would purchase over 90 quarts of milk per month and a discount of two cents per quart to those who would purchase over 120 quarts per month; that the defendants, after first threatening to stop the sale and delivery of milk to the plaintiff if it did not cease using its discount plan, did in fact instruct their drivers not to deliver any milk to plaintiff on and after September 1, 1947; and that, pursuant to the instructions of the defendants, milk was withheld by the drivers of the association on September 1, 1947, and thereafter, until the plaintiff agreed that it would terminate its discount plan.

Plaintiff seeks a judgment declaring the rights, status and legal relations between the parties. The defendants each filed identical demurrers to the amended petition for the stated reason that it appears on the face thereof that such petition does not state facts constituting a cause of action.

This being an action for a declaratory judgment, the provisions of that act control, and in the final analysis the question dispositive of the case is whether, under the allegations in the petition, the trial court abused its discretion in refusing to entertain the cause and make a declaration of rights.

The Ohio Declaratory Judgments Act (Sections 12102-1 to 12102-16, General Code) is identical with the Uniform Declaratory Judgments Act and is cited as such (see Section 12102-16, General Code). No separate rules of procedure or pleading are provided, and the procedural and substantive law in civil cases apply except as modified by the fact that declaratory action can be asked in the place of or in addition to coercive action.

Section 12102-5, General Code, provides:

“The enumeration in sections 2, 3, and 4 [Sections 12102-2, 12102-3, and 12102-4, General Code] does not limit or restrict the exercise of the general powers conferred in section 1 [Section 12102-1, General Code] in any proceeding where declaratory relief is sought, in which judgment or decree will terminate the controversy or remove an uncertainty.”

We believe that the converse of this proposition is true, viz., that where the declaration will neither terminate the controversy nor remove an uncertainty, Sections 12102-2, 12102-3, and 12102-4 are a limitation on Section 12102-1. We are not concerned here with Sections 12102-3 and 12102-4.

Section 12102-6, General Code, provides:

‘ ‘ The court may refuse to render or enter a declaratory judgment or decree where such judgment or decree, if rendered or entered, would not terminate the uncertainty or controversy giving rise to the proceeding.”

It may be observed that the language in Section 12102-5 is, “in which a judgment or decree will terminate the controversy or remove an uncertainty.” Whereas in Section 12102-6 the language is, “would not terminate the uncertainty or controversy.” (Emphasis added.)

Query: Why this change of phraseology? This court can see no difference in the meaning of these phrases and believes they ought to be uniform.

It is to be noted that Section 12102-6 does not prohibit a court from making a declaration even if the uncertainty or controversy would not be terminated. It only gives the court discretion to refuse in that event. Consequently, a court could make a declaration where it would not terminate an uncertainty or controversy, if it chose to entertain the petition, but in that case Sections 12102-2, 12102-3, and 12102-4 would be a limitation on Section 12102-1.

We are neither begging the question nor uttering . an ipse dixit- when we hold that a declaration in this case would not terminate the uncertainty or controversy giving rise to the action. In the original petition there was no allegation of a contract. Upon the sustaining of a demurrer thereto an amended petition was filed in which it was simply alleged:

“That the plaintiff has purchased milk, since 1938, from such members of the Stark County Milk Producers’ Association as have been designated from time to time by said association to supply milk to the plaintiff, under a contract with the defendant, The Stark County Milk Producers’ Association and such designated members thereof; that the plaintiff now purchases approximately 90 per cent of its milk under said contract.”

No terms or conditions of the contract are set forth so as to show any legal obligation imposed upon any one thereunder. It is not alleged whether the contract is oral or written. Certainly it is not such an allegation as would state a cause of action in an ordinary civil proceeding. Furthermore, it was admitted in open court by counsel for the plaintiff that the only contract claimed in the petition is an implied contract to pay for milk when, if and as received, at the price demanded at the time by the defendants. It is conceded that the supply could be cut off by the defendants from the plaintiff at any time, at the whim of the defendants, and no legal liability would ensue.

Hence, the question naturally arises as to what uncertainty or controversy would be terminated by a declaration in this action. The controversy mentioned in Section 12102-6, General Code, means a controversy based upon legal rights and obligations. Two farmers could dispute vigorously at the cross roads as to whose corn was the best and certainly this would be a controversy (to put it mildly), but it would not be a controversy involving legal obligations such as the instant statute contemplates.

Would this contemplated declaration terminate an uncertainty, and, if so, what uncertainty? That the defendants will deliver milk to the plaintiff in the future under any contract or without a contract? Certainly not. It probably would only aggravate an uncertainty, and not terminate it.

In the case of United States v. Colgate & Co., 250 U. S., 300, 63 L. Ed., 992, 39 S. Ct., 465, the second paragraph of the syllabus is as follows:

‘ ‘ 2. Conduct of a manufacturer which, as intended, has the effect of procuring adherence on the part of its wholesale and retail customers to resale prices fixed by it, does not offend against the unlawful combination provisions of the Sherman Anti-Trust Act of July 2, 1890 (26 Stat. at L. 209, chap. 647, Comp. Stat., 1916, Section 8820), where there was no agreement which obligated any dealer not to resell except at the fixed prices, his course in this respect being affected only by the fact that he might, by his action, incur the displeasure of the manufacturer, who could refuse to make further sales to him.”

Consequently, in any event, we are relegated to Section 12102-2, General Code, which, under the reasoning herein, is a limitation on Section 12102-1, and which, outside the question of discretion, must be construed. This section is as follows:

“Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise and obtain a declaration of rights, status or other legal relations thereunder.”

Certainly under the Ohio decisions, which are not necessary to be quoted in detail, no declaration of rights would be proper unless the applicant had a right under a contract to have his status declared. This being so, the question resolves itself into the proposition of whether the alleged contract herein comes within the purview of the term “contract” as used in Section 12102-1, General Code. "We recognize that Borchard, in his Treatise on Declaratory Judgments, disapproves of the pronouncement in the case of Transport Oil Co. v. Bush, 114 Cal. App., 152, 161, 1 P. (2d), 1060, in which it is stated that an oral contract cannot be construed under the act. However, this same authority concedes that the construction of oral contracts under the act should be limited. We find no Ohio authorities on this proposition. It is our judgment that under the language of this section, the construction should be limited to written contracts. However, this determination is not decisive of the problem at hand. The vague, uncertain, and undefined contract set forth in the petition does not lend itself to an inclusion in the cases in which Professor Borchard states that a construction of an oral contract is proper.

Consequently, we are constrained to hold that the refusal of the trial court to entertain a petition which required the construction of a contract as uncertain as the one herein set forth was not erroneous as being a violation of Section 12102-2, General Code.

In argument, the plaintiff urged this court to make such analysis of this case, on its merits, as would aid in solving the problem presented by a possible conflict between the Co-operative Agricultural Marketing Act of Ohio (Section 10186-1 et seq., General Code) and the Valentine Anti-trust Law (Section 6390 et seq., General Code). Briefs by both parties have been exhaustive upon the merits of this proposition.

The plaintiff, on page 12 of its brief, states:

“The plaintiff wishes to make it clear that it is highly in favor of the purpose of these laws in authorizing the agricultural interests to organize so as to set a fair price at which they will market their products; but the plaintiffs feel that the Stark County Milk Producers’ Association, and other defendants, in the instant case have gone further than the law intended in seeking to control the price at which the distributors shall sell its milk to the public. It is this latter question which the plaintiff seeks to have settled in this case, so that both producers and distributors may know where the dividing line lies between them in the matter of setting prices.”

The demurrer is founded upon the statutory ground that the petition does not state facts sufficient to constitute a cause of action. In view of the pronouncement of the Supreme Court in the case of Winslow v. Ohio Bus Line Co., 148 Ohio St., 101, 117, 73 N. E. (2d), 504, it is at least a fair inference'that this court-should pass upon the question as to whether the petition states a cause of action. In view of the record and this pronouncement we shall proceed to do so.

The case of List v. Burley Tobacco Growers’ Cooperative Assn., 114 Ohio St., 361, 151 N. E., 471, was decided in 1926. At that time Chief' Justice Marshall, who wrote the opinion, and Judge Matthias, the only present day member of the court participating therein and concurring, of course, never heard of the Wagner Act and probably knew nothing of John L. Lewis. Yet at page 392 of that opinion the court states:

“In the last analysis this controversy turns upon a question of public policy. The earlier anti-trust legislation is being modified and certain well-defined exemptions are being created. The earlier decisions of the courts construing those acts strictly are being modified and overturned by later decisions. Section 6 of the Clayton Act, hereinbefore referred to, is a clear indication of a different policy on the part of Congress, and the Capper-Volstead Act * * # still further confirm the congressional trend. Still other legislation is now pending before Congress, * * * which still further extends the principle of permitting cooperation in agriculture marketing * * V’

Section 6 of the Clayton Act (Title 15, Section 17, U. S. Code; 38 Stats, at L. [pt. 1], 760) contains the following pronouncement:

“The labor of a human being is not a commodity or article of commerce. Nothing contained in the anti-trust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, Instituted for the "purpose of mutual help, and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof * * *.”

There is no place in this pronouncement for any distinction between labor organizations and agricultural organizations.

It is conceded that the Valentine Anti-trust Act of Ohio and the Co-operative Agricultural Marketing Act of Ohio were patterned after the Sherman Antitrust Act and the Clayton and Capper-Volstead Acts. It is also conceded that these acts followed a federal legislative policy.

From 1932 to the present time, we have watched that federal policy expand until now, under the Wagner Act even as modified by the Taft-Hartley Act, labor is organized by industry on a nation wide basis with such tight control over production that it is almost necessary for a plumber to call in a carpenter to sharpen his pencil. Wages are dictated to the extent that management is told that any wage increase demanded must be paid out of earnings which are derived from sales at present market prices and no increases of market prices are permitted. Sanction is given to union contracts which permit labor to work “if ready, willing, and able,” thus curtailing production and surpluses and thereby affecting prices. In Pittsburgh, at present, we are witnessing a strike of milk distributors (not producers), which is not only raising prices but also cutting off the entire supply of milk to that metropolis.

In agriculture we have seen parity prices; price supports; the killing of pigs; and the dumping of apples, potatoes, eggs, wheat, and other perishable agricultural products. We have seen single families paid a subsidy of a quarter of a million dollars or more in one year for raising potatoes which the nation did not need and could not consume. We have milk marketing acts and fair trade acts, and now a man by the name of Brannan desires to inaugurate a policy which in the end will give this country back to the Indians.

Yes, our federal and state policies have changed considerably since 1926 and especially since 1932.

Of course, as Chief Justice Marshall said, courts as such have nothing to do with legislative policy, but in the interpretation of laws they are bound to take cognizance thereof. It is immaterial whether we as judges like this legislative policy or not.

In conformity with the necessity hereinbefore expressed, we do, outside our opinion as to the discretionary prerogative of the trial court, express our holdings on the merits of the petition. In conformity with the views expressed in the List case, hereinbefore referred to, we are guided in this question by legislative policy.

We wish we could offer an ultimate solution, but, being guided by legislative policy we must await events. No man knows the limits to which present legislative policy will extend.

The alleged misconduct charged against the defendants is simply that, without any binding contract to deliver any milk to the plaintiff at any time for any price or under any conditions, but only an implied contract to pay for the milk furnished at the price demanded, defendants have informed plaintiff that they do not choose to deliver to plaintiff any milk if plaintiff cuts the retail price. Since they could at any time stop deliveries for any reason without incurring any legal obligation, it is obvious that these actions fall far short of the inhibitions judged by a 1926 standard, and certainly are remote by 1950 standards, of legislative policy. Any interpretation of these two acts which permits a labor organization to roam over an eighty acre field while confining an agriculture organization to the barn lot is neither just, desirable, nor proper.

Consequently we hold that the alleged actions of the defendants are permissible under the Co-operative Agricultural Marketing Act of Ohio and are not prohibited by the Valentine Anti-trust Act.

For both of the above reasons, viz., (1) that the court did not abuse its discretion for refusing to make a declaration herein, and (2) that the petition did not state a cause of action for declaratory judgment, the judg-, ment is affirmed.

Judgment affirmed.

Montgomery, P. J., concurs.

McClintock, J., concurs in the judgment.


author: Jackson, J.

text:
    Buess, Appellant, v. Buess, Appellee.

      (No. 388
    Decided January 18, 1950.)

      Messrs. Whetherill é Schwemmer, for appellant.

      Mr. Justin McElroy and Mr. Aaron Blackford, for appellee.
   Jackson, J.

This is an appeal on questions of law. There are six assignments which embrace the claimed errors of the trial court: (1) That the judgment is against the weight of the evidence; (2) that there was no evidence to support the judgment of divorce; (3) that if there was any evidence to support the granting of the divorce, there was no corroboration; (4) that as a result of the granting of the divorce, the custody of the son, Donald Buess, was confided to the defendant; (5) that the value of the real estate was fixed by witnesses not qualified to testify thereto; and (6) that irrespective of the value all property should have been awarded to the plaintiff instead of to the defendant.

The grounds upon which the divorce was granted to defendant consisted of gross neglect of duty and cruelty.

The evidence discloses that in 1928 the plaintiff and the defendant started living together without benefit of clergy. At that time there were six children of the plaintiff by a former husband. The children ranged in age from one to twelve years, and were named Mary, William, Charles, Marie, Harold and Marion Daniel.

At the instance of the Probate Court of Hancock County, Ohio, these parties were married in 1940, and by that time a boy and a girl were born as the issue of such relationship.

At the time of the trial in 1949 the youngest of the stepchildren, Marion Daniel, was twenty-four years of age, and the two children born to the parties, Norma Jean Buess and Donald Buess, were 15 and 12 years of age respectively.

Two injunctive orders were issued against the defendant, one of which required him to vacate the home and permit the plaintiff to occupy it alone with the children, and the second of which restrained and enjoined him from selling any property of any kind in which he had an interest.

The defendant supported the entire family, including the stepchildren, until they were able to go to work, after receiving such schooling as they desired. The history of the defendant is that of a hard working, thrifty individual who contributed all his earnings and efforts to the rearing of these children, as well as to the support of the plaintiff.

The history of the stepchildren shows a disposition not only not to observe the discipline of the defendant, but also to disregard the laws of the state and the United States. They were frequently in trouble with the law and several of them spent time in penal institutions. The defendant often furnished the money to relieve them of their indiscretions. During all this time, whether married or single, working or idle, they came back to the defendant’s home at frequent intervals, partook of his substance, and at the same time ridiculed and belittled him. Quarrels were frequent, with the plaintiff taking the side of her children, until it became so disagreeable that they would arrange to come home and eat and occupy the house while defendant was at work.

The witnesses of the plaintiff in her action for divorce, as distinguished from the witnesses as to alimony, were invariably sons and daughters and sons-in-law and daughters-in-law of the plaintiff, but not of the defendant.

The plaintiff, by a lack of discipline and the payment of allowances, alienated the two children of the parties from the defendant so that both of them were of the opinion that he was a hard disciplinarian and ■stingy, with the result that in their testimony they both indicate their desire to live with the plaintiff.

The appellant, in her brief, insists that there was no corroboration of the testimony of the defendant. However, we are of the opinion that the corroboration was full and complete in the examination and cross-examination of the plaintiff and her sons and daughters and sons-in-law and daughters-in-law.

“* * * While the earlier doctrine with respect to the nature and character of the acts required to constitute *extreme cruelty’ was that there must be either personal violence, or the reasonable apprehension thereof, or a systematic course of illtreatment affecting the health and endangering the life of the party against whom it is directed, the tendency of the more -recent decisions appears to be to give the term a somewhat broader scope, so as to include acts and conduct the effect of which is to render the marital .relation intolerable, although they do not directly affect the health of the party against whom they are directed.” 14 Ohio Jurisprudence, 389, Divorce and Separation, Section 12.

"Where, however, the conduct of a spouse is calculated permanently to destroy the peace of mind and happiness of the other so as utterly to destroy the objects of matrimony, a divorce may be granted on the ground of cruelty.” 27 Corpus Juris Secundum, 552, Divorce, Section 28.

“In such a case, where the evidence clearly discloses a course of conduct and demeanor on the part of the wife, reflecting an attitude of opposition to her husband, lending to bickerings and recriminations over a long period of time, resulting in a withdrawal of all mutual respect and consideration, and finally, a cessation of all marital relations, such a course of conduct ■and demeanor amounts to, and is, extreme cruelty and gross neglect of duty, for which reason the husband is entitled to a decree of divorce.” Stark v. Stark, 28 N. P. (N. S.), 36, fourth paragraph of the syllabus.

“The term ‘any gross neglect of duty,’ made one of the causes for divorce under Section 11979, General Code, is elusive of concrete definition and its application as a cause for granting a divorce must depend upon the circumstances of the particular ease.” Porter v. Lerck, 129 Ohio St., 47, 193 N. E., 766, paragraph nine of the syllabus.

“Where a particular case presents evidence of aggravating circumstances, the adequacy of such aggravating circumstances to constitute gross neglect of duty is a question to be decided. What one person might consider sufficient another would not. A weighing of the evidence and an appraisal of its probative value is involved.

“It is said in 19 Corpus Juris, 69: ‘Since the statutes do not define gross neglect of duty its interpretation is to be left to the sound discretion of the court.’ ” Porter v. Lerck, supra.

“As a general rule the verdict or decision of the trial court as to the sufficiency of the evidence to warrant the granting or denial of a divorce should not be disturbed on appeal unless it is very plain to the appellate court that the conclusion reached can not be supported by any rational view of the evidence.” 9 Ruling Case Law, 470, Section 284.

“In reviewing a divorce proceeding, as the trial judge in the determination of facts has the opportunity of observing the demeanor and conduct of the witnesses, and is charged with the duty of carrying out and promoting a sound public policy, he should be allowed a wide latitude of discretion.” Widican v. Widican, 23 Ohio App., 271, 155 N. E., 145.

“Without doubt courts of domestic relations have a broad discretion in actions for divorce wherein ‘any gross neglect of duty’ is an issue, and if discretion was involved in this particular case this court would dispose of it in summary fashion, because of our hesitancy to interfere therein.” Coleman, a Minor, v. Coleman, a Minor, 68 Ohio App., 410, 41 N. E. (2d), 734.

“It is our judgment that a clear discretion is lodged in a trial court when the ground for divorce is ‘any gross neglect of duty.’ "When the court is convinced from the facts before it that the power of performance abides within him who is derelict in his marital duty; and that the conduct complained of is reprehensible in one or the other understandings herein defined, the complainant is entitled to a divorce * * *.” Coleman v. Coleman, supra, at page 412.

Finding no prejudicial error in any of the particulars specified in the assignments of error and argued in the brief, the judgment of the lower court is affirmed, at the costs of the appellant.

Judgment affirmed.

Guernsey, P. J., and Middleton, J., concur.


author: Stevens, P. J.

text:
    The General Industries Co., Appellant, v. Jones, Admr. of Bureau of Unemployment Compensation, et al., Appellees. Romec Pump Co., Appellant, v. Jones, Admr. of Bureau of Unemployment Compensation, et al., Appellees. The General Industries Co., Appellant, v. Jones, Admr. of Bureau of Unemployment Compensation, et al., Appellees.
    (Nos. 1196, 1197 and 1198
    Decided March 15, 1950.)

      Mr. Richard A. Stiih, for appellant in each case.

      Mr. Herbert 8. Duffy, attorney general, Mr. George G. Steinemann and Mr. James B. Dooley, for appellees in each case.
   Stevens, P. J.

These cases are all appeals, on questions of law, perfected in accordance with, and under the provisions of, Section 1346-4, General Code, from judgments of the Court of Common Pleas of Lorain County.

Each case presents the question of the constitutionality of Section 2 of Senate Bill 348. Senate Bill 348 was passed as emergency legislation, and was signed . by the Governor of the state of Ohio on September 5, 1945, thereby becoming law upon that date. Section 2 of that act provides:

“Section 2. The provisions of this act shall apply to and govern all matters relating to unemployment compensation of an individual who became unemployed on or after August 15, 1945.”

The purpose of Senate Bill 348 (amending Section 1345-1 et seq.,' General Code, part of the Unemployment Compensation Act) was, among others, to increase the amount and duration of unemployment compensation benefits.

Each of the eases here presented involves a finding of responsibility upon the employer-appellant to pay to unemployed persons the amounts specified in Section 1 of Senate Bill 348, for the time provided therein, where the unemployment occurred prior to September 5, 1945, and applications for unemployment compensation had been filed prior to that date.

The Constitution of Ohio (Article II, Section 28) contains the following:

“Section 28. Retroactive Laws. The General Assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts * *

“Retrospective” or “retroactive” laws, the two terms being considered to be synonymous (Safford, Supt., v. Metropolitan Ins. Co., 119 Ohio St., 332, at p. 335), were defined by Mr. Justice Story in The Society v. Wheeler, 2 Gallison’s R., 105, 139, 22 Fed. Cas., 756, 767, as follows:

“Upon principle, every statute, which takes away or Impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability, in respect to transactions or. considerations already past, must be deemed retrospective * * V’ (Quoted with approval in Rairden and Burnet v. Holden, Admr., 15 Ohio St., 207, at p. 210; Commissioners v. Raschi Bros., 50 Ohio St., 103, at p. 111; and Safford, Supt., v. Metropolitan Ins. Co., supra.)

It will be remembered that under the Ohio Unemployment Compensation Act, as amended, the fund created for the payment of unemployment benefits arises only from contributions by employers. (Section 1345-4 [bj et seq., General Code.) No contribution is made thereto by the employee.

Also, the amount of contribution required from each employer in the state of Ohio, to support the fund, is ■determined by the unemployment experience at his particular plant.

It is apparent thus, that the fund for the payment of unemployment benefits to employees is created and supported by a tax in the nature of an excise tax upon the employer.

Senate Bill 348, by its terms, enlarged the benefits payable to employees, above the sum previously stipulated in the statutes, in the amount of $3 a week, and increased by two weeks the period for which such benefits could be drawn. To the extent of the increased benefits, the tax upon the employer was increased.

Thus, as to claims arising on and after August 15, 1945, and prior to September 5, 1945, there was, by said bill, a new duty imposed upon the employer as to transactions already past— L e.', the duty to pay according to a schedule of benefits provided by later passed legislation.

It seems to us that the provisions of the act requiring increased payments for increased periods of time, because of unemployment occurring prior to the effective date of the act, constitute an attempt by the Legislature, not to enact remedial legislation, but to invade the substantive rights of the employer, by imposing upon him new duties and new obligations, in respect to transactions or considerations already past. Safford, Supt., v. Metropolitan Ins. Co., supra.

To the extent that the act imposes upon employers the duty to pay unemployment compensation benefits for the period between August 15, 1945, and September 5, 1945, according to the increased schedule of benefits set out in the act which became law on September 5, 1945, the act contravenes Section 28 of Article II of the Constitution of Ohio, and is invalid.

The judgment of the Court of Common Pleas of Lorain County will in each case be reversed, and, there being no dispute of fact, this court will enter the judgments which the trial court should have entered. The allowance of the increased benefits provided in Senate Bill 348, as to claims arising before the effective date of the act, September 5, 1945, shall be set aside, and allowance shall be made in accordance with the provisions of the Unemployment Compensation Act in effect at the time the claims matured.

Journal entries in accord with this opinion may be prepared.

Judgments reversed and final judgments for appellants.

Judgments reversed.

Hunsicker, J., and Doyle, J., concur.