text:
    In re Estate of Iwinski.
    (No. 20706
    Decided November 3, 1947.)

      Mr. M. A. Picciano, for appellee.

      Mr. Ben Leclsky, for appellant.
   Hurd, P. J.

This is an appeal on questions of law from a judgment of the Probate Court of Cuyahoga county, wherein the court appointed a commission to take election for an incompetent surviving spouse, under the provisions of Sections 10504-63 and 10504-64, General Code.

The facts are not in dispute. Josefa Iwinski, decedent, came to her death at the hands of her husband, Leo Iwinski, the surviving spouse, on August 12, 1943. Thereafter, there was a finding by the criminal branch of Common Pleas Court that, at the time of the commission of the offense resulting in t'he death of his wife, the husband was insane and by reason thereof was committed by the Common Pleas Court to the Ohio State Hospital for Criminal Insane on October 7, 1943, at Lima, where he is still confined.

Josefa Iwinski left a will in which she made provision for her husband. By the terms of the will a trust was created and the trustees'were authorized in their absolute and unqualified discretion to use “the interest and any or all of the principal” of the trust estate for the husband’s benefit. This will was admitted to probate on September 14, 1943, and the record of the Probate Court shows the appointment and qualification of the coexecutrices on the 21st and 23rd days of September 1943, respectively. On September 27, 1943, one William G. Stech, the applicant herein, was appointed guardian of the person and estate of the surviving spouse. The inventory and appraisal of the estate of the decedent was approved December 4, 1943. No citation was issued by the Probate Court, nor was any subsequent election made by or on behalf of the surviving spouse. It was stipulated that counsel for the guardian of Leo Iwinski was also counsel for Irene Stech, coexecutrix under the will of Josefa Iwinski, from the inception of both proceedings and for a period of at least nine months following the approval of the inventory, to wit, December 4, 1943.

In October 1945, the guardian, William G. Stech, filed his application for the appointment of a commission to elect on béhalf of his ward. As will be noted, this date was over two years after the probate of the will and the appointment and qualification of the executrices named therein.

The principal assignment of error is:

That the court erred in appointing a commission to take election for an incompetent surviving spouse by reason of the fact that the application therefor was filed long after the statutory period providing for such election had expired.”

The issue presented therefore raises a question as to the construction of Section 10504-63, General Code, and the application thereof to the facts of the case.

Section 10504-63, General Code, reads as follows:

“When because of unsound mind, or other legal disability, the surviving spouse is unable to make an election, as soon as the facts come to the knowledge of the Probate Court, at any time within the time allowed by law for election, it shall appoint some suitable person to ascertain the value of the provision made for such spouse in lieu of the provisions made by law, and the value of the rights by law in the estate of the deceased consort.” (Emphasis added.) '

The time limit allowed by law for making such .election is provided for by Section 10504-55, General Code, the pertinent part thereof being as follows :

“The election shall be made within one month after service of the citation to elect, or if no citation is issued, within nine months after the appointment of the executor or administrator, whether or not a citation be issued as herein provided. On motion filed before the expiration of such nine months and for good cause shown, the court may allow further time for the making of the election. The election shall be entered on the journal of the court.” (Emphasis added.)

There was no motion filed before the expiration of the nine-month period from the appointment of the co-executrices, praying that the court allow further time for making the election.

Section 10504-60, General Code, creating a conclusive presumption with respect to election, is as follows:

“If the surviving spouse fails to make such election or dies before the expiration of the time limit provided by law without having made such election, such spouse shall be conclusively presumed to have elected to take under the will and such spouse who fails to elect and the heirs, devisees and legatees of such spouse who dies without having elected and those claiming through or under them shall be bound accordingly, and persons may deal with the property of the decedent in accordance therewith.” (Emphasis added.)

These statutes are in pari materia. A careful examination thereof reveals no apparent uncertainties of meaning and no apparent ambiguity of terms or conflicts of provisions. On the contrary, the language of these statutes is plain and unambiguous and conveys a clear and definite meaning. Hence there is no occasion for resorting to accepted canons of statutory interpretation.

Viewing Section 10504-63, General Code, and the sections in pari materia as a whole, to ascertain the legislative intendment, it is clear that the General Assembly by its enactment set a time limit within which elections shall be made by or on behalf of the surviving spouse and within which the Probate Court shall appoint a commission for such purpose. These sections provide also for a conclusive presumption of election to take under the will after the expiration of the time limit, unless on motion, within the time limitation, for good cause shown, the court allows an extension of time.

There is ample authority for such conclusion in the case of In re Estate of Knofler, 143 Ohio St., 294, 55 N. E. (2d), 262, where the court held that Section 10504-60, General Code, providing for a conclusive presumption of election, is not violative of due process and was constitutional in a case where the surviving spouse died without making election by reason of her continued insanity. In that case the court considered Sections 10504-63 and 10504-64, General Code, as well as Section 10504-60, General Code, and, at page 301, Williams, J., speaking for the court, stated: “Inability to make the election is not a factor of controlling importance, for the applicable part of the statutory provision applies to an insane as ivell as a sane person.” (Emphasis added.)

The plaintiff in this case argues that the use of the comma immediately following the term, “Probate Court,” in Section 10504-63, is equivalent to the use of the conjunctive “or” immediately following the term, “Probate Court,” and according to his contention provides .two separate and distinct members of the same class. We think that such a construction cannot be sustained.

Historically, Section 10504-63 is a successor statute to former Section 10574 which in respect to the clause under consideration contained precisely the same wording and punctuation. The section is similar, with a change in title. The words, “or other legal disability,” are new and would include a surviving spouse who is a minor. The section is also changed in time limitation in order to conform to cognate sections in the amended probate code. It is a reasonable assumption that, if the General Assembly had intended any other meaning than that plainly indicated, the correction would have been made at the same time the other changes were made to which we have referred.

Counsel also urges equitable considerations in favor of the surviving spouse, which we think have no application either under the facts of the instant case or under the plain terms of the applicable statute.

Counsel for plaintiff cites Ambrose v. Rugg, Admx., 123 Ohio St., 433, 175 N. E., 691, 74 A. L. R., 449, in support of their contentions. We consider that case inapplicable here due to subsequent changes in the statutory law and in view of the decision of the Supreme Court in the case, of In re Estate of Knofler, supra.

For the reasons stated, the judgment of the Probate Court is reversed and final judgment is rendered for the defendant on plaintiff’s application for the appointment of a commission to elect for the surviving spouse.

Judgment reversed.

Morgan and Skeel, JJ., concur.

       See 37 Ohio Jurisprudence, 514 et seq., Section 278 et seq., and numerous cases therein cited; 50 American Jurisprudence, 204, Section 225, and supporting authorities.

       Syllabus in In re Estate of Knofler, 143 Ohio St., 294 (decided May 3, 1944).
      “1. Section 10504-60, General Code, which provides, inter alia, that if a surviving spouse dies before the expiration of the time limit provided by law without having made an election, such spouse shall be conclusively presumed to have elected to take under the will, does not by such provision deny due process of law and is constitutional.
      “2. Where the surviving spouse of a testator dies before the expiration of the time for making election, she shall be conclusively presumed to have elected to take under the will notwithstanding that during the period between the testator’s death and her death she was continuously insane and incapable of making an election.”

       See comment in 7 Page’s Ohio General Code (Lifetime Ed.), 242.


source: Caselaw Access Project

author: Conn, J.

license: Public Domain

text:
    The State, ex rel. DeRan, v. Myers, Sheriff.
    (No. 454
    Decided July 26, 1948.)

      Mr. Hal G. DeRan, in propria persona.

      Mr. A. L. Hyser, prosecuting attorney, for respondent.
   Conn, J.

This is an action in mandamus brought in this court by relator against Herbert L. Myers as sheriff of Sandusky county, respondent, and was submitted on the petition of relator, answer of respondent, transcript of the docket and journal entries, stipulated evidence which consisted of the original papers in case No. 25025, Common Pleas Court of Sandusky county, and briefs and arguments of counsel.

From the allegations in the petition and the documentary evidence, it appears that relator is an attorney at law and as such represented one Charles S. Fox, in an action brought on July' 8, 1944, in the court •of the justice of the peace of Fremont township, San-dusky county, against one David Ellis Jones, to recover the sum of $299.99 alleged to be due Charles S. Fox for legal services. An order of attachment was issued in that action and certain personal property of the defendant then in the possession of William McC. Baumann, conciliation commissioner of Sandusky •county, was attached. Upon hearing, judgment was ■rendered for the plaintiff and the order of attachment was sustained, appeal bond given and the cause appealed to the Common Pleas Court, being cause No. '25025 in that court, and the same case referred to •above.

The issues in the Common Pleas Court, raised on the petition of plaintiff and answer of defendant, were determined in favor of plaintiff and judgment entered. On appeal to the Court of Appeals on questions of law, the judgment of the Common Pleas Court was affirmed and the cause remanded for execution.

The defendant duly filed his motion in the Supreme •Court of Ohio for an order directing the Court of Appeals for Sandusky county to certify its record, which motion was overruled on October 30, 1946. No application for a rehearing was filed in the Supreme Court ■of Ohio and no application was made to the Supreme Court of the United States for a writ of certiorari.

Prior to the commencement of the proceeding in the .justice court, to wit, on July 5, 1940, the defendant, David Ellis Jones, had filed his petition in bankruptcy in the United States District Court for the Northern District of Ohio, Western Division, pursuant to the provisions of the Frazier-Lemke Act. Subsequently, to wit, June 17,1944, on the application of David Ellis Jones, the bankrupt, the proceedings in bankruptcy were dismissed.

Relator alleges further that on November 8, 1946,. and subsequently to the overruling of the motion to-certify by the Supreme Court of Ohio, execution was issued and delivered to the sheriff of Sandusky county,, and on January 9, 1947, a levy was made on certain-real estate located in G-ibsonburg, Sandusky county.

It appears further that on the motion of David Ellis-Jones, filed in the United States District Court at Toledo, Ohio, an order was issued by Frank C. Kniffin, referee in bankruptcy, on December 9, 1946, directing Charles S. Fox and Herbert L. Myers as sheriff, to-appear on December 23, 1946, and show cause why an injunction should not issue restraining them from levying on and selling any property of the applicant David Ellis Jones. On November 15, 1946, and prior to the-hearing on that motion, David Ellis Jones filed his application in the United States District Court for injunction, accounting and other equitable relief.

It is alleged further by relator that the referee in-bankruptcy, upon the hearing of the motion to show cause, found and determined that the federal court could not exercise any control over the property of David Ellis Jones after granting his application to-dismiss the bankruptcy proceedings; that on January 8, 1947, the sheriff returned the execution with the endorsement thereon: “Property not sold pending with-decision of federal court, Toledo, Ohio”; and that on March 27, 1947, an alias execution was issued to the-sheriff and levy again made on real estate in Sandusky county, but this execution was returned “property not sold” for substantially the same reason given on the first writ. On July 14, 1947, venditioni exponas order of sale was issued to the sheriff and on September 15, 1947, such writ was returned “property not offered' for sale by reason of injunction granted in the United States District Court, Toledo, Ohio,” the federal court having issued a preliminary injunction on September 12, 1947.

On March 26, 1948, the preliminary injunction was made permanent by the federal court and Charles S. Fox and Herbert L. Myers as sheriff “and their respective heirs, executors, administrators and assigns and their respective agents, servants, employees and .attorneys and successors in office” were permanently •enjoined from enforcing or attempting to enforce upon execution or otherwise the payment of such judgment.

Relator avers further that the proceedings in the federal court at Toledo, Ohio, were without jurisdiction, that all the issues of fact and law were determined by the courts of the state of Ohio, that no appeal was taken to the Supreme Court of the United States and the judgment rendered in the state courts became final; .and that relator has no remedy, either plain or adequate, at law and is remitted to the extraordinary proceeding in mandamus.

Relator prays for a writ of mandamus commanding the respondent, as sheriff of Sandusky county, to proceed under his levy to sell the real estate levied on and that he be ordered to make proper return of his pro-needing.

The answer of respondent, after admitting his official character, contains a general denial and affirmative averments setting up the issuance of the temporary injunction and also the permanent injunction already referred to and prays that the relator’s petition 'be dismissed.

Under the provisions of subsection (s) of Section 75 ■of the Bankruptcy Act (Title 11, Section 203 [s], U. :S. Code) a debtor may withdraw his petition by filing an application for that purpose. This procedure was followed by David Ellis Jones. On May 29,1944, about four years after he filed his original petition in bankruptcy, he made application to the court setting forth that he had paid his debts and asked that his adjudication in bankruptcy be vacated and his amended petition under subsection (s) of Section 75 of the Bankruptcy Act be dismissed. Notice was given his creditors and upon hearing, the application was granted on June 17, 1944.

It is a rule of general application that upon the dismissal of a pending case, the jurisdiction of the court is ended. If jurisdiction is to be retained, it is necessary that a provision to that effect be made a part of the order of dismissal.

In the instant case it does not appear that an application for rehearing was made or an appeal taken or that the judgment of dismissal has ever been formally vacated. The granting of the motion to show cause and also the granting of the temporary injunction may have the effect of vacating the judgment of dismissal. However, the judgment in the state courts regularly entered and affirmed, following the judgment of dismissal, could not be collaterally attacked or invalidated by subsequent proceedings begun in the bankruptcy court even though such proceedings had the effect of vacating the judgment of dismissal.

The effect of dismissal and reinstatement of petition under Section 75 is considered in Sections 4063 and 4064 in Remington 'on Bankruptcy and also in the cases cited.

Jurisdiction does not depend on the soundness of the court’s decision. Where the court has jurisdiction of the parties and the subject matter, if error be committed in rendering judgment, no matter how erroneous its proceedings, such error is capable of being set right by an appeal to a reviewing court, but not by means of a collateral attack. 11 Ohio Jurisprudence, •668, Section 25.

However, a judgment absolutely void is subject to attack anywhere, either directly or collaterally, as it is .a mere nullity.

The following authorities are cited as illustrative of the doctrine here under consideration: Sheldon’s Lessee v. Newton, 3 Ohio St., 494; Moore v. Robison, 6 Ohio St., 302; Risman v. Krupar, 45 Ohio App., 29, 186 N. E., 830; Union Savings Bank & Tr. Co., Exr., v. Western Union Tel. Co., 79 Ohio St., 89, 86 N. E., 478, 128 Am. St. Rep., 675; 49 Corpus Juris Secundum, 792, Section 401.

When an issue of law or fact has been finally determined on the merits by a court having jurisdiction, such issue or issues may not again be tried in a subsequent action between the same parties or their privies.

These general rules in the sphere of civil procedure have been recognized and confirmed in numerous ■cases.

We call attention to the case of Union Joint Stock Land Bank of Detroit v. Ryerly, 310 U. S., 1, 84 L. Ed., 1041, 60 S. Ct., 773, which is cited and relied on by relator and which was the basis for the judgments in the state courts, where it was held that reinstatement •of bankruptcy proceedings under favor of the FrazierLemke Act “did.not invalidate a sheriff’s sale and •deed which were confirmed and authorized by a state •court acting .within its jurisdiction during the interval between the dismissal of the bankruptcy case and the motion to reinstate it.” We quote from page 8 of the ■opinion of the court as follows:

“Although the state court’s jurisdiction was superseded by that of the bankruptcy court, it again attached upon the dismissal of the bankruptcy case, and,, thenceforward, as respects the foreclosure suit, and the state court’s procedure, it was as if no bankruptcy-case had ever existed. With jurisdiction of the parties and the subject matter, the state court entered a-decree confirming the sale find authorizing a deed, the-sheriff executed his deed, which was duly recorded, and the petitioner went into possession as purchaser of the-mortgaged premises. Thereafter the respondent moved for reinstatement of the bankruptcy case and' his motion was granted. In the interim, no bankruptcy-cause was pending and the state court had jurisdiction-to proceed as it did.”

So far as we are informed, the law of that case has-never been overruled or modified.

We also call attention to the case of Wheat v. Texas Land & Mortgage Co., Ltd., 153 F. (2d), 926, where a debtor undertook to reopen the bankruptcy proceedings and obtain relief under the Frazier-Lemke Act-after he had unsuccessfully litigated in the state courts-issues raised in an action brought therein by him to set aside the judgment entered in a foreclosure proceeding- and also the sale of land thereunder, which proceeding-was carried on and concluded after the bankruptcy proceeding had been dismissed. In that case, the bankruptcy court refused to restrain the mortgagee from, proceeding with its foreclosure. We quote the syllabus of this case:

"1. Judgment — Under res judicata doctrine, a question within the compass of the tendered issues in a previous case is concluded by the judgment in such-case, even though such question is not expressly raised and decided therein.

“2. Judgment — A state court judgment in mortgagor’s trespass to try title action was res judicata and a bar to mortgagor’s attempt to obtain relief from mortgage foreclosure by reopening bankruptcy proceeding under the Frazier-Lempke Act, where every matter present in controversy was expressly raised and decided in the state court action or was within the compass of the tendered issues.” (Writ of certiorari denied, 328 U. S., 837.)

See, also, Bastian v. Erickson (U. S. C. C. A., 10), 114 F. (2d), 338; In re Snyder, 32 F. Supp., 903.

In the latter case where petition for a composition or extension under the Bankruptcy Act was dismissed, and subsequent to dismissal but prior to application for appeal and prior to granting of injunction against legal proceedings pending final outcome of question presented by appeal, an action in detinue was begun before a justice of the peace for the recovery of a certain farm equipment.' Judgment was rendered in favor of the plaintiff and possession of the farm equipment was awarded him. Subsequently, the order of dismissal was reversed by the Circuit Court of Appeals. It was held that the state court’s judgment could not later be set aside by the bankruptcy court following reversal of dismissal order and remanding of cause for further proceedings.

Under the pleadings and the evidence, it appears that the state court had jurisdiction of the parties and the subject of the action; that the issues that were subsequently presented in the bankruptcy court were challenged all along the way in the state courts; that even if the proceedings in the state courts were erroneous, they were not void, and the remedy was by timely application for review in the United States Supreme Court. No appeal having been taken, the judgment of the courts of Ohio has become final and is now res judicata as to all parties to the suit in the state court and as to all the issues raised and decided.

A writ of execution against the property of the judgment debtor having been duly issued and directed to' the respondent, pursuant to the provisions of Section. 11664, General Code, a mandatory duty was thereby imposed on him, as sheriff of Sandusky county, to execute the writ as ordered. It follows that a peremptory writ of mandamus should issue as prayed for.

Writ allowed.

Carpenter and Fess, JJ., concur.


author: Carpenter, J.

text:
    American Security Corp., Appellee, v. Martin, Appellee; Petras, Appellant.

      (No. 308
    Decided April 5, 1948.)

      Messrs. Parker & Fenton, for appellee American Security Corporation.

      Mr. David A. Webster, for appellant.
   Carpenter, J.

This action started as one in replevin by the plaintiff-mortgagee to secure possession of a motor vehicle. By amended petition filed without objection, the action was converted into an action to foreclose the mortgage.

An oral motion to dismiss this appeal on questions of law first claims the attention of the court. That motion was made during the argument herein. It was based upon the inaccurate designation of the date of the judgment in the notice of appeal.

The material facts on this phase are as follows:

Judgment for the defendant was entered November 19, 1947. On the 20th, a motion for a new trial was filed, which was overruled on the 21st. On December 3, defendant-appellant filed a notice of “his intention to appeal from the judgment rendered by the Court of Common Pleas on the 18 day of December, 1947.”

The only judgment from which an appeal could be taken was that entered November 19, 1947. Does this obvious mistake in the date of the judgment require the dismissal of the appeal ?

Appellant’s brief was filed in season and so were the answer and reply briefs. No claim is made by plaintiff-appellee, in its brief or in support of its motion to dismiss, that it was confused hy the date of judgment stated in the notice, or that it was in any way prejudiced by this manifest error in the dating.

Our courts have been liberal in permitting amendments of a timely notice of appeal, as is contemplated in Section 12223-5, General Code. Loos v. W. & L. E. Ry. Co., 134 Ohio St., 321, 16 N. E. (2d), 467; Capital Loan & Savings Co. v. Biery, 134 Ohio St., 333, 16 N. E. (2d), 450 (wherein no separate notice of appeal was filed, only a statement at the end of the counsel-approved entry overruling the motion for a new trial that “defendants hereby give notice of appeal”); Couk v. Ocean Accident & Guarantee Corp., 138 Ohio St., 110, 33 N. E. (2d), 9; Mosey v. Hiestand, Trustee, 138 Ohio St., 249, 34 N. E. (2d), 210 (where the dates of the judgment were as far from the correct dates as in this case, only the report does not show that they were after the filing of the notice); In re Wisner, 148 Ohio St., 31, 72 N. E. (2d), 751. In Bank of Elmore Co. v. Damschroder, 69 Ohio App., 15, 42 N. E. (2d), 781, this court followed the above cited decisions. It will do so herein, and the motion to dismiss will be overruled, and appellant’s oral motion for leave to amend his notice to correct the date of the judgment will be granted.

The facts are undisputed, which are material to the determination of the merit issue, i. e., whether the plaintiff-mortgagee or the defendant-garageman who did work and furnished material to make necessary repairs to the motor vehicle, a commercial truck, has the prior lien upon it.

On January 13, 1947, defendants Gordon A. Martin and Vera E. Martin, who resided in DeKalb county, Indiana, were the owners of the truck. On that day, they gave the plaintiff at Ft. Wayne, Allen county, Indiana, a note for $578.25 and a chattel mortgage on the truck and their household goods to secure it. The same day, plaintiff filed the mortgage in the office of the recorder of Allen county, Indiana.

The truck, having been damaged in a collision, was, on January 2, 1947, left by Martin for repair at the garage of defendant-appellant, Nicholas Petras, at Edgerton, Ohio. During the month of January necessary repairs, including a new motor, were made. The bill for this was over $500. About February 1, 1947, Petras voluntarily permitted Martin to take the truck, and he used it in his business for about four weeks. The latter part' of February, Martin drove it into Petras’ garage at Montpelier, Ohio, and, as the repair bill had not been paid, Petras took possession of the truck and kept it until April 21, 1947, when it was taken from him under a writ of replevin herein. The plaintiff claimed the truck as a special owner, under plaintiff’s mortgage. When Petras took the truck from Martin at Montpelier, he was told about the plaintiff’s mortgage.

On June 2, 1947, plaintiff filed its amended petition, alleging in separate causes of action its note and mortgage and prayed for judgment and foreclosure. To this Petras, on July 8, 1947, filed an answer in which he denied all the allegations of the petition except the one that he claimed some right or lien on the truck. He alleged that the mortgagors, the Martins, resided in DeKalb county, Indiana; that the chattel mortgage, not having been filed in that county as required by the statutes of that state, was invalid; and that his artisan’s lien was prior to it, and he prayed for its foreclosure. In effect, this was a cross-petition.

On August 18, 1947, plaintiff filed its mortgage with the recorder of DeKalb county, and by amendment to its amended petition, set up that fact. Petras filed an amended answer which was, so far as here material, the same as his answer. Although his answer and amended answer were in part cross-petitions to foreclose his alleged lien, no process was had thereunder against the truck. This situation well illustrates a point lawyers too often overlook — the tactical advantage of strengthening one’s own cause while time and opportunity permit, rather than being too much concerned about the weaknesses of the opponent’s cause.

While no reply or answer was filed to this so-called amended answer, the cause was tried as though its allegations were denied.

By agreement of the parties and under the supervision of the court, the truck was sold by the sheriff and the proceeds were placed in the hands of the clerk of courts to await the final determination herein.

In Metropolitan Securities Co. v. Orlow, 107 Ohio St., 583, 140 N. E., 306, 32 A. L. R., 992, paragraph one of the syllabus, a common-law artisan’s lien on a chattel is recognized as valid in Ohio “while he retains such chattel property in his possession.” Possession voluntarily surrendered extinguishes that type of lien. 33 American Jurisprudence, 434, Section 29; McFerran v. Louisville Title Co.’s Recr., 254 Ky., 362, 71 S. W. (2d), 655; Potter v. Foster, 16 Tenn. App., 336, 64 S. W. (2d), 520.

In Seebaum v. Handy, 46 Ohio St., 560, 22 N. E., 869, a liveryman’s lien on a horse for feed, care and shoeing, under the statute, is likened to the common-law artisan’s lien. At page 566 of the opinion it was said of such liens:

“The nature and incidents of a common-law lien of this kind are well settled. It is a right to retain property until certain claims against it are satisfied; and possession is not only essential to its creation, but also to its continuance. Where the party voluntarily parts with the possession of the property upon which the lien has attached, he is divested of his lien.”

Among other decisions in support of this principle, there was cited and quoted McFarland v. Wheeler (N. Y.), 26 Wend., 467, wherein the owner of a sawmill who had milled some lumber for defendants there sought to replevin it after he had permitted them to move it from his millyard and to pile it on the bank of a canal a half mile away. It was expressly agreed by them that his lien upon it for the mill charge should remain as if the lumber were still piled in the millyard. Notwithstanding this agreement, the lien was lost. It was said in that opinion on page 473:

“The very definition of the word, lien, as ‘the right to retain,’ indicates that it must cease when the possession is relinquished. This principle, so clearly founded in reason and so congruous to public utility and the convenience of trade, is supported by the uniform testimony of the decisions. Thus said Lord Kenyon, ‘the right of lien has never been carried farther than while the goods remained in possession of the parties claiming them. ’ 1 East., 14. This remark was cited with approbation by Lord Ellenborough in Mc-Combie v. Davies, 7 East., 7, and the whole current of decisions in equity and common law in England and in the United States, is the same way.”

When Petras voluntarily parted with the possession of the truck to Martin he lost his lien and became a genera] creditor. Repossession of the property could not re-establish that lien. Pan-American Life Ins. Co. v. Reynaud, 4 La. App., 290; People v. Photo, 45 Cal. App. (2d), 345, 114 P. (2d), 71. He did nothing to recover it, as he might have done by attachment, execution, or, perhaps, by mortgage from Martin. Martins, being nonresidents of the state, an attachment proceeding would have been relatively simple.

Under Section 12102-31, General Code, the courts of this state must take judicial notice of the “statutes of every state,” but the General Assembly did not adopt for Ohio the further provision of the Uniform Judicial Notice of Foreign Law Act that judicial notice would be taken of the nonstatutory or common law of another state. In the absence of record proof of what that law is, the presumption is that it is the same as the Ohio common law. Heater v. Mittendorf, Exrx., 72 Ohio App., 4, 50 N. E. (2d), 559.

The state of Indiana does not have a statute requir- • ing the registration of mortgages on certificates of title of motor vehicles as does Ohio, but such liens are governed by the general statute applying to all chattel mortgages.

Under Section 51-509, Burns, Statutes of Indiana, it is provided:

“Any chattel mortgage executed under and pursuant to this act (the chattel mortgage law), or any instrument intended to operate as such, shall be filed in the county where the mortgagor, if a resident of the state, resides at the time of the execution thereof; * *

Martins were residents of DeKalb county when they executed that mortgage, hence its filing in Allen county gave it no effect as a lien as to third- persons and it was not until August 18, 1947, when it was filed in DeKalb county, that it operated as such lien.

It is not necessary to determine herein whether the replevin or the foreclosure proceedings gave plaintiff an effective lien under its mortgage. The filing of it in DeKalb county had that effect.

Petras, by his voluntary surrender of possession of the truck to Martin, lost his artisan’s lien, and, he having done nothing that would give him a lien before August 18, 1947, the trial court had no alternative but to conclude, as it did, that plaintiff was entitled to the proceeds of the sale of the truck. The judgment will be affirmed.

Judgment affirmed.

Conn and Fess, JJ., concur.


author: Stevens, J.

text:
    The State, ex rel. Merrill, Appellee, v. Greenbaum et al., Trustees, Appellants.
    (No. 3908
    Decided March 24, 1948.)
    ■ Messrs. Bailey & Bailey, for appellee.

      Mr. Roy E. Browne, director of law, and Mr. Alexander 8.- Greenbaum, for appellants.
   Stevens, J.

Relator was a member of the police department of the city of Akron continuously from July 20, 1926, to November 2, 1946, on which latter date he tendered his written resignation, which was accepted. That letter of resignation did not specify mental or physical disability as the reason for the resignation.

On November 2,1946, and again on November 4, 1946, Merrill made written application to the Trustees of the Police Belief and Pension Fund of the City of Akron for a pension.

On February 27, 1947, said trustees denied Merrill .a pension.

On April 15, 1947, Merrill filed his action in mandamus to compel said board to pay him a pension.

On October 21, 1947, the Court of Common Pleas, ■after hearing, ordered the issuance of a writ of mandamus, requiring the defendants to take the steps necessary to pay Merrill a pension of $60 a month from February 27, 1947.

From that judgment, this appeal on questions of law has been taken by defendants.

The Akron police relief fund was set up under the provisions of Section 4616 et seq., General Code.

Section 4628, General Code, as in force at the time •of the matters here under consideration, provided:

“Such trustees shall make all rules and regulations for distribution of the fund, including the qualifications of those to whom any portion of the fund shall be paid, and the amount thereof, with power also to .give credit for prior continuous actual service in the fire department or in any other department of the city rendering service in fire prevention, but, no rules or regulations shall be in force until approved by a majority of the board of trustees.”

In pursuance of the statutory authority therein granted, the trustees of said fund adopted Bules 16 and 16-A.

Those rules provide:

“16. Any legally, duly appointed and qualified police •officer who has performed duties as a police officer in the police department of the city of Akron, Ohio, for ■a period of twenty (20) years or longer, may voluntarily retire from said service as such police officer, and may apply to the trustees of the police relief fund of the city of Akron, Ohio, for pension.

“If it be found by the board upon proper proof submitted to said board of trustees of the police relief fund and to the satisfaction of the said board, of the-truth thereof, that said police officer has served a. period of twenty (20) years or longer in said department as police officer, said board of trustees of thepoliee relief fund of the city of Akron, Ohio, may retire him on pension and place him on the pension rolls and participate in said fund, and order paid to him out of the funds of said board of trustees the sum of three-do liars ($3) per month for each year he had served continuously before his retirement.

“16-A. Be it provided, that any legally, duly appointed and qualified police officer who has performed' duties as a police officer in the police department of the-city of Akron, Ohio, for a period of twenty-five (25) years or longer, may voluntarily retire from said service as such police officer, and may apply to the trustees-of the police relief fund of the city of Akron, Ohio, for pension.

“If it be found by the board upon proper proof submitted to said board of trustees of the police relief fund and to the satisfaction of the said board, of the-truth thereof, that said police officer has served a period of twenty-five (25) years or longer in said department as police officer, said board of trustees of the-police relief fund of the city of Akron, Ohio, shall retire bim on pension and place him on the pension rolls- and participate in said funds and order paid to him-out of the funds of said board of trustees the sum according to rank as hereinafter provided !* * (Italics-ours.)

Relator’s application for pension was made under Rule 16.

The trial court construed Rule 16 to be a mandatory requirement that, after 20 years or longer of police service, relator was of right entitled to a pension, predicating that conclusion in part upon the case of State, ex rel. Dieckroegger, v. Conners, 122 Ohio St., 359, 171 N. E., 586.

With that conclusion this court does not agree.

In our judgment, Rule 16 vests in the trustees of the police relief fund discretion to grant or deny a pension to one who has served 20 years or longer upon the police force; the discretion here spoken of means a reasonable discretion, and the exercise thereof a reasonable exercise — not a captious, arbitrary or unreasonable one.

The wording of the rule to us seems clear and unambiguous. Hence the rule does not admit of judicial interpretation; it requires only application according to its plain meaning.

It is generally true that the exercise of discretion by a board will not be controlled by mandamus in the absence of a clear showing of fraud or abuse of discretion, and we do not find either of those elements here present.

We do not consider the Dieckroegger case, supra, to be controlling in this case. There, the rule under consideration was ambiguous, susceptible of two or more interpretations, and hence subject to feonstruction. Such is not here the case.

The use of the words “may” and “shall” in the respective rules under consideration “would seem to indicate that” the board in their use “intended to discriminate between that which was permissive or discretionary and that which was mandatory in the carrying out of its intention.” State, ex rel. American Legion, v. Klinger et al., Commrs., 114 Ohio St., 212, 151 N. E., 47.

The Supreme Court of Ohio has said in State, ex rel. Smith, v. Barnell, Dir., 109 Ohio St., 246, 256, 142 N. E., 611, quoting from 36 Cyc., 1160:

<<<#** the word “may” should be construed to be-mandatory whenever the public or individuals have-a claim de jure that the power conferred should be exercised, or whenever something is directed to be done-for the sake of justice or the public good; but never for the purpose of creating a right.’ ”

43 American Jurisprudence, Public Officers, Section 259; 50 American Jurisprudence, Statutes, Section 24.

As we view Rule 16, it does not create in relator a claim de jure that he be granted a pension; and unless “may” be construed to mean “shall,” there is no-requirement that the board allow relator a pension. If “may” be construed to mean “shall,” such construction results in the creation of a right in relator to be-paid a pension, contrary to the last sentence, supra,. of the Supreme Court’s statement of the law.

Application of these principles to the rules under-consideration, requires the conclusion that Rule 16 is-permissive or discretionary, while Rule 16-A is mandatory.

It was incumbent upon this relator to make a clear-showing of right to the issuance of the extraordinary writ of mandamus.

That, in our opinion, he has not done.

The judgment is therefore reversed.

There being no dispute in the facts of this case,, this court will enter the judgment which the trial court, should have entered.

The issuance of a writ of mandamus is denied.

Judgment reversed.

Doyle, P. J., and Httnsicker, J., concur.


author: Hurd, P. J.

text:
    Johnson, Appellee; Wood Sebring Corp., Appellant, v. Graham Lighter Corp., Appellee.
    (No. 20743
    Decided March 8, 1948.)

      Mr. Henry M. Goldwasser, for appellee Lawrence J. Johnson.

      Messrs. Beach & Warner, for appellant.
    No appearance for appellee Graham Lighter Corporation.
   Hurd, P. J.

This is an appeal on questions of law from a judgment of the Municipal Court of Cleveland, whereby, after the sale of property by the bailiff on a writ of execution in one case, the court upon motion made after term set aside the writ in favor of another judgment creditor in another case, whose writ had previously been returned “nulla bona.”

The salient facts as shown by the record are as follows:

On October 22, 1946, plaintiff, an appellee herein, Lawrence J. Johnson, obtained a judgment in case No. A-83348 in the Municipal Court against the defendant, an appellee herein, Graham Lighter Corporation, in the amount of $2,261.25 and costs and caused a writ of execution, No. 541091, to be issued therein, - the same being delivered to the bailiff on October 24, 1946. The plaintiff appellee did not make a deposit for costs and did not give the bailiff any instructions relative to making the levy. On November 26, 1946, the bailiff returned the writ with an endorsement thereon as follows:

“No goods or chattels, lands or tenements of the named Graham Lighter Corporation could be found whereon to levy and for reason thereof is returned by me. No money made. Not satisfied.”

On December 2, 1946, plaintiff, appellant herein, Wood Sebring Corporation, obtained a judgment in case No. A-83870 against the defendant, Graham Lighter Corporation, for $300 and costs and caused a writ of execution, No. 542200, to be issued thereon which was delivered to the bailiff on December 2, 1946. Appellant made a deposit of $10 with the clerk as surety for costs of the levy by the bailiff and gave written instructions to the bailiff as to which personal property to levy upon and where it could be found. On December 5, 1946, the bailiff pursuant to writ No. 542200 levied upon the goods and chattels of the judgment debtor and advertised the same for sale on January 6, 1947.

The record in this case indicates that plaintiff appellee had full knowledge of the impending sale upon the levy at the instance of appellant.

Thereafter on December 13, 1946, plaintiff appellee caused an alias writ of execution to be issued, No. 542445, and again did not make deposit to secure court costs with the clerk and gave no written instructions to the bailiff to levy upon the same goods which were being advertised for sale under execution No. 542200, incident to the levy made by appellant.

On January 6, 1947, the bailiff sold the goods levied upon under the appellant’s writ, pursuant to advertisement, and appellant bought the property for the sum of $295.00, paid the costs of the bailiff and set off'the balance against its judgment. Thereafter the appellant as purchaser removed the goods and substantially liquidated the same.

On or about January 15, 1947, at the next term of ■court, plaintiff appellee filed a motion for an order on the bailiff to vacate or amend his return of execution No. 541091 and to reinstate such execution granting priority over appellant’s execution, levy and sale. On January 23, 1947, the court granted such application without notice to the appellant. Thereafter, upon application of the appellant, the court granted a rehearing. After rehearing on March 25, 1947, the court made final disposition by vacating the entry of ■execution and sale of appellant under execution 542200 in case No. A-83870 and granted plaintiff appellee’s motion by adjudging priority to the writ of' execution •of such plaintiff, being No. 541091 in case No. A-83348, and awarded the full proceeds of the sale of the personal property to plaintiff appellee.

The assignments u£ error are:

“1. That the judgment and decree of the Municipal ■Court of Cleveland entered in thé'abovo aa-tioo* nn or .about March 25, 1947, wherein it determined that the writ of execution No. 541091 in the above entitled cause took precedence over writ of execution No. 542200 in case No. A-83870 in said court, wherein this appellant was plaintiff and the Graham Lighter Corporation was defendant, is contrary to law.

‘ ‘ 2. That said judgment and decree of the Municipal Court of Cleveland was wholly unsupported by the-evidence.

“3. That the Municipal Court of Cleveland should have determined that said execution No. 542200 prevailed over or took preference over said execution No.. 541091.”

It should be noted at the outset that this is not an action against the bailiff for amercement. We are dealing solely with the question of priorities, between rival judgment creditors, on executions in two different causes of action against the same judgment debtor.

It should be noted also that there is no charge of fraud made against the bailiff, neither is there any evidence of fraud or collusion in the record.

The principal question to be decided here is whether the writ of appellant, in the execution of which the personal property of the judgment debtor was seized and sold, is entitled to priority over the writ which had been previously returned “nulla bona.” In our opinion the answer to this question must be in the affirmative.

From the statement of the facts, it will be observed that the property of the judgment debtor was seized by the bailiff upon the writ of execution of the appellant and by the bailiff reduced to his possession, advertised and sold at public sale.

The appellant was tb° successful bidder at such sale* bouffhf Jbn property, paid the balance of the costs and applied the balance remaining to its judgment. Thereupon the goods were removed and substantially liquidated.

The appellant relies upon the case of Root v. Railroad Co., 45 Ohio St., 222, 12 N. E., 812, the syllabus of which is as follows:

“L In order to constitute the levy of an attachment on personal property, it must be taken into the custody of the officer levying the writ, so as to be held subject to the order of the court from which the writ issued. After the seizure has been effected, the property may be placed by the officer in the possession of a person acting for him as keeper, but cannot be left in the possession of the debtor, and subject to his control, unless upon the execution of a forthcoming undertaking as provided in Section 5529 of the Revised Statutes.

“2. In the absence of a levy so made, the court acquires no jurisdiction over the property sought to be attached, and it may be taken in execution or attachment by any other creditor as if no previous writ had been issued.

“3. Where, as a matter of fact, personal property is for the first time seized by an officer and taken, into his custody under a writ of execution, the return of the officer that he had levied the same upon certain property, subject to a former attachment, does not preclude the execution creditor from showing that, from an omission of the officer to take the property into his custody, no such attachment had in fact been made.”

That case has been followed in numerous decisions, has never been modified or disapproved by our Supreme Court and is the law of Ohio today. It is, we believe, authority for the proposition that in either an attachment or execution, priority must be accorded the writ in the execution of which the property is first seized by the officer.

At. the time of the execution of appellant’s writ, there was no live writ of execution in existence against the judgment debtor, the first writ having been previously returned “nulla bona.” Therefore, in pursuance of the holding in Root v. Railroad Co., priority must be accorded the appellant’s writ of execution.

Under such circumstances, the remedy of the judgment creditor, if any there be; is by way of amercement in proceedings against the bailiff.

We conclude that the seizure and sale of the personal property by the bailiff on appellant’s writ, as between the judgment creditors, entitled the appellant to the proceeds of sale upon execution, and that it was prejudicial error on the part of the trial court, after seizure, sale and disposal of the property, to grant the motion of plaintiff appellee and thereby grant him preference and award him the proceeds of the sale when his writ had previously been returned “nulla bona.”

Although we think that our conclusion on this point is decisive of the issues herein, we deem it advisable and proper to advert to certain other issues which have been urged in oral argument and by way of briefs of counsel and discussed in the opinion of the trial court.

• It is urged by the appellant that plaintiff appellee abandoned all rights or claims under the writ of execution No. 541091 which has been returned “nulla bona,” this for the reason that plaintiff appellee issued ah alias writ of execution, No. 542445 on December 13, 1946, subsequent to appellant’s writ No. 542200, under which the property was sold. In our opinion this action constituted abandonment by plaintiff appellee of his first writ and a reliance upon the alias writ.

It is well settled that abandonment of a writ of execution operates as an absolute discharge of the property and as a destruction of the rights acquired thereunder.

In oral argument and briefs of counsel, and in the opinion of the trial court, much attention is given to the question of what is meant by the words, “within sixty days from its date,” as set forth in Section 11712, General Code, which reads as follows:

“The officer to whom an execution is directed shall return such writ to the court to which it is returnable within sixty days from its date.”

The plaintiff appellee contends that these words: mean “at'the end of sixty days,” .and that the bailiff erred in making his return “nulla bona” in thirty-two days.

Numerous authorities have been cited by counsel and we have examined all those and additional authorities. In examining authorities cited from other jurisdictions, we find many different phases of the question discussed under cases involving different sets of facts and circumstances, different statutes and rules of court. In our own jurisdiction, the cases of Doll v. Barr, 58 Ohio St., 113, 50 N. E., 434, and Ryan, Sheriff, v. Root & McBride Bros., 56 Ohio St., 302, 47 N. E., 51, relied upon by plaintiff appellee, and cited by the trial court, were decided under Section 11665, General Code, before it was amended. The statute before it was amended read as follows:

“When two or more writs of execution against the same debtor are sued out during the term in which judgment was rendered, or within ten days thereafter, and when two or more writs of execution against the same debtor are delivered to the officer on the same day, no preference shall be given to either of such writs. If a sufficient sum of money be not made to satisfy all executions, the amount made shall be distributed to the several creditors in proportion to the amount of their respective demands. In all other cases the writ of execution first delivered to the officer shall be first satisfied. The officer shall indorse on every writ of execution the time when he received it; but nothing herein contained shall affect any preferable lien which a judgment on which execution issued has on the lands of the debtor.” (Emphasis added.)

Section 11665, General Code, as amended and effective July 24,1939, reads as follows:

“When two or more writs of execution against the same debtor are delivered to the officer on the same day, no preference shall be given to either of such writs. If a sufficient sum of money be not made to satisfy all such executions, the amount made shall be distributed to the several creditors in proportion to the amounts of their respective demands. In all other cases the writ of execution first delivered to the officer .shall be the first satisfied. The officer shall indorse on every writ of execution the time when he received it; but nothing herein contained shall affect any preferable lien which a judgment on which execution issued has on the lands of the debtor.” (Emphasis added.)

At the time of the decisions in the cases of Doll v. Barr and Ryan, Sheriff, v. Root & McBride Bros., supra, old Section 11665, General Code, which was applicable, forbade any preference among executions sued out in any term in which the judgments were rendered, and required that the money made, if insufficient to satisfy all the writs, should be distributed to the creditors in proportion to the amounts of the respective demands and the Code did not limit creditors, whose writs were levied on the debtor’s property or in the hands of the officer at. the time of the sale, but embraced all whose interests were sued out within the specified time. That was completely in accord with the statute as it then existed.

The case of Ryan, Sheriff, v. Root & McBride Bros., supra, decided April 27, 1897, was another action for amercement. In that case the court held:

“The goods and chattels of M., when seized in execution by the sheriff, were brought within the operation of Section 5382, Revised Statutes, which directs that when two or more writs of execution against the same debtor are sued out during the term at which judgment was rendered, no preference shall be given to either of such writs; but if a sufficient sum of money be not made to satisfy all executions, the amount made shall be distributed to the several creditors in proportion to the amount of their respective demands, and no subsequent assignment by the debtor could have the effect to prevent the application of the proceeds of sale as directed by the statute.” (Emphasis added.)

' It will be observed that under the Revised Statutes, previously existing writs of execution sued out during term were on an equal footing, and that no preference could be allowed between judgment creditors in respect of writs of execution levied during the term, whereas under the statute here in effect (except in the case of two or more writs delivered to the officer on the same day) the writ of execution first delivered to the officer shall be first satisfied.

So that we conclude that neither Doll v. Barr, or Ryan, Sheriff, v. Root & McBride Bros., supra, has application here under Section 11665, General Code, as amended July ¿4, 1939.

We will consider further the question'of the construction of Section 11712, General Code, and particularly the words, “returnable within sixty days from its date.” According to Webster’s New International Dictionary, the word, “within,” in relation to time, means “no longer than,’’-“before the end or since the beginning of,” as “within the hour” or “in the limits or compass of,” “not beyond,” “not later than.”

In 45 Words & Phrases, 378 et seq., the word, “within,” is defined as being “before,” “during” and “hot later than,” “for the space of,” “not beyond,” “not less than.” Accepting these definitions of the word, “within,” Section 11712 is clear .and unambiguous, and, therefore, it is unnecessary to resort to accepted methods of judicial interpretation and construction as in cases where the statutes are clearly ambiguous.

In the case of Renaud v. O’Brien, 35 N. Y., 99, the court held:

“The sixty days allowed by statute to the sheriff to execute and return the process of execution is for the benefit of the sheriff, to prevent compulsory proceedings, etc., against him until he has had a reasonable time to execute such process.

“In a proper case, a creditor’s bill can be maintained, where the action is commenced after the return, in good faith, of nulla bona, though it be within the sixty days allowed by law as the possible life of an execution.”

In the case of Guerney v. Moore, 131 Mo., 650, 32 S. W., 1132 (decided 1895), the court held:

“A return against such corporation defendant before the expiration of the sixty days ’ period is not premature where the defendant is insolvent and has ceased to do business.”

In the case of Chesebro v. Barme, 163 Mass., 79, at page 80, 39 N. E., 1033, a ease cited by plaintiff appellee, we find the following:

“By our statute, Pub. Sts. c. 171, section 22, an execution must be made returnable in sixty days from its date. This is not equivalent to saying that an execution can be returned to court only upon its statute return day. The purpose of the enactment is to make a reasonable limit of time beyond which the process shall not authorize the commencement of proceedings for the collection of the judgment. But service begun before the return day may be completed thereafter. Pub. Sts. c. 171, section 55. The officer’s return of service upon the execution, and the return of the execution into court, are different matters. He may indorse upon the execution any true statement of his acts under it without waiting for the return day, or after that day; and there is no prohibition against returning the execution into court before or after the return day.”

While there are some decisions contra, we find that on logic and reason and the weight of authority, in the absence of instructions to the contrary, under existing applicable statutes, the officer making the levy is not required to hold the writ for the full term of sixty days but that this period of time is allowed to him as a matter of protection to prevent compulsory proceedings against him until he has had the full amount of time allowed by. law to execute the process.

Before concluding, we feel we should advert to one other proposition which has to do with the observance of Rule 25 of the Municipal Court which reads as, follows:

‘ ‘ In all cases in which it shall be necessary to store or to provide a custodian for property seized under any writ or order issued by this court, the bailiff shall require a deposit sufficient to secure the probable storage or custodian charges in each ease.”.

The uncontradicted evidence in the record shows that this rule of court has been followed by the clerk of the Municipal Court and that deposits in advance are required for the securing of the costs incurred by the bailiff in making a levy.

The chief deputy bailiff of the Municipal Court, under cross-examination, testified in part as follows:

“Q. I hand you Wood-Sebring exhibit B and ask you to tell us what that is. A. Those are instructions to the bailiff, issued by George E. Beach, attorney, to levy execution on the goods and chattels of defendant at its manufacturing plant at 5713 Euclid Avenue. .

“Q. I observe some stamp upon that from the clerk’s office. Are you familiar with what that is? A. Yes, sir, I am.

“Q. What is it? A. That is a stamp that the clerk uses on all of his writs where a deposit has been made. This stamp denotes that a $10 deposit was made on December 3, 1946, with the clerk to secure the costs incurred in this levy.

“Q. What do you know in regard to the custom or rule of the clerk’s office in that respect as to whether deposits are required? A. Deposits are required.

“Q. For what? A. For the securing of the costs incurred by the bailiff iii making the levy.

‘ ‘ Q. Did you have any such instructions in the J ohnson case? A. I did not.”

Municipal Court rule No. 25, which was adopted and in full force and effect under the provisions of Sections 1579-40 and 1579-47, General Code, in respect of fees and costs of the Municipal Court, is in our opinion binding upon court and litigants alike. Equal justice requires that such a rule of court should have equal application to all litigants. In a situation such as is here presented, where the record shows that the personal property of an insolvent debtor is subject to the claims of judgment creditors, a creditor who complies with the rule of court is entitled to priority as against one who fails to comply.

For all the reasons stated, we conclude that the assignments of error of appellant herein are well grounded and that the judgment of the Municipal Court should be reversed and final judgment should be entered for appellant, Wood-Sebring Corporation.

Judgment reversed.

Morgan and Skeel, JJ., concur.

       In the same case (Root v. Railroad Co., supra) at page 231, Minshall, J., in the opinion stated:
      “Where the property on which the sheriff levies a particular writ, is in his possession under a former one, a second seizure need not, and in fact cannot, be made; the seizure as to such subsequent writ is in law effected by simply indorsing a levy upon it, and such levy will take effect from the receipt of the writ by the sheriff. Where the property is in his custody under the former writ, such custody supports the return of a levy made under the second writ; but if it is not, and no seizure is in fact made, under the second' writ, the latter one is no more effectual than the former one. But where, as in this case, the property is for the first time seized under the second writ (5th finding of fact) it stands upon its own footing, and is necessarily prior in right to all liens depending upon a seizure of the property * *

       See 21 American Jurisprudence, 57, Section 105, which, in part, is as follows:
      “The abandonment of a levy of execution operates as an absolute discharge of the property and as a destruction of rights acquired under the levy, even though the levy is improperly abandoned by the execution officer who thereby becomes liable to the execution creditor, so that the property may be seized under a writ of any other judgment creditor and the judgment debtor may sell the property and pass a title free of the lien of the execution. The abandonment also operates to give priority to liens which, previous to the abandonment of the execution, had been subject to the lien thereof.”


text:
    Lewis, Appellee, v. Arcade Garage, Inc., Appellant. Lewis, Appellant, v. Arcade Garage, Inc., Appellee.
    (Nos. 3915 and 3918
    Decided May 21, 1948.)

      Mr. Raymond J. McGowan and Mr. Paul C. Laybourne, for appellee and appellant, Fred Lewis.

      Messrs. Wise, Roetzel, Maoson, Kelly & Andress, for •appellant and appellee, Arcade Garage, Inc.
   Stevens, J.

Plaintiff filed his action in the Court •of Common Pleas of Summit county, Ohio, seeking to recover damages for personal injuries allegedly sustained by bim when he fell into a grease pit maintained by defendant in its garage.

The petition alleged that defendant was the operator of a garage, wherein were located three grease pits 18 feet long, 6 feet wide and 5 feet deep; that on the •evening of April 9, 1944, plaintiff left his auto with defendant to be parked during the night; that on the morning of April 10, 1944, plaintiff went to said garage and asked one of defendant’s authorized employees for.his automobile; that plaintiff was told by said employee that his automobile was parked on the first floor, along the northerly side of said garage, and was directed to get his own automobile; that in pursuance of the direction of said employee, plaintiff proceeded to walk, toward the place where said automobile was located, when, suddenly and without warning, he walked into one of said grease pits and was precipitated to the bottom thereof; that plaintiff extricated himself from said pit, and, in attempting to walk away from the same, walked into another of said grease pits, and was violently precipitated to the bottom of same and was seriously injured.

Defendant was charged with negligence as follows: “In failing and neglecting to provide a rail or barrier at the entrance of said grease pits; in failing to warn or in any manner apprise plaintiff of the existence of said grease pits * * * or the absence of any rail or barrier at the entrance to said grease pits; in failing to maintain adequate light and illumination * * *; in causing, permitting and allowing the first story and floor of said parking garage to be and remain in said dangerous and unsafe condition to plaintiff while lawfully walking therein.”

Defendant, for answer, admitted its operation of the garage, the existence and location of the grease pits, and that plaintiff on the morning of April 10, 1944, was found in one of said pits in an injured condition; it denied generally the allegations of the petition not admitted, and pleaded contributory negligence of plaintiff as a separate defense.

The cause proceeded to trial upon these pleadings, and, upon submission to the jury, a verdict for plaintiff in the amount of $25,000 was returned.

Motions for judgment notwithstanding the verdict and for a new trial were filed, and overruled by the trial court; on December 30, 1947, the court entered judgment for the plaintiff for $500, without the consent of plaintiff.

The reasons for the entry of a $500 judgment after the return by the jury of a single verdict for plaintiff for $25,000 are set forth in the “finding” of the trial court, as follows:

“Minds might reasonably differ on the question of his invitation to go on the premises and get his car. Minds might reasonably differ as to whether or not in going out there in the first instance unfamiliar with the circumstances whether he used ordinary care but minds cannot reasonably differ that after falling into the pit and clambering out that á reasonable person would take some precaution and would remember that precaution because he says that he was jolted up and remembers that that was his reason for going over and sitting down on another automobile. He remembers that very distinctly and he would remember very distinctly if he had reached out and felt a hole with his foot. So obviously he did not reach out with his foot, nor did he strike a match to see a hole, nor did he call the attendant, nor did he return over the safe route by which he had arrived at this spot, nor did he do anything whatsoever even though he was confronted with the knowledge of a very concrete form that the place was dangerous.

• • • * *

“The court having found that the first fall was a happening concerning which minds might reasonably differ as to the existence of contributory negligence, must leave as much of the verdict stand as would compensate for the injuries where the jury has found upon issues concerning which minds cannot reasonably differ that the defendant was guilty of negligence and that there was no preponderance that the plaintiff was guilty of contributory negligence and as to these injuries the court assesses them to be in the sum of five hundred dollars ($500).

“As to the other injuries concerning which the jury included likewise and concerning which the court has said that minds could not reasonably differ but what those injuries were directly and proximately caused by the plaintiff’s own negligence that the jury having included those injuries they did so because they misunderstood the charge or because they found manifestly against the weight of the evidence as to that conduct about which minds cannot reasonably differ.

“Such conduct of taking no precaution and exercising no care was contributory negligence that directly and proximately produced the greater part of and the greater severity of the injuries which the jury must have included erroneously in the sum total in their idea of what the compensable damages of the plaintiff were.”

After the entry of the judgment for plaintiff for $500, plaintiff duly appealed on questions of law in case No. 3918, and defendant duly appealed on questions of law in case No. 3915. Both appeals were heard and submitted together in this court.

In case No. 3915, defendant (appellant) assigns as error, that the court erred:

1. In overruling the motions of defendant for a directed verdict at the conclusion' of plaintiff’s evidence and at the conclusion of all the evidence.

2. In overruling the motion of defendant for judgment notwithstanding the verdict.

3. In overruling the motion of defendant for a new trial.

In case No. 3918, plaintiff (appellant) assigns this error:

The trial court had no power to completely nullify the constitutional rights of a person to a jury trial by reducing a substantial verdict to a relatively small amount, and then, without the consent of the plaintiff, ■enter judgment on the same as so modified.

This appellant then asserts that the verdict is 'amply supported by substantial evidence of negligence ■on the part of the defendant, and requests that this ■court enter judgment on the verdict, as it is alleged the trial court should have done.

The evidence herein is in dispute as to whether plaintiff was told by defendant’s employee to get his ■own car on the morning in question, so, as to the relationship existing between plaintiff and defendant, whether invitee, licensee, or trespasser, that was a question properly submissible to the jury, as was done ■by the trial court.

Whether or not the defendant was negligent in any of the respects charged in the petition was also a question of fact properly submissible to the jury, under •all the facts and circumstances shown by this evidence.

Upon the question of contributory negligence' of plaintiff on the occasion of his first fall into the grease pits, we are of the opinion that the evidence was such as precluded resolution of that question as a matter of law, and required submission thereof to the jury, as was done.

The question of plaintiff’s contributory negligence when he fell into the grease pits a second time is somewhat more difficult. The evidence shows that, as a result of plaintiff’s first fall, while he was not seriously hurt, he was shaken up and “groggy.” He would then be required to exercise ordinary care for his own safety, taking into consideration all the surrounding •circumstances. He had just been precipitated into the grease pit, had looked around him and discovered the way to get out of the pit. In such looking around he must, of necessity, have observed the character and extent of the pits, and that they were nnlighted. Yet,, despite this knowledge, he so conducted himself as to-again fall into said pits, and this time with serious-results to himself.

Whether plaintiff exercised that degree of care for his own safety which a reasonably prudent individual under the same or similar circumstances would have-exercised, before and on the occasion of his second fall into the grease pit, was, under all of the facts and circumstances here present, a question for the jury.

Such conclusions require the decision that the trial court did not prejudicially err in refusing to sustain defendant’s motions for directed verdicts, or for judgment notwithstanding the verdict.

We come now to the defendant-appellant’s claim regarding the overruling of its motion for a new trial.

At the time of passing upon that motion, the court had before it a verdict of the jury 'as follows:

“* * * We, the jury, being duly impaneled and sworn,, find the issues in this case in favor of the plaintiff, and' assess the amount due to the- plaintiff from the defendant, the said Arcade Garage, at the sum of $25,000.

“And we do so render our verdict upon the concurrence of nine members of our said jury, that being three-fourths or more of our number. * * *”

There is no way in which the trial court could know what, if any, compensation was allowed plaintiff for-the injuries sustained by him in the first fall. Likewise, it was impossible for the court to determine what damages were awarded for the injuries proximately caused by the second fall. There were no interrogatories propounded to the jury which would elicit information upon those questions, and there was but the single verdict, above set forth.

If the trial court, after the return of the jury’s verdict, was of the opinion that it should have resolved the question of plaintiff’s contributory negligence as a matter of law, in so far as the second fall was concerned, or if it was of the opinion that the jury’s finding was manifestly against the weight of the evidence, as is indicated by the “finding” of the court, then the court should have corrected those situations by granting a new trial on defendant’s motion therefor.

In overruling defendant’s motion to set aside the verdict of the jury, and for a new trial, the court erred.

Next to be considered is the plaintiff-appellant’s assignment of error in case No. 3918, involving the reduction of the jury’s verdict from $25,000 to $500 by the trial court, without the consent of the plaintiff, and the entering off judgment for $500.

By what legal right did the trial court thus attempt to substitute its judgment for the judgment of the jury?

There is no authority therefor cited in its “finding,” nor have we been able to find any authority in Ohio which permits a trial court, in an action for unliquidated damages, to reduce the verdict of a jury, or to render judgment for a lesser amount, without the consent of the party in whose favor the verdict was rendered to such reduction.

On the contrary, we do find the following statements by the Supreme Court of Ohio in Chester Park Co. v. Schulte, Admr., 120 Ohio St., 273, 166 N. E., 186:

“1. In an action for unliquidated damages neither the trial court nor any reviewing court has the power to reduce the verdict of a jury or to render judgment for a lesser amount without the consent of the party in whose favor the verdict was rendered to such reduction. ’ ’

“4. Neither the trial court nor any reviewing court has power or authority to reduce a verdict on any grounds without the assent of the prevailing party, unless the undisputed testimony shows an error in mathematical calculation.” (Italics ours.)

This case has been followed with approval in In re Estate of Johnson, 142 Ohio St., 49, 49 N. E. (2d), 950, and Bishop v. East Ohio Gas Co., 143 Ohio St., 541, 56 N. E. (2d), 164.

We cannot escape the conclusion that the trial court was not only without legal authority for the unusual procedure followed by it, but that such procedure patently contravened the express rules governing such situations announced by the Supreme Court of Ohio, supra.

The entering of judgment for plaintiff for $500, after the return of a verdict for plaintiff by the jury in the amount of $25,000, without plaintiff’s consent thereto, was prejudicially erroneous, and requires a reversal of the judgment.

In our opinion, the situation here presented does not admit of the entry of a judgment for plaintiff by this court.

Judgment reversed and cause remanded.

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


author: By the Court.

text:
    In re Estate of Carson.
    (No. 112
    Decided October 24, 1947.)

      Mr. Benjamin E. Seibert, for appellant.

      Messrs. Brand & Wagner, for appellees.
   By the Court.

This is an appeal on questions of law from an order of the Probate Court of Champaign county, denying probate of the purported will of Ida Carson, deceased, for the reason that at the time of its execution she was under undue influence. The record discloses that both subscribing witnesses to the will, one of whom was the granddaughter of the testatrix, and the other Benjamin E. Seibert, the attorney who drew the will, were the only, witnesses called. They testified as to all the facts essential under the law to constitute dueness of attestation and execution of the will; and that the testatrix at the time of the execution was of full age, of sound mind and memory and under no restraint, which testimony was not altered or changed by the cross-examination. There was no conflict in the testimony that the testatrix at the time of the execution of the will was not under any restraint, that she was of sound mind and memory, or that the other elements required to be shown by Section 10504-22, G-eneral Code, existed. Such being the case a prima facie case was made as a matter of law.

The cross-examination of those witnesses disclosed that the will was drawn and executed in the home of the appellant, a daughter of the testatrix, with whom the latter was staying; that the testatrix was 87 years of age; that she was frail of body; that Benjamin E. Seibert, attorney, who drew the will and was one of the subscribing witnesses thereto, was a cousin of the appellant’s husband; and that three days prior to the execution of the will the testatrix executed a written instrument whereby she elected to take under the statutes of descent and distribution instead of under the will of her deceased husband, and thereby increased her estate by approximately $12,000, concerning which ■election and her will, she consulted with Seibert who was called to her home in Urbana, Ohio, by the appellant who was acting for her mother, Ida Carson.

The record discloses further that the will was drafted by Seibert in the presence of only the testatrix, in the kitchen in the home of her daughter, Alice, in Columbus, Ohio, and that he and the decedent had consulted three days prior thereto concerning her election and her will. Up to three days prior to the execution ■of the will the testatrix lived in her home in Urbana, •Ohio, but was then moved to the home of her daughter, Alice, in Columbus. On the day.of the execution of the will the daughter, Alice, called Seibert by telephone upon the request of the testatrix to come to Columbus for the purpose of drawing the will. It was from this state of facts that the trial court drew the inference of undue influence.

It is the contention of the appellant that the judgment of the Probate Court is not sustained by sufficient evidence and is contrary to law. We think the controlling case on this subject is that of In re Will of Elvin, 146 Ohio St., 448, 66 N. E. (2d), 629, the syllabus of which provides:

“Under Sections 10504-18 and 10504-22, General Code, the following principles govern the hearing on an application to admit a will to probate: (a) No issue is presented for a contest of the will between its proponents and opponents; (b) opponents of the will may cross-examine witnesses fully upon the dueness of attestation and execution, the mental capacity of the testator and undue influence, but are not allowed to call witnesses against the admission of the will to probate; (c) a prima facie case in favor of the validity of the will is all that is required, and when all the evidence shows as a matter of law that such a prima facie case is made out, the court must admit the will to probate, even though the evidence is conflicting.”

In that case, the court said, on page 452:

“After all the validity of a will can be contested only by a civil action brought pursuant to Section 12079 et seq., General Code, after the admission of such will to. probate. In such an action the parties are entitled to a trial by jury. See Section 12082, General Code. On the hearing of an application to admit a will to probate, the Probate Court does not weigh the evidence, but merely considers the evidence favorable to the will’s validity to determine as a matter of law whether a prima facie case has been made. The opponents of the will are permitted to cross-examine the witnesses to preclude, if possible, the making of such a case. Were a contest permitted on the hearing of such an application, proponents and opponents would be affected dissimilarly by the final outcome. Proponents, aggrieved by an adjudication and final determination refusing admission of the will to probate, would have no remedy by civil action and would be deprived of the benefit of a jury trial; opponents, aggrieved by the admission of the will to probate, could contest again by civil action and would have a right to a jury trial in the second contest. The statutes governing the admission of a will to probate and its contest are in pari materia and so must be construed together. Connectively considered they do not show a legislative intent to provide for two separate contests in different courts.”

It is our conclusion that the trial court weighed the evidence, considering the inferences against the direct testimony of the two witnesses, in violation of the law as pronounced in the case of In re Will of Elvin, supra.

It is also contended by the appellant that the court erred in the admission of evidence. The record discloses that upon cross-examination of the two witnesses certain letters written by the testatrix were identified and admitted in evidence over the objections of the appellant. These letters were intended to reflect upon the mental condition of the testatrix.

We are of the opinion that the court erred in the admission of that evidence.

Section 10504-18, General Code, provides:

“The court shall cause the witnesses to the will, and such other witnesses as any person interested in having it admitted to probate desire, to come before thé court. On request of such interested person, the court shall compel the attendance of any witness by subpoena as in civil cases. Such witnesses shall be examined, and may be cross-examined, in open court, and their testimony reduced to writing and filed.”

It will be noted that that section permits the testimony of only those witnesses whom any person interested in having the will admitted to probate may desire to call. It is true such section permits the witnesses to be cross-examined, which examination should be limited to the testimony offered in chief, and the offering of evidence to controvert the testimony of the witnesses is not admissible.

It is, therefore, our conclusion that the proponents of the will made a prima facie case and the will should have been admitted to probate. The trial court cannot weigh the evidence if there is a conflict therein.

The judgment is reversed and the cause is ordered remanded to the trial court with instructions to admit the will to probate.

Judgment reversed.

Wiseman, P. J., Miller and Hornbeck, JJ., concur.


author: Ross, J.

text:
    The State of Ohio, Appellee, v. Ausberry, Appellant.

      (No. 943
    Decided June 25, 1948.)

      Mr. Paul A. Baden, for appellee.

      Messrs. Gasper é Gasper, for appellant.
   Ross, J.

This is an appeal on questions of law from a judgment of the Juvenile Court of Butler county, in which the defendant was sentenced for violation of the provisions of Section 1639-45, General Code.

Art examination of the record requires the conclusion that no error, prejudicial to the defendant, appellant herein, intervened in the trial and conviction of the defendant.

In the judgment entry of the trial court containing the sentence of the defendant, it is recited that the defendant was asked whether she had anything to say why sentence should not be pronounced. The record contained in the bill of exceptions, however, shows that the defendant was sentenced in her absence, and no claim is made that such was not the case. This-being true, the mandatory provisions of Section 13451-1, General Code, were ignored and the judgment and sentence of the trial court must be set aside, and the-case remanded to the trial court for resentence of the-defendant, but only for such purpose. Silsby v. State, 119 Ohio St., 314, 164 N. E., 232.

It is to be noted that former Section 13694, General Code, repealed, is now Section 13451-1, General Code,, except that the latter section now includes cases where-the defendant is found guilty by “the finding of the-court” as well as by the verdict of a jury.

The violation of the provisions of Section 1639-45,. General Code, constitutes a misdemeanor. Stockum v. State, 106 Ohio St., 249, 139 N. E., 855.

In certain cases, a defendant may be tried and sentenced in her absence. Section 13442-10, General' Code. However, this defendant did not request in. writing to be so tried. No journal entry appears to' such effect. Nor was the defendant “indicted.” She-was tried upon an affidavit charging a violation of Section 1639-45, General Code. In any event, she-did not escape or forfeit her recognizance after a jury was sworn. The provisions of Section 13442-10,. General Code, therefore, have no application to the-instant case.

The judgment and sentence of the Juvenile Court of Butler county of this defendant are, therefore, set aside, vacated, and reversed, and the case is remanded' to that court solely and only for the purpose of so sentencing such defendant as in the discretion of such court at that time may seem proper and in conformity to law.

Judgment reversed.

Matthews, P. J., Ross and Hildebrant, JJ., concur in the syllabus, opinion and judgment.


text:
    Teegarden, a Minor, Appellant, v. Teegarden et al., Appellees.
    (No. 138
    Decided November 6, 1947.)

      Messrs. Cummins & Boiler and Mr. Royon G. Hess, for appellant.

      Mr. Richard Faulkner and Mr. E. J. Garmhausen, for appellees.
   By the Court.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of ■Shelby county. This action was one for a divorce, the petition alleging that on the 19th day of November 1945 the plaintiff and Clifton A. Teegarden, the defendant, entered into a contract of marriage in Hamil■ton county, Ohio; that the contract was thereafter consummated; and that plaintiff and the defendant lived together as husband and wife. To the petition the defendant filed an answer' denying the marriage contract. As far as this appeal is concerned we need not consider the interests of the other two defendants.

The matter was tried to the court which rendered a written opinion general in character upon both conclusions of law and fact. No separate findings of fact were made by the court and the opinion was not made-a part of the record. On the issues joined the court, found in favor of the defendant and ordered the plaintiff’s petition to be dismissed. The only issue presented for our consideration is whether the lower court, erred as a matter of law in determining that no common-law marriage existed.

The record discloses that the bill of exceptions was-not duly filed and a motion to strike it from the files-was sustained. We, therefore, have no bill of exceptions and our determination must be based solely upon the record before us. Counsel for the plaintiff make-reference to the facts as related in the opinion of the-trial court. This, however, is not a part of the record, and is not subject to consideration in error proceedings. Baldwin v. State, 23 Ohio Law Abs., 147; In re Ruhl, 36 Ohio Law Abs., 250, 43 N. E. (2d), 760; Treiber v. Jaster, Dir., 55 Ohio App., 64, 8 N. E. (2d), 581; Eagleson v. McKee, 33 Ohio Law Abs., 38, 33 N. E. (2d), 417.

The plaintiff is urging that, from the facts disclosed' and the opinion of the trial court, the judgment is contrary to law. In order to pass upon this question, it is-necessary that we have a bill of exceptions as it is-only through that channel that the evidence can be considered by this court.

We find no error in the record, and the judgment is-affirmed.

Judgment affirmed.

Wiseman, P. J., Miller and Horn beck, JJ., concur-


author: Miller, J.

text:
    Ebeling, Admx., Appellee, v. Harman, Admx., Appellant.
    (No. 659
    Decided April 30, 1948.)

      Mr. Wilbtir D. Spidel, for appellee.

      Mr. Marion Murphy and Mr. Hugh A. Staley, for appellant
   Miller, J.

This is an appeal on questions of law from the Court of Common Pleas. The action was one for damages for wrongful death brought by the administratrix of the deceased, under Section 10509-167, General Code. A jury trial was had which resulted in a verdict for the plaintiff, appellee herein, for the sum of $4,000.

In an attempt to comply with the provisions of the; Code, the petition contains the following allegation:

‘ ‘ Plaintiff says that her decedent died leaving Anna, Ebeling, his mother, a dependent, and that by reason of his wrongful death resulting from the negligence of defendant’s decedent, the estate of plaintiff’s decedent has been damaged in the sum of $10,000.”

The first assignment of error is directed to this paragraph of the petition. The defendant, appellant herein, is contending that the petition does not state a cause of action.

Section 10509-167, General Code, provides:

“An action for wrongful death must be brought in the name of the personal representative of the deceased person, but shall be for the exclusive benefit of the surviving spouse, the children and other next of kin of the decedent. The jury may give such damages as it may think proportioned to the pecuniary injury resulting from such death, to the persons, respectively, for whose benefit the action was brought. Except as otherwise provided by law, every such action must be commenced within two years after the death of such deceased person. Such personal representative, if he was appointed in this state, with the consent of the court making such appointment, may, at any time before or after the commencement of the suit, settle with the defendant the amount to be paid.”

In the case of Brown, Admr., v. Bauman, 49 Ohio App., 49, 195 N. E., 69, the court held it was necessary to allege in the petition for whom the action was brought. Now does the petition in the instant case comply with that requirement? The record discloses that the decedent left, surviving, his mother who was named in the petition and three brothers and sisters; that this decedent and one sister were the sole support ■of the mother. The theory advanced by the appellant •arises by virtue of the pronouncement made in the •case of Karr, Admr., v. Sixt, 146 Ohio St., 527, 67 N. E. (2d), 331, the third paragraph of the syllabus of which provides:

“3. Within the meaning of Section 10509-167, General Code, reciting that an action for wrongful death is ‘for the exclusive benefit of the surviving spouse, the children and other next of kin,’ the phrase, ‘and other next of kin,’ is used in a broad sense and includes the brothers and sisters of a decedent as well as his parents, when both classes of kindred are in existence.”

However, we think the fifth paragraph of the syllabus is decisive of the question here presented.

“5. No such presumption obtains as to collateral kindred having no legal claims on the decedent, and the infliction of ‘pecuniary injury’ on them by reason of the death ought to áppear from the evidence before they may be considered in the award of damages.”

Under the statutes of descent and distribution, the brothers and sisters of the deceased are collateral kindred, and in order that they may participate in the fund created by a judgment it is necessary for the plaintiff tó plead and prove actual pecuniary damages. The petition contains no such allegation and there is not a scintilla of evidence tending to prove that they have suffered actual damages. We are of the opinion that the petition sets forth the mother’s dependency and pecuniary loss by reason of the death of her son, and therefore states a good cause of action. The collateral kindred are seeking no relief and the action cannot, therefore, be for their benefit.

The second assignment of error is directed to the court’s refusal to admit as part of the res gestae certain declarations of the driver of the defendant’s automobile made approximately five to ten minutes after the collision. The record shows that a Mrs. Brown would have testified, if permitted, that the driver of the defendant’s car made the following statement to her:

‘ ‘ Mrs. Brown, I saw this man coming toward me on East Main street; I was driving on my side of the street, and without any warning whatever he deliberately ran into me. ’ ’

Patrolman Wolfe would have testified, if permitted, that the driver of defendants car told him “that she was driving west on East Main street on her side of the street; that she noticed a man or boy approaching her on a bicycle and that as he neared her he seemed to be looking to his right constantly, and that he deliberately ran into her without giving any warning whatever, apparently intending to turn into John street.” An examination of the proffered testimony shows that the declarations were merely narrations of a past event. They were a description of the manner in which the collision occurred made after she had had opportunity to collect her thoughts and make a survey of the whole situation. In order that declarations or exclamations be admissible as a part of the res gestae, they need not always be contemporaneous, in the strict sense of the word, with the transaction in controversy, the requirement being that there be some central, logical or psychological relation between the exclamations and the primary event in controversy. There was no such relation here to the primary event. Declarations amounting merely to a narration of past events are not admissible. Cleveland, Columbus & Cincinnati Rd. Co., v. Mara, 26 Ohio St., 185, paragraph three of the syllabus of which is:

“3. In an action against a railroad company for injuries sustained, by a party by falling or being precipitated into a ditch, when in the act of landing from a car, it is not competent for the plaintiff to prove what the party said immediately afterward, and while being helped out of the ditch, as to the cause of the accident, it being no part of the res gestae, but a mere account of a past transaction.” See, also, Stough v. Industrial Commission, 142 Ohio St., 446, 52 N. E. (2d), 992; 17 Ohio Jurisprudence, 353, Section 284, and cases cited therein.

We find no error in this assignment.

The third assignment of error relates to the. failure of the court to direct a verdict for the defendant at the close of all the evidence and to the overruling of a motion for a judgment notwithstanding the verdict.

An examination of the record discloses that substantial evidence was offered to establish all the material allegations of the petition. A jury question was, therefore, presented, and the court did not err in its ruling.

The fourth assignment of error relates to special' charges given before argument to the jury, the appellant contending the same to be merely abstract statements of law and having no connection with the facts presented. We are of the opinion that the record does not sustain such a conclusion. Each of the charges given was pertinent to the issues and correctly stated the law.

The appellant contends further that if the special charges given were correct, the court erred in not giving them in the exact form presented. Special charges Nos. 1, 2 and 3 contained at the end thereof citations of sections of the General Code, which the court did not read to the jury, but the same was on the charges given to the jury. We recognize the general rule that special charges must be given as submitted without modification or must be entirely refused. However, in the instant case, we think that this rule was complied with for all intents and purposes. The citations referred to were merely for the guidance of the court in determining its correctness. We think the term, “Sec. 6307-29 G. C.,” appearing at the end of the first charge would be of no significance to the jury and would be a part of the charge only to such an extent as the numbers of the pages should they be numbered. We find no prejudicial error in these charges as given.

The sixth assignment of error relates to the refusal to give special charges Nos. 1, 2 and 4. Defendant’s special instruction No. 1 consists of nearly three pages of typewritten matter and attempts to review the entire case in one special instruction. It defines the issues in the case, it attempts to define negligence, it states there is no presumption of negligence, it defines burden of proof, and it combines instructions as to the law with repetition of allegations contained in plaintiff’s petition and defendant’s answer, some of the allegations in the answer being supported by no evidence. The whole charge is confusing and ambiguous and is not a proper instruction within the definition and requirements as laid down in Scott, Admx., v. HyGrade Food Products Corp., 131 Ohio St., 225, 2 N. E. (2d), 608, wherein the court said:

“The court may properly refuse to give requested Instructions before argument which are indefinite, uncertain or ambiguous, or otherwise misleading. ’ ’

Special charges Nos. 2 and 4 are correct statements of law, but they are not pertinent to the facts in the case, being based upon facts not found in the record. The court did not err in refusing to give these special instructions to the jury. Neither did it err in its general charge. It was full and complete and clearly set forth the legal principles applicable to the evidence presented.

The verdict is not against the manifest weight of the evidence, but is in accordance with the same. We find no error in the record and the judgment is affirmed.

Judgment affirmed.

Wiseman, P. J., and Hornbeck, J., concur.