text:
    Wallace, Appellant, v. Crouse et al., Appellees.
    (No. 4824
    Decided March 10, 1955.)

      Mr. Walter R. Hill, for appellant.

      Messrs. Tyaclt & Gertner, for appellees.
   Wiseman, J.

This is an appeal on questions of law from a judgment rendered in favor of the defendants by the Municipal Court of Columbus in an action in forcible entry and detainer, and for rent claimed to be due.

All errors assigned are encompassed in two claims of the appellant: That the judgment is contrary to law; and that the court erred in ruling that the premises involved were not decontrolled.

Appellant contends that the premises were a hotel. Even though the appellant was granted a license to operate a hotel by the State Fire Marshal, on the facts adduced we have no difficulty in holding that the trial court properly found that the structure was not a ‘ ‘ hotel, ’ ’ as defined in the Housing and Eent Act of 1947, as amended — Title II, Section 202, (c) (1) (61 Stats, at L., Pt. 1, 196, 197).

The appellant contends that the premises were decontrolled by conversion. Subsequent to February 1, 1947, and prior to April 1, 1949, the appellant, the owner of the premises, made alterations which consisted principally of extending the rear of the three-story structure by enclosing a porch, by which two additional sleeping rooms were constructed and added on each of the three floors of the original structure. Before alterations, the structure contained 12 rental units, and when alterations were completed it contained 18 rental units on the three floors and an additional basement rental unit. The rental unit occupied by the defendants was in the front of the structure on the first floor, and this unit, together with the other original units, was not changed or disturbed in any manner. The trial court found that “the particular front apartment occupied by the defendants was not converted or remodeled so as to become a part of additional housing accommodations.” Do the facts bring the Crouse rental unit within the exception to controlled accommodations as provided in the Housing and Eent Act of 1947 as amended? Under Section 202 (Definitions) in subsection (c), 61 Stats, at L., Pt. 1, 196, 197, it is stated:

“The term ‘controlled housing accommodations’ means housing accommodations in any defense-rental area, except that it does not include—

íí X * *

“(3) any housing accommodations (A) the construction of which was completed on or after February 1, 1947, or which are additional housing accommodations created by conversion on or after February 1,1947” * * *. (Emphasis added.) See Title 50, Section 1892, Supp., U. S. Code.

The Housing Expediter issued regulations implementing the statutory enactments, and in Section 1 (b) the regulation provides:

“Housing to which, this regulation does not apply. This regulation does not apply to the following:
U * # *
“(8) Accommodations first offered for rent, (i) Housing accommodations, the construction of which was completed on or after February 1, 1947, or which are additional housing accommodations created by conversion on or after February 1, 1947 * * *.
((# * m
“For the purposes of this paragraph (8) the word ‘conversion’ means (1) a change in a structure from a nonhousing use or (2) a structural change in a residential unit or units involving substantial alterations or remodeling and resulting in the creation of additional housing accommodations.” (Emphasis ours.)

This case does not involve the question as to whether any of the new accommodations are controlled. The question is whether the structural changes in the rear of the building, by which additional acommodations were provided, decontrolled other rental units which were not changed or disturbed by the structural changes.

Counsel for the appellant cites three cases in support of the contention that the entire premises, consisting of 19 rental units, were decontrolled by the structural changes. In our opinion these cases can be distinguished on the facts. In Flynn v. Woods (C. C. A., 8, 1950), 181 F. (2d), 867, a five-room flat was converted into two separate self-contained units, and plumbing was installed in each separate unit. The court held that the creation of two new units out of one single flat constituted a conversion, and consequently the premises were decontrolled. In United States v. Beatty (1949), 88 F. Supp., 791, a single housing unit was converted into two complete, self-contained housing units, whereby additional accommodations were provided. The court held that the premises were decontrolled. In Woods v. Baker (1949), 84 F. Supp., 339, where the structure originally contained two units, one on the first floor and one on the second floor, and the first floor was converted into two apartments, the court held the first floor was decontrolled. In that case the court was careful to point out that the second floor was not converted.

Counsel for the appellee cite three cases wherein the facts bear a close similarity to the facts in the instant case. In Comstock v. Mahon (1948), 76 N. Y. Supp. (2d), 642, the second paragraph of the headnotes is as follows:

“Under provision of Housing and Rent Act excepting from control newly constructed housing accommodations completed after February 1, 1947, newly constructed housing units and additional housing units created by conversion are exempt but units previously existing within converted structure are not exempt and hence where landlord constructed three new apartments on third floor after specified date, changes did not take out from rent control every apartment in structure but only the apartments on the third floor. Housing and Rent Act of 1947, Sections 1 et seq., 202 (b, c), 50 U. S. C. A. Appendix, Sections 1881 et seq., 1892 (b, c).”

In Woods v. Malas (1948), 81 F. Supp., 485, the first and second paragraphs of the headnotes are as follows:

“Interpretation of Housing Administrator of Housing and Rent Act of 1947 is binding on District Court unless clearly erroneous or inconsistent with regulations. Housing and Rent Act of 1947, 50 U. S. C. A. Appendix, Sections 1881 et seq.

“Units of six-unit apartment building in possession and occupancy of three tenants while building was being remodeled and converted into 12-unit apartment building remained under control and subject to Housing and Rent Act of 1947, since part of building retained and occupied by tenants during conversion was not an ‘additional housing accommodation’ subject to decontrol under the Act. Housing and Rent Act of 1947, Section 202 (c) (3) (A), 50 U. S. C. A. Appendix, Section 1892 (c) (3) (A).

“See Words and Phrases, Permanent Edition, for other judicial constructions and definitions of ‘Additional Housing Accommodation.’ ”

In United States v. Patton Adjustments, Inc. (1951), 99 F. Supp., 644, where the house originally consisted of a single-family brick cottage, containing five or six rooms on the main floor, an unfinished attic, and a full basement, and where the owner in the latter part of the year 1948 converted what was formerly the basement into a two-room and a bath apartment and made certain improvements in the main or first floor unit, building in cabinets in the kitchen, painting and redecorating the interior, wiring the attic and finishing it for use as an adjunct of the first floor living quarters, the court held that the living quarters on the main or first floor were not decontrolled. The first paragraph of the headnotes is as follows:

“Installation, in first floor unit, of built-in kitchen cabinets, painting and redecorating premises, wiring and finishing attic as an adjunct of the first floor living quarters, and filling in front lawn, were insufficient to bring first floor unit within exemption as a decontrolled housing accommodation granted in Housing and Rent Act of 1947 by virtue of a conversion thereof after February 1, 1947. Housing and Rent Act of 1947, Sections 202 (c) (3), 204 (b, d), 206 (a), as amended, 50 U. S. C. A. Appendix, Sections 1892 (c) (3), 1894 (b, d), 1896 (a).”

The facts in the Patton case make a stronger case for decontrol than the facts in the instant case.

In our opinion the Crouse rental unit was not decontrolled and the excess money rent paid by Crouses was properly applied to the payment of the legal rent chargeable, to wit, $10 per week. The trial court properly found that the defendant was not in arrears for the payment of rent; that there was no rent due; and judgment for the defendant was properly entered on both causes of action, the one for eviction and the other for rent.

We find no error in the record prejudicial to the rights of the appellant; the judgment is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Melville, Gdn., Appellant, v. The Greyhound Corp. et al., Appellees.
    (No. 7893
    Decided November 29, 1954.)

      Mr. James C. Utrecht and Mr. Roy L. Struble, for appellant.

      Messrs. Long & Bloom, for appellee The Greyhound Corporation.
   Per Curiam.

This is an action for damages as compensation for personal injuries received by Josselyn Farmer, an incompetent, against The Greyhound Corporation and Paul A. Briol. The basis of the claim against The Greyhound Corporation was that it had been negligent in the operation of its bus; and the basis of her claim against Briol was that he had been guilty of willful and wanton misconduct in the operation of his Hudson automobile in which she was a passenger; and that the negligence of the one and the misconduct of the other concurred to directly cause a collision of the two vehicles, resulting in the plaintiff receiving the injuries complained of.

On motion of the defendant Briol, made at the close of the plaintiff’s evidence, the case was withdrawn from the jury as to him, and he was dismissed without day. The trial proceeded against the defendant The Greyhound Corporation and resulted in a verdict for The Greyhound Corporation. The plaintiff’s motion to set aside the verdict and for a new trial was overruled and judgment was entered on the verdict for The Greyhound Corporation. This appeal is from that judgment. No appeal was taken from the dismissal of defendant Briol.

Various errors are assigned for the reversal of the judgment.

(1) It is urged that the court erred in admitting in evidence a statement by the operator of the Greyhound bus. This statement was made immediately after the collision and while the passengers were being assisted out of the overturned bus by the operator. The statement was: ‘ ‘ God being my judge, I could not have gotten out of the way. The Hudson car ran right in front of me. ’ ’ This statement was made before the operator had time to reflect and it seems to us that it was a spontaneous statement reflecting color upon an incident of which it was a part, and, therefore, comes within the exception to the hearsay rule known as the res gestae. It was a part of the whole incident and was not a mere narration of a past transaction. ,

The operator of the bus testified fully and to the same effect — that Briol’s automobile entered the lawful lane of travel of the bus so close that he had no opportunity whatever to avoid it. If believed, it would justify the conclusion he expressed. Assuming that the statement was not a part of the res gestae, and, therefore, incompetent, we are of the opinion that its admission was not so prejudicial as to justify the reversal of the judgment on that ground.

(2) Counsel also urge as error the use on cross-examination of written statements made by witnesses. We see no reversible error in this.

(3) Defendant offered evidence that this particular bus was equipped with a governor which limited its speed to not more than 58 miles per hour, and that it was in good order and operating at the time. The plaintiff, in an effort to rebut this, offered to prove that buses of defendant on this route frequently exceeded 58 miles per hour. The court sustained an objection to this offer, and this is assigned as error.

We are of the opinion that the court did not err in sustaining this objection. The evidence was irrelevant.

(4) Upon sustaining Briol’s motion for dismissal of the action as to him, the court made a statement to the jury explaining the reasons for its action. The statement was rather lengthy, and in the course of it the court said, after reading the guest statute: “Now you say, why is such a thing; it is because it was found there were too many cases of collusion between an operator of a vehicle and his guest in order to induce payment from insurance companies.” It is claimed that the court thereby “by innuendo taints plaintiff’s claim with fraud.”

We need not stop to consider whether the court properly interpreted the motive of the General Assembly. The whole statement of the court related to the plaintiff’s claim, as a passenger, against Briol. It had nothing to do with the plaintiff’s claim against The Greyhound Corporation. Furthermore, there was no suggestion that there was collusion between Briol and Josselyn Farmer against any insurance company. There could not have been any such intimation. Josselyn Farmer was an incompetent and did not testify. We find no prejudicial error in the court’s remarks.

(5) Next, it is urged that the court erred in giving certain special charges. We are of the opinion that charges Nos. 4 and 5 objected to by appellant are correct statements of the law. In special charge No. 7, the court quoted Sections 6307-29, 6307-30(a)3, 6307-35 (b), 6307-38(a), and 6307-41, General Code, followed by the statement that “I further charge you that if you find by a preponderance of the evidence that Paul Briol, the driver of the car in which the plaintiff was riding, violated one or more of these sections, he was guilty of negligence,” and then instructed the jury that if Paul Briol’s negligence was the sole cause of the collision the plaintiff could not recover.

It is urged that the court was not justified in charging that violation of some of the rules laid down in the quoted sections would be negligence as a matter of law. There is no doubt that the violation of some of them would be negligence as a matter of law.

The evidence in this case shows that Briol was traveling southwardly on route 42 in a line of traffic, and that he suddenly left that lane and turned into the lane of travel of the Greyhound bus. In doing so, he violated various provisions of the traffic code, and the plaintiff in her pleadings charged him with willful and wanton misconduct in doing so. However, the court found against the plaintiff as to her claim that Briol was guilty of willful and wanton misconduct. It did not hold against her as to his negligence. In the plaintiff’s brief the assertion of Briol’s negligence is repeated. There was no dispute about it and the court would have been justified in so charging. The only issue on this phase of the case was whether Briol was the sole cause of the collision. It did not matter whether his action was negligent or otherwise, if it was the sole cause of the collision. However, it would be hard to conceive of it as otherwise than negligent if it was the sole cause. And the plaintiff by special charges requested the court to submit the issue to the jury in that way, and, of course, cannot now complain because the court complied.

We find no prejudicial error against the plaintiff in leaving it to the jury to determine whether Briol’s conduct was negligent. The error was against The Greyhound Corporation.

We have examined the other assignments, but find no error prejudicial to the plaintiff.

For these reasons, the judgment is affirmed.

Judgment affirmed.

Matthews, P. J., Ross and Hildebrant, JJ., concur.


author: Kovachy, J. Skeel, J.,

text:
    Heidtman et al., Appellants and Cross-Appellees, v. City of Shaker Heights et al., Appellees and Cross-Appellants.
    (No. 23068
    Decided May 12, 1954.)

      Messrs. Smoot & Reimer, for appellants and cross-appellees.

      Mr. Ralph W. Jones, for appellees and cross-appellants.
   Kovachy, J.

This cause is before us on questions of law on appeal by the plaintiffs and a cross-appeal by defendants from a judgment rendered by the Court of Common Pleas of Cuyahoga County in a declaratory judgment action in which the court was asked to determine:

“"Whether an initiative petition seeking enactment of an ordinance to establish the three-platoon system in the fire department and filed in accordance with the general laws of Ohio and the charter provisions of the defendant city of Shaker Heights, properly may be rejected as defective by the officials and council of the defendant city on the ground that circulation of the initiative petition and parts thereof by members of its fire department constitutes political activity in violation of Section 486-23 of the General Code of Ohio [Section 143.41, Revised Code].”

The plaintiffs are: Alvin R. Heidtman, Frank J. Schieferstein, John J. Rafter, and Shaker Heights Fire Fighters Association, Local No. 516, International Association of Fire Fighters, A. F. L.

The defendants are: city of Shaker Heights, a municipal corporation, John W. Barkley, Mayor of the city of Shaker Heights, Robert D. Templeman, Wilson D. Stapleton, John H. Lansdale, Jr., R. Scott Mueller, Joseph R. Fawcett, Robert B. Denison, and William R. Van Aken, councilmen of the city of Shaker Heights, Ralph W. Jones, Director of Law of Shaker Heights, Thomas E. Cook, Director of Finance and Auditor of Shaker Heights, Ohio.

The agreed statement of facts reads:

“(1) Plaintiffs Heidtman, Schieferstein and Rafter are employees of the city of Shaker Heights, Ohio, employed in the classified service of said city as firemen in its fire department and constituted a committee of petitioners who, as residents, registered voters and taxpayers of the city of Shaker Heights caused to be circulated an initiative petition seeking enactment by ordinance of the three-platoon system for firemen. Shaker Heights Fire Fighters Association, Local No. 516, International Association of Fire Fighters, American Federation of Labor, is an unincorporated association with which the individual plaintiffs are affiliated as members.

“ (2) The defendant, city of Shaker Heights, is a municipal corporation and the individual defendants are the councilmen and officers of the city of Shaker Heights.

“(3) The charter of the city of Shaker Heights contains the following provisions respecting initiative:

“ ‘Article III.

“ ‘Section 1. Initiative. The electors of the city shall have power to propose any ordinance or resolution, except an ordinance for the appropriation of money or an ordinance making a tax levy, and to adopt or reject the same at the polls, such power being known as the initiative. An initiated ordinance or resolution may be submitted to the council by petition signed by at least five per cent (5 per cent) of the registered electors of the city. When so submitted, the council shall forthwith determine the sufficiency of the petition and if found sufficient, shall at once have the proposed ordinance or resolution read and referred to an appropriate committee which may be a committee of the whole. Provision shall be made for public hearings on the proposed ordinance or resolution not later than 30 days after the date on which such ordinance or resolution was submitted to the council. The council shall within 40 days after such ordinance or resolution is submitted, take final action thereon, either enacting or rejecting the proposed ordinance or resolution. If the council fails or refuses to pass such proposed ordinance or resolution or passes it in some form different from that set forth in the petition thereof, the committee of the petitioners may require that it be submitted to a vote of the electors either in its original form or in the amended form, by filing with the council an additional petition signed by at least two per cent (2 per cent) of registered electors of the city, and if said additional petition is signed by at least five per cent (5 per cent) of such registered electors, the date of the election may be fixed therein, not less than 60 days from the time of filing such additional petition. Such additional petition shall be filed within 10 days after the final action on such ordinance or resolution by the council. The council shall thereupon provide for submitting such ordinance or resolution to the vote of the electors at the date so fixed, or at the next general election occurring more than 60 days from the filing of such additional petition, if no date be so fixed therein.

i t t # # #

“ ‘Section 3. Petitions. An initiative or referendum petition may be circulated in separate parts; but each part shall contain a full and correct copy of the title and text of the proposed or referred ordinance or resolution, and the separate parts shall be bound together and presented as one instrument. Each signer shall be a registered elector of this city and shall sign his name in ink or indelible pencil and shall place on the petition his name, his place of residence by street and number, and the date of signing the petition. The form of affidavit provided for nominating petitions by general law, and the other requirements of general law regulating nominating, initiative and referendum petitions shall apply in the case of initiative and referendum in this city.’

“ (4) Plaintiffs Heidtman, Schieferstein and Rafter, constituting the committee of petitioners did on January 17, 1953, file with Thomas E. Cook, Director of the Finance Department and the city Auditor of said city of Shaker Heights, a duly verified copy of the title and text of a proposed ordinance, a true copy of which was attached to the original petition on file in this cause, and thereafter an initiative petition was distributed and circulated as parts thereof by firemen, members of the plaintiff association, all employees in the classified service of the Fire Department of the City of Shaker Heights, Ohio.

“(5) On January 26, 1953, plaintiffs Heidtman, Schieferstein and Rafter, constituting the committee of petitioners, filed with Thomas E. Cook, an initiative petition in 50 parts, in accordance with the provisions of Article III, Sections 1 and 3 of the aforesaid Charter, of the City of Shaker Heights, each part petition containing a full and correct copy of the title and text of the proposed ordinance. A true copy of the initiative petition as circulated was attached to the original petition on file in this cause.

“(6) Plaintiffs Heidtman, Schieferstein and Rafter on January 29, 1953, filed with Thomas E. Cook, in accordance with the provisions of Section 4227-9, General Code of Ohio (Revised Code 731.35) their sworn statements as circulators.

“ (7) The Board of Elections of Cuyahoga County, state of Ohio, having had referred to it by defendants, the initiative petition to determine the sufficiency of the signatures thereon, reported thereafter to the defendants that the petitions contained 2132 signatures which could be certified as being genuine signatures of registered electors of the city of Shaker Heights. As of February 2, 1953, there were 19,107 registered electors in the city of Shaker Heights and 2132 valid signatures fulfilled the requirements respecting the number of valid signatures, in accordance with Article III, Section 1, of the Charter of the City of Shaker Heights.

“ (8) On February 2, 1953, at a meeting of the Council of the City of Shaker Heights it was reported that, although there were sufficient valid signatures under the provisions of the charter, the ordinance was not properly proposed by the circulators thereof for the reason that the separate part petitions were submitted by members of the Fire Department of the City of Shaker Heights and that in doing so the circulators of the petition had violated Section 486-23 of the General Code of Ohio (Eevised Code 143.41) which reads in part, as follows: * * * nor shall any officer or'employee in the classified service of the state, the several counties, cities, and city school districts thereof, be an officer in any political organization or take part in politics other than to vote as he pleases and to express freely his political opinions,’ and that in circulating the part petitions, members of the plaintiff association, including the individual plaintiffs had engaged in politics and that the petitions having been circulated in violation of law, it was recommended by Balph W. Jones that the Council of the City of Shaker Heights had neither, the duty nor the right to proceed further with the petition and the City Council of Shaker Heights by an affirmative majority vote rejected the petition.”

The judgment of the court, as appears in the journal entry, was as follows:

“(1) That an actual controversy does exist between plaintiffs, Heidtman, Schieferstein and Bafter and the defendants, and the court has jurisdiction for the purpose of rendering a declaratory judgment as between them and the defendants:

“(2) That no actual controversy exists between the plaintiff association and the defendants, and the court lacks jurisdiction for the purpose of rendering a declaratory judgment as between it and the defendants, and that the plaintiff association is dismissed as a party plaintiff in this cause;

“(3) That the action and conduct of the plaintiffs, Heidtman, Schieferstein and Rafter and 54 other firemen, all members of the fire department in the classified civil service of the defendant, city of Shaker Heights, in preparing, circulating and filing an initiative petition to secure enactment of an ordinance to establish the three-platoon system in its fire department and filed in accordance with the general laws of the state of Ohio and the charter provision of the defendant, city of Shaker Heights, constituted a taking part in politics in violation of civil service laws; particularly Revised Code Section 143.41 (General Code Section 486-23); and

“(4) That neither the initiative petition nor the proposed ordinance were rendered illegal or void by the action and conduct of plaintiffs Heidtman, Schieferstein and Rafter, and other members of the fire department in the classified civil service of the city of Shaker Heights, and the defendants could not refuse to recognize the validity of' the initiative petitions and therefore improperly failed to process and continue proceedings on the petitions in violation of the charter provisions of the defendant, city of Shaker Heights, Ohio.”

In their first assignment of error plaintiffs say:

“The preparation, circulation and filing of an initiative petition, by employees in the classified service of the city of Shaker Heights, in the fire department, does not constitute that kind of activity prohibited by the civil service laws of the state of Ohio, and it was therefore error on the part of the trial court to hold that such conduct and activity was a violation of civil service law.”

Section 486-23 of the General Code (Section 143.41, Revised Code), reads:

“No officer, employee, or subordinate in the classified service of the state, the several counties, cities and city school districts thereof, shall directly or indirectly, orally or by letter, solicit or receive, or be in any manner concerned in soliciting or receiving any assessment, subscription or contribution for any political party or for any candidate for public office; nor shall any person solicit directly or indirectly, orally or by letter, or be in any manner concerned in soliciting any sncb assessment, contribution or payment from any officer, employee, or subordinate in the classified service of tbe state, the several counties, cities or city school districts thereof; nor shall any officer or employee in the classified service of the state, the several counties, cities and city school districts thereof be an officer in any political organization or take part in politics other than to vote as he pleases and to express freely his political opinions. ’ ’

The part of the statute vital to our consideration in this case is “ * * * nor shall any officer or employee in the classified service * * * take part in politics, ’ ’ for the reason that the trial judge found that the conduct of the individual plaintiffs in preparing, circulating and filing an initiative petition • constituted a taking part in politics in violation of Section 486-23, General Code (Section 143.41, Bevised Code), and thereby concluded that the word “politics” as therein used connotated political activity of a general and broad nature.

Plaintiffs urge that the word “politics” as used in such section of the General Code has a limited and restrained meaning and refers to politics of a partisan nature usually indulged in by political parties in the nomination and election of candidates for public office. They say that the fundamental purpose for establishing civil service in government was to create a system by which appointments to public service were to be based on fitness and merit rather than on consideration of one’s political activity in behalf of candidates, and that consequently the object was to eliminate the evils of the so-called “spoils system” in which appointment to or removal from public service was determined by the consideration of whether the person concerned was a protagonist for the victorious or the defeated party.

Defendants contend for a broader interpretation of the word “politics” and draw to our attention a definition this court promulgated in the case of Green v. Cleveland, 33 Ohio Law Abs., 72, 33 N. E. (2d), 35, at page 76:

“It is the conclusion of the majority of the court that any election in which the voters are asked to pass judgment on candidates for office, or on issues, is political in its purpose and result * *

They say the unlawful aspect of the conduct of the individual plaintiffs was that it was political in nature and that this court’s definition of the word “political” in the Green case, supra, is inescapably fatal to plaintiffs’ theory and contention.

The trial court determined the conduct of the individual plaintiffs to be in violation of the civil service law on the authority of the Green case.

We find many differences between the facts of the Green case and the case here under consideration. The Green case had to do with the interpretation of a section of a charter of the city of Cleveland that had been adopted by vote of the people to regulate the conduct of persons in the service of the city, both classified and unclassified, in political matters and was comprehensive in scope. Its principal object was to control the political activities of the city employees in conformance with local concepts and local conditions then and there existing. For instance, the charter provided for the election of officials on a non-partisan ballot and did not recognize party organizations whatever. In the case here before us, we are concerned with a penal statute, having state-wide application, enacted by the General Assembly to prohibit the political activities of officers and employees in the classified service of the state, the several counties, cities and city school districts thereof, in certain specified respects. Being a penal statute, it must be strictly construed. 37 Ohio Jurisprudence, 744, Section 420. Moreover the decision in the Green case turned upon the meaning of the expression, “a political campaign,” as related to the conduct of city employees in the classified service immediately preceding an election. Here, we are concerned with the meaning of the expression, “take part in politics,” as regards the conduct of employees in the classified service in preparing, circulating and filing an initiative petition with respect to their own conditions of employment, with no election designated or in immediate prospect. Obviously, the Green case is not analogous to this case, and an analysis of the statute involved becomes necessary for a proper disposal of the questions involved.

The Supreme Court of Ohio stated in the fourth paragraph of the syllabus of Cochrel, a Minor, v. Robinson, 113 Ohio St., 526, 149 N. E., 871, that:

“In the construction of a statute, the primary duty of the court is to give effect to the intention of the Legislature enacting it. Such intention is to be sought in the language employed and the apparent purpose to be subserved, and such a construction adopted which permits the statute and its various parts to be construed as a whole and give effect to the paramount object to be attained.”

What was the paramount object of the Legislature in enacting this statute? Prior to civil service, the “spoils system” of politics predominated in administrations of the state, cities, counties and city school districts. The political party victorious at the polls saw to it that only a person politically active in its behalf during the campaign be appointed to office. Fitness and competence were of secondary importance and lacking more often than not in the individual under that system. Under civil service, however, a person is appointed to office on the basis of merit and fitness after competitive examination. So, it seems to us, the Legislature in Section 486-23, General Code (Section 143.41, Revised Code), prohibited political activity on the part of a person in the classified service to make him independent of any political party control for appointment to and continuance in office and to enable him to pursue his duties unaffected by such party’s fortune in the political arena. The efficiency and discipline of the public service was thereby greatly enhanced and the tenure in office of the public servant stabilized and protected.

Section 486-23, General Code (Section 143.41, Revised Code), prohibits a person in the classified service (1) from being in any way involved in seeking assessments, subscriptions or contributions for a political party or candidate (nor is any person allowed to seek the same from anyone in the classified service); and (2) (a) from being an officer in any political organisation or (b) from taking part in politics, other than to vote and to express one’s political opinions.

The word political is used three times in the body of the statute and once in its heading. The word politics is used but once. The first time, the word political is used with the word party. The ordinary and usual meaning of a political party is well known. It is an organization seeking or exercising power in the government or public affairs of a state, municipality or the like. (See the New Century Dictionary.) The word political in this connection is clearly used in its narrow sense, meaning partisan politics. The second time, the word political is combined with the word organisation. A political organisation in its usual and ordinary sense means one connected with and serving the purposes of a political party, yet it may be one to further a political cause not partisan in nature, such as a charter amendment, bond issue, special tax levy, etc. Which did the Legislature intend here? In the first provision of the statute, a person in the classified service is prohibited from soliciting or receiving assessments, subscriptions or contributions on behalf of a political party or a candidate for a public office. Since political party and candidate for office are the only categories mentioned, the Legislature patently intended to restrict such political activity to partisan politics alone. Consequently, a person in the classified service is free to obtain funds for political organizations nonpartisan in nature and not be in violation of this statute.

Now, if a person in the classified service may engage in the solicitation and receiving of funds for political organizations serving nonpartisan political causes, it would be highly inconsistent for the Legislature to say to the same person that he cannot serve as an officer of such political organization. It seems to us, therefore, that the Legislature, in prohibiting a person in the classified service from acting as an officer in any political organisation, used the word political in its narrow sense and intended that it have a limited and restrained meaning in the expression, political organisation. In this sense it connotes a body serving partisan politics.

Inasmuch as the word political in the mentioned instances has a narrow and restrained sense, rather than a broad and general sense, the Legislature manifestly intended that the word politics have a similar connotation. Black on Interpretation of Laws (2d Ed.), says at page 196:

“General terms or provisions in a statute may be restrained and limited by specific terms or provisions with which they are associated.”

Chief Justice Bartley of the Supreme Court of Ohio, in Teaff v. Hewitt, 1 Ohio St., 511, at page 543, 59 Am. Dec., 634, stated that:

“A statute must he construed with reference to the subject matter of it, and its real object and true intent.”

In Rhodes v. Weldy, 46 Ohio St., 234, 20 N. E., 461, 15 Am. St. Rep., 584, in paragraph two of the syllabus, the Supreme Court stated as follows:

“"Where the same word or phrase is used more than once in the same act in relation to the same subject-matter and looking to the same general purpose, if in one connection its meaning is clear and in another it is otherwise doubtful or obscure, it is in the latter case to receive the same construction as in the former, unless there is something in the connection in which it is employed, plainly calling for a different construction.”

Moreover, if the Legislature intended the expression “take part in politics” to have the all-inclusive and comprehensive meaning claimed by the defendants, there would be no purpose in including the particular provisions of the statute preceding it. In fact they would amount to mere surplusage.

Officers and employees in the classified service have families and are home owners, taxpayers and civic minded citizens of the community in which they live. They have the same interests in its welfare, and are just as public spirited in contributing their efforts toward its development and growth as the citizens otherwise occupied. The Legislature could have no purpose in curtailing the normal participation in community affairs of public servants beyond what was necessary to promote the efficiency, integrity and discipline of the public service.

The majority of this court, therefore, holds that the preparation, circulation and filing of an initiative petition by the individual plaintiffs in this case was not in violation of Section 486-23 of the General Code (Section 143.41, Revised Code), and that the judgment of the Common Pleas Court with respect thereto should be and is reversed.

Plaintiffs in their second assignment of error say:

“The plaintiff association is a necessary and proper party plaintiff, together -with the individual plaintiffs because all have a common interest in the subject of the action and when declaratory relief is sought all persons shall be made parties who have or claim any interest which would be affected by the declaration. Hence it was error for the trial court to dismiss the plaintiff association as a party because of its common interest which was affected by the declaration of the court. ”

We believe the action of the trial court in this regard was not erroneous. The action in this case was brought by the individual plaintiffs “on behalf of themselves and others who are so numerous that it is impractical to bring them all before the court”; and is clearly a class suit, including all persons directly involved in the preparation, circulation and filing of the initiative petition. The trial court found no actual controversy between the plaintiff association and the defendants. It is plain there was none.

Defendants say in their cross-appeal that the trial court erred in holding that the initiative petition and the proposed ordinance were not rendered void by the activities of the individual plaintiffs, and that it erred in failing to hold that the Shaker Heights council’s determination of the insufficiency of the petition was conclusive of the matter.

In view of our holding that the preparation, circulation and filing of the petition by the individual plaintiffs herein was not in violation of state law, the trial court’s judgment that neither the initiative petition nor the proposed ordinance were illegal or void must be and is affirmed. The question as to the conclusiveness of the action of the Shaker Heights council in respect thereto requires further consideration on our part.

Defendants point out in their brief that “the Shaker Heights charter provides that upon the filing of the preliminary petition looking toward the adoption of an initiative petition, ‘the council shall forthwith determine the sufficiency of the petition’ (Article III, Section 1) and that it is stated in the petition and has never been contraverted that the petition in the present instance was presented to the council on January 26, 1953, was then referred to the Director of Law and the Clerk of Council ‘to determine its sufficiency,’ that these officers reported to council at a special meeting held on February 2, 1953, that the Director of Law reported the petition to be insufficient, giving his reasons and that the council, upon the Law Director’s recommendation, rejected the petition and in so doing, the council discharged a duty which was committed to it by the charter of the city.”

The law with respect to a legal body determining the sufficiency of a petition was laid down by the Supreme Court of Ohio in the case of State, ex rel. Gongwer, v. Graves, Secy. of State, 90 Ohio St., 311, in paragraph three of the syllabus, 107 N. E., 1018:

“The Secretary of State, when acting as state supervisor of elections, has the authority to hear and determine the sufficiency and validity of all petitions filed with him under the provisions of Section 1 c of Article II of the Constitution of this state, and his decision thereon is final, unless such decision has been fraudulently or corruptly made or procured, or unless he has been guilty of an abuse of discretion.”

Under the facts of this case, there cannot be, nor as a matter of fact are there, any claims of fraud or corruption on the part of the Council of the City of Shaker Heights in its vote to reject the petition. The initiative petition was filed in fifty parts with the city auditor, as required by Section 4227-8 of the General Code (Section 731.34, Revised Code). Each part contained a full and correct copy of the title and text of the proposed ordinance as required by Article III, Sections 1 and 3, of the Charter of the City of Shaker Heights. Plaintiffs Heidtman, Schieferstein and Rafter filed their sworn statements as circulators in accordance with the provisions of Section 4227-9 of the General Code (Section 731.35, Revised Code). The Board of Elections of Cuyahoga County reported sufficient genuine signatures of registered electors of the city of Shaker Heights to comply with the requirements of its charter.

It therefore appears that the individual plaintiffs had complied with all applicable provisions of the Charter of the City of Shaker Heights and of the laws of the state of Ohio. Under such circumstances the Council of the City of Shaker Heights had the clear duty to declare this petition sufficient, and at once have the proposed ordinance read and referred to an applicable committee, which may be a committee of the whole as provided for in Article III, Section 1, of the charter.

We consequently hold that the judgment of the Common Pleas Court that “the defendants could not refuse to recognize the validity of the initiative petition and, therefore, improperly failed to process and continue proceedings on the petition in violation of the charter provisions of the defendant city of Shaker Heights” was not in error and should be, and herewith is, affirmed. To hold the petition insufficient under these circumstances would amount to an abuse of discretion.

Judgment reversed in part and affirmed in part.

Hurd, P. J., concurs.

Skeel, J.,

dissenting.

I dissent for the reason that the prohibition against civil service personnel engaging in politics under the provisions of Section 143.41, Revised Code, was violated by the plaintiffs in circulating initiative petitions among the electors of the city of Shaker Heights and seeking to induce such electors to sign the same; and for that reason the city council did not abuse its discretion in holding that the petitions were not sufficient under the provisions of the Charter of the City of Shaker Heights.


author: Wiseman, J. Wiseman, J.

text:
    Beach, Appellee, v. Beach, Jr., Appellant.

      (No. 2319
    Decided March 24, 1955.)

      Mr. Robert W. Schroader and Mr. James C. Baggott, for appellee.

      Messrs. Canny, Stewart & Cromer, Messrs. Landis, Ferguson, Bieser & Greer and Mr. Charles S. Bridge, for appellant.
   Wiseman, J.

This cause is submitted on motion of plaintiff, appellee herein, the wife, for an order requiring the defendant, appellant herein, the husband, to pay the plaintiff a reasonable amount for expenses of suit.

This is an appeal on questions of law from an order of the Common Pleas Court, Division of Domestic Relations, of Montgomery County, in an action for divorce, directing the defendant to pay as temporary alimony the sum of $400 toward plaintiff’s attorney fees. The failure to pay resulted in a contempt charge on which the defendant was held in contempt and ordered to pay a fine of $200 and sentenced to be imprisoned 10 days. Prom that order this appeal is taken. The divorce case is still pending in the lower court.

After the appeal was lodged in this court, the plaintiff filed her motion for an order requiring the defendant to pay a reasonable amount for expenses of suit. This motion could apply only to expenses incident to making a defense to this appeal. In the consideration of this motion we are not concerned with the merits of the appeal.

Section 3105.14, Revised Code (formerly Section 8003-15, General Code, which was analogous to Section 11994, General Code) provides as follows:

“On notice to the opposite party of the time and place of the application, the Court of Common Pleas, or a judge thereof in vacation, may grant alimony to either of the parties for his sustenance and expenses during the suit and allowances for the support of minor children of the marriage or by adoption during the pendency of the action for divorce, or alimony alone. When an appeal is taken by either party, the Court of Appeals, or a judge thereof in vacation, may grant like alimony and support during the pendency of the appeal, upon like notice. ” (Emphasis added.)

At once the question is presented as to whether this section has application to this appeal, which is from an order made in a contempt proceeding for failure to pay temporary alimony. Who is the real party in interest, the plaintiff, the wife, or the court? The contempt proceedings were initiated under the provisions of Section 2705.02, Revised Code (formerly Section 12137, General Code), for a disobedience of a lawful order of the court, and sentence was pronounced under Section 2705.05, Revised Code (formerly Sections 12141 and 12142, General Code).

This appeal is captioned, Virginia S. Beach, Plaintiff-appellee, v. John M. Beach, Jr., Defendant-appellant. Contempts of court are classed as being either civil or criminal. While it is possible to prosecute a criminal contempt in the name of the state, it is well established that a civil contempt need not be brought in the name of the state, but in the name of the party in the cause out of which it arose. In re Hannberger, 19 C. C., 651, 10 C. D., 561; Galley v. Galley, 13 C. C. (N. S.), 522, 23 C. D., 161; Hayes v. Hayes, 11 Ohio App., 10, 15; 11 Ohio Jurisprudence (2d), 148, Section 65; 12 American Jurisprudence, 433, Section 66; 17 Corpus Juris Secundum, 74, Section 62, subsection b.

Civil contempt is defined as that which exists in failing to do something ordered to be done by the court in a civil action for the benefit of the opposing party therein. 11 Ohio Jurisprudence (2d), 94, Section 6; 12 American Jurisprudence, 392, Section 6; 17 Corpus Juris Secundum, 8, Section 6. In 17 Corpus Juris Secundum, 7, Section 5, the distinction between criminal and civil contempt is stated as follows:

“The line of demarcation between acts constituting criminal and those constituting civil contempts is very indistinct. The confusion in attempts to classify civil and criminal con-tempts is due to the fact that there are contempts in which both elements appear. In general, contempts of court for which punishment is inflicted for the primary purpose of vindicating public authority are denominated criminal, while those in which the enforcement of civil rights and remedies is the ultimate object of the punishment are denominated civil contempts; whether or not a fine or imprisonment is imposed is not a distinguishing test.”

Supporting the same proposition, see State, ex rel. Maple, v. Hamilton, 19 C. C. (N. S.), 229, 235, 27 C. D., 147, affirmed without opinion, State, ex rel. Voorhees, v. Cassingham, 88 Ohio St., 603, 106 N. E., 1080; State, ex rel. Merrill, v. Moore, 83 Ohio App., 525, 82 N. E. (2d), 323. Proceedings for contempt to enforce a civil remedy and to protect the rights of parties litigant should be instituted by the aggrieved parties. State, ex rel. Maple, v. Hamilton, supra, at page 235; Hayes v. Hayes, supra, at page 14; In re Nevitt, 117 F., 448, 458, cited in Hayes v. Hayes. In the Nevitt case Judge Sanborn said, at page 459:

‘ ‘ The party in whose favor that judgment was rendered is the real party in interest in the proceedings.”

See, also, 12 American Jurisprudence, 392, Section 6; 17 Corpus Juris Secundum, 79, Section 63. Nonpayment of alimony falls within the provisions of Section 2705.02, Revised Code (formerly Section 12137, General Code), and is classed as a civil contempt. 9 Ohio Jurisprudence, 98, Section 53; 12 American Jurisprudence, 392, Section 6. The proceedings in contempt were properly instituted and correctly captioned. The wife for whose benefit the order was made was the aggrieved party and is the real party in interest. Therefore, we conclude that counsel for the appellee are acting as counsel for the wife and not the trial judge.

An order finding defendant guilty of contempt of court for failure to pay temporary alimony is reviewable on questions of law. Brady v. Brady, 47 Ohio Law Abs., 73, 69 N. E. (2d), 447; 2 Ohio Jurisprudence (2d), 663, at 665, Section 80.

We approach this matter from the viewpoint that the appeal pending, being from an order holding the appellant in contempt for failure to obey an order to pay temporary alimony, grows out of the principal cause of action for divorce and is, therefore, purely statutory in nature. The appeal here pending and the motion interposed in this court for allowance of expense money are incidental to the statutory action and fall within the purview of Section 3105.14, Revised Code, above quoted. See West v. West, 100 Ohio St., 33, 124 N. E., 888.

The word “appeal” as used in Section 11994, General Code (now Section 3105.14, Revised Code), has been construed to mean “appeal de novo,” as this was the meaning of the term when the statute was passed, which antedated the 1912 Ohio Constitution, which rendered nugatory that provision of the statute. Rockhold v. Rockhold, 11 Ohio Law Abs., 399 (1932); Riebel v. Riebel, 15 Ohio Law Abs., 254 (Court of Appeals for Franklin County, 1933); Dann v. Dann, 71 Ohio App., 110, 48 N. E. (2d), 140 (1942); Davis v. Davis, 41 Ohio Law Abs., 189, 57 N. E. (2d), 701 (Court of Appeals for Franklin County, 1943). See, also, Jelm v. Jelm, 155 Ohio St., 226, 237, 98 N. E. (2d), 401, 22 A. L. R. (2d), 1300. In the Davis case, this court followed the Bockhold case and its former ruling in the Biebel case. The headnote in the Davis case is as follows:

“Section 11994, General Code, authorizing temporary alimony and support during the pendency of an appeal is not applicable to an error proceeding since the Constitution of 1912, and the new procedural act does not change the rule and the Appellate Court does not have jurisdiction to grant temporary alimony in an error proceeding.”

Two cases are cited which take a contrary view. In the case of Calhoun v. Calhoun, 29 Ohio Law Abs., 670, decided by this Court of Appeals in 1939, the court held that the Court of Appeals may allow additional expense money for preparation of a transcript of the testimony and for attorney fees for the prosecution and perfecting of an appeal under the provisions of Section 11994, General Code. No authorities are cited in the opinion, and the court does not discuss the question raised in the Bockhold and Biebel cases. In 1949, the Court of Appeals for Mahoning County, in the case of Bryant v. Bryant, 56 Ohio Law Abs., 107, 91 N. E. (2d), 275, made a similar ruling, and cited the Calhoun case without comment. This Court of Appeals, which decided the Davis case in 1943, although not mentioning its former ruling in the Calhoun case, impliedly rejected this proposition of law and reaffirmed its former ruling in the Biebel case. In the absence of any legislative or constitutional change which may necessitate a different ruling, the principle of law in the Davis case controls.

In 1951, the Legislature recodified the laws on marriage and divorce (Amended Senate Bill No. 65, 124 Ohio Laws, 178), and Section 11994, General Code, being amended, was renumbered Section 8003-15, General Code. The amendment did not relate to the authority of the appellate court. However, it may be urged with much force that in passing the section as amended, the Legislature intended the word “appeal” to be given the meaning used in the Appellate Procedure Act. In 37 Ohio Jurisprudence, 594, Section 331, the text is as follows:

‘ ‘ The General Assembly, in enacting a statute, is assumed, or presumed, to have legislated with full knowledge and in the light of all statutory provisions concerning the subject-matter of the act, because the legislative mind, in the enactment of a statute, is directed to what has been enacted and exists as a part of the statutory law of the state on the same subject, or subjects related to it. It is therefore a fundamental rule of statutory construction that sections and acts in pari materia should be construed together as if they were a single statute. ’ ’

The test to be applied in determining whether sections are in pari materia is stated in 37 Ohio Jurisprudence, 599, Section 332, as follows:

“Statutes or sections which expressly refer to each other or which relate to the same person or thing or to the same class of persons or things or to the same subject or object may be regarded as in pari materia. Sections have been considered in pari materia which are parts of the same law or act or which were formerly parts of one section or of the same original statute. Although sections of the same chapter of the Code have been regarded as in pari materia, the fact that they are found in different chapters of the Code does not prevent them from being in pari materia. They may be in pan materia even though they contain no references to each other, whether enacted concurrently, or at the same session of the Legislature, or at different times.”

We would have no difficulty in holding that former Section 8003-15, General Code (now Section 3105.14, Revised Code), is in pari materia with Section 12223-1, General Code, and the related sections of the Appellate Procedure Act, which define “appeal” to mean all proceedings presented on review, as well as a retrial. This matter being presented on appeal on questions of law, the word “appeal” as used in Section 3105.14, Revised Code, would apply to this proceeding. This was the ruling of this court in Sciacca v. Sciacca, 69 Ohio Law Abs., 513, where the question of jurisdiction, which we later discuss, was not raised.

The recodification of the General Code, whereby Section 8003-15, General Code, became Section 3105.14, Revised Code, has no bearing on the question. Section 3105.14, Revised Code, is substantially similar to Section 8003-15, General Code. Furthermore, Section 1.24, Revised Code, known as the saving clause, provides that “it is the intent of the General Assembly not to change the law as heretofore expressed by the section or sections of the General Code in effect on the date of enactment of this act.” Consequently the same meaning given to the word “appeal” in Section 8003-15, General Code, must be given to the word “appeal” as used in Section 3105.14, Revised Code.

Assuming that the Legislature, in enacting Section 8003-15, General Code, intended that the word “appeal” as used in that section should apply to appeals on questions of law, which was taken in this case, may this court entertain jurisdiction to hear and determine the matter raised by the motion of appellee? We do not think so. The jurisdiction of the Court of Appeals is conferred by the Constitution (Section 6, Article IV) and may not be enlarged by the Legislature. Green v. Acacia Mutual Life Ins. Co., 156 Ohio St., 1, 100 N. E. (2d), 211; Hoffman v. Knollman, 135 Ohio St., 170, 20 N. E. (2d), 221; State v. Theisen, 91 Ohio App., 489, 490, 108 N. E. (2d), 854. The Supreme Court has decided that until there is legislative action, the appellate jurisdiction of the Courts of Appeals remains as it was prior to the amendment of Section 6, Article IV of the Ohio Constitution, effective January 1, 1945. Youngstown Municipal Ry. Co. v. City of Youngstown, 147 Ohio St., 221, 70 N. E. (2d), 649; State v. Edwards, 157 Ohio St., 175, 105 N. E. (2d), 259. Prior to the amendment, Section 6, Article IY of the Ohio Constitution, so far as it is pertinent here, provided:

“The Courts of Appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify, or reverse the judgments of the Courts of Common Pleas, superior courts and other courts of record within the district as may be provided by law

After the amendment this constitutional provision read:

“The Courts of Appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procedendo, and such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders of boards, commissions, officers, or tribunals, and of courts of record inferior to the court of appeals within the district * *

Prior to the amendment, the Constitution conferred on the Courts of Appeals “appellate jurisdiction in the trial of chancery cases.” This jurisdiction was on appeal from an order made in a chancery case; it did not confer jurisdiction in the Courts of Appeals to try de novo matters which are classified as purely statutory proceedings. In LeMaistre, Admr., v. Clark, 142 Ohio St., 1, 50 N. E. (2d), 331, it was held that “such appellate jurisdiction does not authorize such courts to conduct a trial on issues of fact unless such a trial has been had in the court of first instance.” The matter presented to this court raises an issue of fact which was not presented to the court below. In deciding the question presented, this court would be required to exercise original rather than appellate jurisdiction. This we may not do. LeMaistre, Admr., v. Clark, supra, page 4.

The appeal before us is on questions of law. We have jurisdiction on review only. The motion raises an issue of fact on which this court would be required to determine the facts on an appeal on questions of law. This court has no such power.

But it may be urged that because Section 8003-15, General Code, was passed since the constitutional amendment, the Legislature now has conferred such authority on the court as is contemplated by the ruling in the Youngstown and Green cases. This point raises a question as to the limits of legislative authority.

The pertinent part of the Constitution as amended provides that the Courts of Appeals shall have original jurisdiction in regard to the five writs, “and such jurisdiction as may be provided by law, ” which provision is limited by the words which immediately follow, to wit: “to review, affirm, modify, set aside, or reverse judgments,” etc. We find no authority in this constitutional grant of legislative power to enact a statute conferring on the Courts of Appeals original jurisdiction to conduct a hearing and determine questions of fact in an ancillary matter arising in connection with an appeal on questions of law. To do so would be to enlarge the jurisdiction of the Courts of Appeals. The Legislature has no such power. Green v. Acacia Mutual Life Ins. Co., supra. If the Legislature intended to confer such power in the enactment of Section 8003-15, General Code, that part of the section would be unconstitutional and void.

But it is contended that the Courts of Appeals have the inherent power to grant the relief asked. There is a wide diversity of opinion on this subject. In many jurisdictions the reviewing courts, independently of any statutory authority, have allowed temporary alimony for support and counsel fees for prosecution or defense of the appeal. It is held that such jurisdiction is an incident of its appellate jurisdiction; that it is not the exercise of an original jurisdiction, but is essential to the proper administration of justice in the exercise of appellate jurisdiction. See, 17 American Jurisprudence, 421, Section 517; 18 A. L. R., 1505, subdivision Va; 136 A. L. R., 502; 27 Corpus Juris Secundum, 887, Section 203 (2); and cases cited thereunder in support of both views. The authorities which hold that the court does not possess the inherent power to make an order in such matters ground their conclusion on the fact that only appellate jurisdiction is conferred; that the jurisdiction which is sought to invoke is original; that the court may only review the orders made below, and can not make a finding of facts; and that the allowance to be made, if any, lies within the jurisdiction of the trial court. Some of the courts point out that they may not exercise both original and appellate jurisdiction over the same subject matter in the same suit. In Ohio we find no reported opinion holding that the reviewing court has such inherent power.

Under Section 3105.14, Revised Code, expense money is classified .as temporary alimony. We cannot distinguish between temporary alimony for support and expense money for counsel fees, as was done in some of the cases cited in A. L. R.

The rationale of the Davis case, supra, and other cases in accord therewith, whieh have heretofore been cited, is in harmony with the latter view, and rules out the “inherent power” theory. We subscribe to the theory that such matters are purely statutory, and unless jurisdiction is conferred by statute within the constitutional limits, the Courts of Appeals in Ohio are without jurisdiction in such matters. Clearly, the Courts of Appeals of this state should not attempt to exercise jurisdiction on the theory of inherent power in a matter-on which the Constitution of the state does not confer on the Legislature the power to legislate.

Motion denied.

Miller, P. J., concurs.

Hornbeck, J., concurs in the judgment.

(Decided April 21, 1955.)

On The Merits.

Wiseman, J.

This is an appeal on questions of law from an order of the Common Pleas Court, Division of Domestic Relations, of Montgomery County, in an action for divorce, in which the court found the defendant guilty of contempt of court, and pronounced sentence for failure to comply with a former order of the court.

An order finding defendant guilty of contempt for failure to comply with the former order to pay $400 to counsel for plaintiff and sentencing defendant to pay a fine of $200 and be confined in jail for 10 days is a final order and reviewable. See, Brady v. Brady, 47 Ohio Law Abs., 73, 67 N. E. (2d), 447.

Section 3105.14, Revised Code, in part, provides: “On notice to the opposite party of the time and place of the application, the Court of Common Pleas, or a judge thereof in vacation, may grant alimony to either of the parties for his sustenance and expenses during the suit.”

The pertinent part of this section authorizes the court to: “Grant alimony to either of the parties for * * * expenses during the suit.” The term “expenses” properly includes attorney fees. Stuart v. Stuart, 144 Ohio St., 289, 58 N. E. (2d), 656; Keath v. Keath, 78 Ohio App., 517, 71 N. E. (2d), 520.

The record in this court is a transcript of a part of the docket and journal entries and a bill of exceptions. We do not have before us the petition of plaintiff or the answer of the defendant.

The record shows that on November 24, 1954, plaintiff filed a motion, which is not in the record, requesting an order for partial payment of counsel fees. On November 26, 1954, the court made an order, which is in the record, the pertinent part of which is as follows:

“The court orders the defendant, John M. Beach, Jr., to pay the sum of Four Hundred ($400) Dollars as and for attorney fees upon account to counsel for the plaintiff.
“It is further ordered that the same be paid at the office of James C. Baggott * *

This amount was not paid. On December 13, 1954, James C. Baggott, counsel for plaintiff, filed a motion for citation against the defendant to show cause why he should not be punished for contempt. This motion recited the former order and the nonpayment. A citation was issued on which the court took evidence. The pertinent part of the finding and order from which the appeal was taken is as follows:

“This day this cause came on to be heard upon a citation for contempt of court made and issued December 13, 1954, to the defendant John M. Beach, Jr., to show cause why he should not be punished for contempt of court for his failure to abide the order of the court entered November 26, 1954, to pay the sum of Four Hundred ($400) Dollars on account for plaintiff’s attorney fees. Upon hearing had and testimony taken by counsel for the parties hereto and by the court, it is the finding of the court that said defendant, John M. Beach, Jr., at the time of making the order and at all times since then has been financially able to comply with the order of the court but has willfully and without legal excuse failed and refused to abide by said order.”

The contention of the appellant that the order ran in favor of the attorneys for the plaintiff and not to the plaintiff herself, raises an interesting question under Section 3105.14, Revised Code, heretofore quoted. As the record comes to us, there is nothing in the motions or orders of the court indicating that the allowance was made to the plaintiff, or that it was allowed as temporary alimony. The money was ordered to be paid directly to counsel. In the absence of a showing that the order was made in favor of the plaintiff and as temporary alimony under Section 3105.14, Revised Code, the order made was without authority and invalid.

This court, in Riebel v. Riebel, 15 Ohio Law Abs., 233, held in the sixth paragraph of the headnotes as follows: “It is irregular for the court in a divorce action to make an order to pay counsel fees of the wife direct to counsel.” In Parker v. Parker, 28 Ohio Law Abs., 49, 56 N. E. (2d), 527, this court again, on a similar record, on page 52, said:

“The court can not award a sum to counsel direct to the exclusion of the litigant but of course may take into consideration counsel’s fees in making the award for expenses during the suit, and we are of the opinion that the amount so awarded to defendant’s counsel is without warrant and that the final entry should be so modified. ’ ’

In Keath v. Keath, supra, a similar question was presented to the Court of Appeals for Summit County. The court, in the second paragraph of the syllabus, said: “The term ‘expenses’ includes attorney fees, and an award of expenses for such fees must be made to a spouse as alimony and not directly to the attorney.” In that case, other questions were involved, but the court very definitely approved the above principle. See, also, Black v. Stewart, 28 C. C. (N. S.), 433, 30 C. D., 277. In 14 Ohio Jurisprudence, 456, Section 64, the author states that ‘ ‘ although the court may consider attorney fees in making an allowance pendente lite, such allowance must be made to the party, and cannot be made directly to the attorney.” We consider the above to be the true rule.

The order of November 26, 1954, was invalid. It follows that a contempt charge cannot be predicated thereon. Prejudicial error resulted in finding the defendant guilty of contempt in failing to comply with such invalid order.

The finding of the court that the defendant was financially able to comply with the order was based on the evidence that the defendant possessed a National Service Life Insurance policy, issued by the United States government, the cash surrender value of which was $3,200. It will be observed that the order of the court did not require the defendant to surrender the policy. The policy of insurance was not mentioned in the order. However, it appears to be conceded that this was the only property or assets possessed by the defendant from which be would be able to secure tbe money to pay counsel as ordered. Whether the court could legally require the defendant to surrender the National Service Life Insurance policy for the purpose of securing cash money out of which to pay counsel fees under the order need not be, and is not here, determined.

Judgment reversed and emise remanded.

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


author: Middleton, J.

text:
    Murray et al., d. b. a. Murray & Murray, Appellants, v. McCrystal, Judge, Appellee.
    (No. 690
    Decided July 15, 1955.)

      Messrs. Murray & Murray, for appellants.

      Mr. William E. Didelius, for appellee.
   Middleton, J.

This is an appeal from a judgment of the Probate Court of Erie County, dismissing plaintiffs’ petition for a declaratory judgment. The petition was dismissed on motion of the defendant to strike for the reason that the petition was a frivolous pleading. From that judgment, an appeal is taken to this court.

Plaintiffs set out in their petition for a declaratory judgment that they are attorneys at law duly admitted to practice in the state of Ohio and are now engaged in the practice of law in the city of Sandusky, Ohio; and that under date of September 23, 1953, they filed a cause of action in the Common Pleas Court of Erie County, Ohio, known as Fred A. Murphy v. Fred J. Soliday, and that on January 31, 1955, the matter came on for hearing in the Common Pleas Court before Judge James L. McCrystal.

Plaintiffs say that during the voir dire, and while Thomas Murray was conducting the voir dire, he made a statement to the jury, in substance, as follows:

“Ladies and gentlemen of the jury, I believe the facts in this case will reveal that Fred J. Soliday on the day in question, June 11, 1953, was associated with the American Insurance Company (or, the correct name may be, the American Associated Insurance Companies) and that he was attending a convention at Cedar Point which, I believe, was a convention being held by the United Commercial Travelers.”

Plaintiffs say further that there was an objection entered by counsel for the defendant, and a motion made for a mistrial, based upon the objection; that Judge McCrystal sustained the motion of the defendant (Soliday) and ordered a mistrial; that upon retrial their client will be faced with the same procedural question of whether it is error to make a statement to the jury relative to the occupation of the defendant in the manner and method in which it was made, and upon which the court ruled; that this and related questions are likely to occur again; and that it is to their interest as practicing lawyers and to the interest of other practicing lawyers that a determination of the following questions be made by this court:

1. Where the defendant is an insurance broker and counsel for the plaintiff has knowledge of this fact, is there any impropriety and, if there is any impropriety, is it improper to the extent that it constitutes prejudicial error, for counsel for the plaintiff, in the voir dire, to make a statement to the effect that the defendant is associated with a particular insurance company and has his office in a particular building which happens to be the office building of the insurance company?

2. If counsel for the plaintiff has knowledge that a defendant in any case is an insurance broker, is there any impropriety and, if there is any impropriety, is it improper to the extent that it constitutes prejudicial error, for counsel to tell the jury that said defendant on the day in question, being the date of the accident, was in attendance at an insurance convention, this being a fact?

3. If counsel for the plaintiff, having knowledge that the defendant is an insurance broker for a given insurance company and occupies an office in the office building of said insurance company in a given city, during the voir dire so states these facts to the jury, is the common pleas judge justified in publicly declaring this statement made by counsel as misconduct by giving to both the radio reporter and the newspaper reporter a statement that the conduct of one of counsel for the plaintiff, in referring to the defendant as associated with a particular insurance company, constituted misconduct?

4. If this court should find that the common pleas judge was correct in his finding that the statement by one of plaintiff’s counsel that the defendant was associated with an insurance company, such fact being true, constituted misconduct, would the common pleas judge be acting with proper decorum in advising both the newspaper and the radio reporter that the mistrial was declared “because of misconduct” of one of plaintiff’s counsel, naming him, and that they were to publish this fact strictly in the context as given by the court?

5. If counsel for the plaintiff, having knowledge of the fact that a given defendant is an insurance broker and associated with, a certain insurance company and has his address at the building of said insurance company, so states to the jury, and if said conduct constitutes prejudicial error, does the common pleas judge who presides in said case have authority to or does he act with proper decorum and dignity when, before the determination of a mistrial is properly journalized or a hearing had upon a journal entry covering such fact situation, he gives to the newspaper and the radio station instructions to carry over the air and in the newspaper the fact that one of plaintiff’s counsel was guilty of misconduct and that they were to publish this fact strictly in the context as given by the court?

Plaintiffs then state that a determination of one or more of the questions raised herein, by way of declaratory judgment, would terminate the uncertainty of Fred Murphy’s rights and the rights of any and all other litigants that may arise under like or similar circumstances; and that it, likewise, would affect the professional rights of any and all lawyers actively engaged in the practice of law.

. To plaintiffs’ petition, defendant filed his motion to strike the petition from the files on the ground that it was frivolous and a sham. On consideration thereof, the Probate Court found that the petition was frivolous and defendant’s motion to strike the same from the files was sustained.

Neither of the parties to the action in the Common Pleas Court are parties to the present action. This action is brought by counsel for plaintiff in the action in the Common Pleas Court, against the trial judge.

For their assignments of error, the plaintiffs claim that the judgment of the court is contrary to law and contrary to fact.

This appeal is on questions of law, and at the outset it must be borne in mind that the only question presented by this appeal is whether the action of the Probate Court in dismissing the petition was erroneous.

On this appeal we are not concerned with whether the defendant, as a trial judge in the case of Fred A. Murphy v. Fred J. Soliday, supra, committed error in sustaining the motion of the defendant for a mistrial, or whether remarks made to representatives of the press and radio at the time of the trial were proper or improper. These questions are not here for decision. We are, in this cause, concerned with whether the petition for a declaratory judgment was properly filed in the Probate Court; whether the Probate Court has jurisdcition of the cause ; whether the matters set out in the petition are subject to a declaratory judgment; and whether the Probate Court committed error in sustaining the motion of the defendant to strike the petition from the files as a frivolous pleading.

Section 2721.02, Revised Code, reads:

“Courts of record may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding is open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect. Such declaration has the effect of a final judgment or decree.”

Section 2721.06, Revised Code, reads:

“Sections 2721.03 to 2721.05, inclusive, of the Revised Code do not limit or restrict the exercise of the general powers conferred in Section 2721.02 of the Revised Code in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty. ’ ’

Section 2721.07, Revised Code, reads:

“Courts of record may refuse to render or enter a declaratory judgment or decree when such judgment or decree would not terminate the uncertainty or controversy giving rise to the proceeding.”

Section 2721.12, Revised Code, reads:

“When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration. No declaration shall prejudice the rights of persons not parties to the proceeding. In any proceeding which involves the validity of a municipal ordinance or franchise, the municipal corporation shall be made a party and shall be heard, and if any statute or the ordinance or franchise is alleged to be unconstitutional, the Attorney General shall also be served with a copy of the proceeding and shall be heard.”

The purpose of the Declaratory Judgments Act is to provide an immediate remedy for the solution of legal rights where a cause of action has not yet accrued or where such legal rights exist but must await some act by others or the passing of time before the right of action can be asserted.

By the averments of their petition, plaintiffs ask the Probate Court to pass upon the ruling of the Common Pleas Court upon a voir dire examination of a jury and, by declaration, to pass upon the correctness of the judge’s ruling on a motion to declare a mistrial. Thus, plaintiffs ask the Probate Court to prescribe rules of procedure and to adjudicate questions of law which would bind the trial judge upon a subsequent trial of the action.

It is inconceivable to hold that a Probate Court, by a declaratory judgment, can prescribe such rules of procedure and regulate the actions of a Common Pleas Court in its rulings on questions of law during the trial of another cause then on trial in such court. The judge presiding at the trial in the Common Pleas Court must determine all such questions when they arise, and the Probate Court is without jurisdiction to control the future acts of such trial judge.

Questions numbered 3, 4 and 5, which the Probate Court is asked to answer, go to the propriety of the conduct of the common pleas judge, after declaring a mistrial, in advising a newspaper and a radio reporter that a mistrial was declared because of the misconduct of counsel and, in so doing, whether the common pleas judge was acting with proper decorum and dignity.

It is apparent that these questions do not set forth any legal controversy or the violation or threat of violation of any legal right. Plaintiffs attempt to secure from the Probate Court an expression or opinion as to the decorum and dignity to be observed by the common pleas judge, whoever that judge might be, upon any future hearing of the cause in the Common Pleas Court. For a court to hold that such questions present matters subject to determination in an action for declaratory judgment would be to reach the height of judicial absurdity. A declaration by a court upon the questions presented would not terminate the controversy or remove any uncertainty, as set forth in Section 2721.06, Revised Code.

Considering the averments of the petition in the most favorable light to plaintiffs, the petition fails to set forth a semblance of a cause of action. The questions presented therein are academic and present no justiciable controversy. There is nothing in the petition to justify a judicial determination, by way of a declaratory judgment, of the matters therein set out.

The appellants argue that the court was in error in sustaining defendant’s motion to strike the petition from the files on the ground that it is frivolous.' They urge that the proper way to attack a petition as to substance is by demurrer and that failure of a petition to state a cause of action cannot be reached by a motion to strike.

“It has always been held that by virtue of its inherent power, a court has authority by summary means to prevent an abuse of its processes and peremptorily to dispose of causes of action or defenses that are sham, frivolous, or wholly vexatious. * * * The power to strike out a pleading as sham or frivolous will not, however, be exercised unless the pleading is clearly and palpably subject to the objection. * * * To meet the charge of frivolousness or irrelevancy, the pleading must be of that character in its entire scope and bearing, and not merely through a formal defect that might be cured by amendment.” 41 American Jurisprudence, 527, Section 347.

“A motion lies to strike a pleading or separate part thereof on the ground that it is entirely frivolous or wholly irrelevant, especially where it cannot be amended so as to make the facts therein stated in any wise germane to the controversy; but a pleading cannot be stricken as frivolous or irrelevant unless it clearly appears to be so.” 71 Corpus Juris Secundum, Pleading, 941, Section 459.

“A motion to strike a pleading on the ground that it is frivolous is very similar to a demurrer. In practice motions of this character are usually overruled if there is a semblance of the requisite allegations or averments. * * * If a pleading is of such a character that there is not a semblance of a cause of action or defense stated, the trial court in its discretion may sustain the motion rather than relegate the party to a similar remedy by demurrer. Whether the question should be raised by motion or demurrer is largely within the discretion of the trial court. Each method goes to the same ultimate question.” Golay v. Zollinger, 16 Ohio Law Abs., 387, at page 388.

In the instant case we have no difficulty in determining that the petition completely fails to state a cause of action subject to a declaratory judgment. The petition is not susceptible of amendment which would constitute a cause of action, and the Probate Court was justified in sustaining the motion to strike the petition from the files as 'frivolous.

We find no error in the ruling of the court, and its judgment is affirmed.

Judgment affirmed.

Quatman, P. J., and Younger, J., concur.

Quatman, P. J., Middleton and Younger, JJ., of the Third Appellate District, sitting by designation in the Sixth Appellate District.


author: Fess, P. J.

text:
    The State, ex rel. Vail, Appellee, v. Salsbury, Appellant.
    (No. 4823
    Decided January 18, 1955.)

      Mr. George S. Bradley, for appellee.

      Mr. Foster E. King, for appellant.
   Fess, P. J.

This cause is now before this court upon a motion to dismiss the appeal from a judgment of the Court of Common Pleas upon the ground that the notice of appeal was prematurely filed.

On September 10, 1954, pursuant to a verdict of a jury, a judgment was entered finding the defendant to be the reputed father of twin children born of the complainant on March 14, 1952. With regard to fixing the amount of expenses, the cause was continued for further hearing until September 27,1954. On September 18, a motion for new trial was filed. On September 27, the motion for new trial was overruled. On September 27, a further entry was filed re-adjudging the defendant to be the reputed father of the children and also making provision for expenses and support. On September 29, this court having released the defendant pursuant to a writ of habeas corpus, a further judgment entry was filed modifying the entry of September 27. On October 1, defendant’s motion of September 18 for a new trial was refiled. On the same date, notice of appeal from the verdict of the jury and judgment filed on September 29, 1954, was filed. Although not appearing in the record, we are advised by counsel that the refiled motion for a new trial was overruled on October 10. No further notice of appeal has been filed.

It seems to be settled that a notice of appeal which is filed pending the determination of a motion for new trial is premature and does not confer jurisdiction upon the Court of Appeals. Kuhn v. Industrial Commission, 63 Ohio App., 279, 26 N. E. (2d), 592; Dawn v. Banks, 80 Ohio App., 511, 74 N. E. (2d), 858; Hurt v. Charles J. Rogers Transportation Co., 160 Ohio St., 70, 113 N. E. (2d), 489.

In the latter case the Court of Appeals dismissed the appeal upon the ground that pending the determination of a motion for new trial an order overruling a motion for judgment notwithstanding the verdict is not a final order. However, the Supreme Court, in affirming the dismissal, disagreed with the grounds upon which the appeal was dismissed by the Court of Appeals and held that where a motion for new trial is filed an appeal from a ruling on a motion for a directed verdict or a motion for judgment notwithstanding the verdict, prior to the disposition of the motion for new trial, is, by reason of Section 12223-7, General Code (Section 2505.07, Revised Code), premature and the appellate court may sua sponte or upon motion dismiss such appeal.

Since the announcement of the Hurt case, Section 2505.07, Revised Code, has been amended, effective October 27, 1953, and now specifically provides:

“When a motion for a new trial or a motion for judgment under Section 2323.18 of the' Revised Code is filed by either party within the time provided by Sections 2321.19 and 2323.181 of the Revised Code, respectively, then the time of perfecting an appeal shall not begin to run, and an appeal shall not be taken, until the entry of the order overruling or sustaining the motion for judgment under Section 2323.18 of the Revised Code, or the motion for a new trial, if only one of such motions shall have been filed, or overruling or sustaining the last of such motions decided, if motions of both kinds shall have been filed.” (Emphasis added.)

It is, therefore, clear that a notice of appeal filed pending a motion for new trial does not confer jurisdiction upon the Court of Appeals to entertain the appeal, both under the decision of the Supreme Court and the statute. However, in the instant case, it will be noted that a judgment affecting a substantial right of the defendant was entered September 10, 1954. On September 18, a motion for new trial was filed, which was overruled on September 27. The notice of appeal was filed October 1, designating the judgment entered September 29. Inasmuch as the motion for new trial had been overruled on September 27, a notice of appeal from the judgment entered September 10 was proper.

The Appellate Procedure Act has been uniformly liberally construed to afford a litigant the right to an appeal even to the extent of amending his notice of appeal. Caswell v. Lermann, 85 Ohio App., 200, 88 N. E. (2d), 405. Leave will therefore be granted the appellant to amend his notice of appeal to designate the judgment of September 19, 1954, as the judgment from which the appeal in the instant case is taken, and in such event the motion to dismiss the appeal will be overruled.

Judgment accordingly.

Conn and Deeds, JJ., concur.

      It is respectfully submitted that in reaching its conclusion the Supreme Court overlooked'the fact that the overruling of a motion for new trial does not constitute a judgment from which an appeal is taken, and disregarded the fact that Section 12223-7, General Code, provided that appeals should be perfected within twenty days, but that when a motion for new trial is filed within ten days after a journal entry of a final order, then the time for perfecting the appeal should not begin to run until the entry of the order overruling the motion for new trial. Therefore, the filing of a notice of appeal after judgment but before the overruling of a motion for new trial would be within the time provided by the section, and in such event not ineffective as having been prematurely filed.


author: Wiseman, P. J.

text:
    Leibrock, Appellee, v. Briggs, Appellant. Worthington, Appellee, v. Briggs, Appellant.
    (Nos. 5150 and 5151
    Decided February 2, 1955.)

      Messrs. Chamblin & Price, for appellees.

      Mr. L. P. Henderson, for appellant.
   Wiseman, P. J.

These two appeals are on questions of law from judgments of the Municipal Court of Columbus overruling demurrers to the petitions in the two actions, the defendant electing not to plead further and suffering judgment to be entered against him in both actions. Inasmuch as identical pleadings raised the same question in each case, the two cases will be considered as one.

Plaintiff in her petition seeks to recover damages for personal injuries suffered as a result of an automobile collision which occurred on May 8, 1952, in Franklin County, Ohio.

The petition was filed and summons issued on May 10,1954. The summons was promptly served. The question raised by the demurrer was whether the action was barred by the statute of limitations, the defendant contending that the two-year period (Section 2305.10, Revised Code) expired on May 7, 1954.

An action is commenced on the date the summons, which is afterwards served, is issued. Section 2305.17, Revised Code. Time is computed by excluding the first day and including the last, except that the last day shall be excluded if it be Sunday. Section 1.14, Revised Code. Fractions of days are not considered in computations of time. The day on which an act is done must be wholly included or excluded. 34 American Jurisprudence, 206, Section 252. By this computation, the two-year statutory period expired on May 8, 1954, which was on a Saturday. Saturday afternoon only is made a legal holiday by Section 5.30, Revised Code. Plaintiff would have been required to file the petition and issue summons on or before Saturday, May 8, 1954. Upon failure to do so, the action would be barred. But plaintiff contends that she was prevented from filing her action on May 8,1954, due to the fact that the court was closed on Saturday, May 8, 1954, in compliance with the terms of a city closing ordinance which was passed by the City Council of the City of Columbus, which provided that certain offices, including the Municipal Court, should be closed all day on Saturday. In reviewing the judgment of the Municipal Court, we take judicial notice of the ordinance of the city of Columbus. Jackson v. Copelan, 50 Ohio App., 414, 198 N. E., 596; City of Dayton v. DeBrosse, 62 Ohio App., 232, 23 N. E. (2d), 647; Bonbright v. Biller, 67 Ohio App., 421, 36 N. E. (2d), 173.

Returning to a consideration of Section 1.14, Revised Code, it will be observed that the statute provides that the last day shall be excluded if it be Sunday. It does not provide “Sunday or legal holiday” as contended by appellee. Whether the city ordinance made Saturday morning a legal holiday in the same manner as the statute makes Saturday afternoon a legal holiday is questionable. We are inclined to the view that Saturday morning, under the closing ordinance, was not a legal holiday. Assuming that Saturday was a legal holiday, or should be given the same legal effect, there is reliable authority, which we choose to follow, to the effect that with the exception of Labor Day, which is considered the first day of the week (Section 5.21, Revised Code), no other legal holiday has the same legal significance as Sunday. An analogous situation arose in King v. Paylor, 69 Ohio App., 193, 43 N. E. (2d), 313. In that case counsel for the appellant went to the Hamilton County courthouse on Lincoln’s birthday (February 12th) with the intention of filing a notice of appeal. By custom the building was closed as usual on that day, but the attorney secured admittance and left his notice of appeal in the clerk’s office, with a note that it was being filed on that day. A deputy found the pleading the next day and stamped and filed it on February 13th. The twentieth day for filing the notice was the 12th. The court held that Lincoln’s birthday is a legal holiday in Ohio for the purposes of the Negotiable Instrument Act, but not for other purposes, and that such filing was not a timely one within the provisions of the Appellate Procedure Act. On page 195, the court said :

“While Lincoln’s birthday is made a legal holiday by Section 8301, General Code, as that phrase is used in the Negotiable Instruments Act, it has not been made a holiday for all purposes, or for the purpose of procedure or the computation of time in which a procedural act should be done.”

In Cincinnati Traction Co. v. Krauss, 28 Ohio App., 205, 161 N. E., 563, the court, on page 207, recognizes the general rule that “holidays are not to be considered as Sunday.” See, also, Norman v. State, 109 Ohio St., 213, 227,142 N. E., 234, certiorari denied, 264 U. S., 595, 68 L. Ed., 867, 44 S. Ct., 453.

Under Section 1.14, Revised Code, the only extender granted is when the last day falls on Sunday. When the last day falls on a day when the court is closed by virtue of a city closing ordinance, no extension of time is granted. It follows that the action was not brought within two years after the cause of action accrued. The demurrer should have been sustained.

Judgment reversed and cause remanded.

Miller and Hornbeck, JJ., concur.