text:
    Colley et al., Appellants, v. Village of Englewood et al., Appellees.
    (No. 1887
    — Decided January 3, 1947.)

      Mr. Irvin Carl Delscamp, for appellants.

      Mr. Webb R. Ciarle, for appellees.
   Miller, J.

This is an appeal on questions of law and fact from a decree of the Court of Common Pleas of Montgomery county. The plaintiff brings this action on behalf of himself and other owners of real property in the village of Englewood, who are similarly situated, to enjoin the village of Englewood from certifying any charges or further charges of rent against nonusers of its sewerage system whose real property is not served by connections to the system. The action seeks further to enjoin the county auditor and county treasurer of Montgomery county from collecting and enforcing the collections of the sewer charges from nonusers.

The village of Englewood, by ordinance No. 114, passed on the 7th day of January 1941, provided in Section 9 of the ordinance the following:

“Effective on and after July 1st, 1941, all properties within the corporation limits of the village, of Englewood, Ohio, accessible to sewer shall pay sewer rental charges whether the properties are users or nonusers of the sewer system.”

The record discloses that the plaintiff, William E. Colley, and others in the village of Englewood, Ohio, had sewerage facilities without the use of the sewer system and have not connected up with it. The plaintiff's system of sewage disposal was by means of a cesspool which was constructed prior to the sewerage system. The record discloses further that ordinance No. 96 of the village of Englewood prohibits the establishment or maintenance of privies, cesspools, private sewers, etc.

Resolution No. 52 provides for the shutting off of water service to users delinquent in the sewer rental.

The plaintiff is relying upon Section 3891-1, General Code, which provides:

“ * * * may by ordinance establish just and equitable rates or charges of rents to be paid to such * * * village, for the use of such sewerage, * :>i * by every person * * whose premises are served by a connection to-such sewerage.”

It is the contention of the defendants that a municipal corporation derives its authority 'to construct, maintain and operate a public utility under Section 4, Article XVIII of the Constitution of Ohio, which provides:

“Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for any such product or service. The acquisition of any such public utility may be by condemnation or otherwise, and a municipality may acquire thereby the use of, or full title to, the property and franchise of any company or person supplying to the municipality or its inhabitants the service or product of any such utility.”

Our Supreme Court in the case of Board of Education v. City of Columbus, 118 Ohio St., 295, 160 N. E., 902, and also more recently in the case of Pfau v. City of Cincinnati, 142 Ohio St., 101, 50 N. E. (2d), 172, held that the provisions of Section 4, Article XVIII of the Constitution of Ohio, apply to the construction of a public utility by a municipality, are self-executing, and the powers therein enumerated are not subject to restriction by the General Assembly. We are, therefore, of the opinion that Section 3891-1, General Code, is not exclusive; that since the defendant village had the right, under the section of the Constitution enumerated above, to acquire the sewerage system, it had also the right to provide for the payment for the same by assessment against those enjoying its benefits, providing the assessment is equitable, fair and reasonable. The question of a sanitary sewage disposal system as against individual cesspools from the standpoint of public health is no longer a debatable one. The plaintiff Colley received a benefit from the system and it was admitted by his counsel in oral argument that it appreciated the value of bis property.

Counsel for the plaintiffs has referred to the case of Thompson v. Green, 28 O. O., 99, 12 Ohio Supp., 1, which we do not believe is similar to this case. The subject of the action was the right of the city of Columbus to make a charge against property for the removal'of garbage and rubbish. The court held that no charge could be made against persons who did not use the service. The trial court in the case at bar held, and we think properly so, that a sewage disposal system is a capital expenditure serving the entire community, which is true whether the property owners have an individual connection; that it would not be practical to install such a system for only those who cared to tap into it, and exclude others who did not care to make such a connection; that a garbage or rubbish removal, which consists of sending a truck around over the city, renders a service only to those who use it; and every property owner in the village of Englewood has a responsibility toward the public health of his community and since this can best be served by the sewage disposal system instead of individual cesspools, as long as the rates are fair, reasonable and indiscriminatory, the village has the right to make the charges set forth in ordinance No. 114.

We have examined all the other cases cited by the plaintiffs and find that the facts in those cases are not similar to those in the case at bar and are, therefore, not applicable. The case of Pfau v. City of Cincinnati, supra, is applicable and the legal principles therein announced are controlling.

We are, therefore, of the opinion that since the General Assembly had no power to restrict this defendant village in the manner of the payments for this sewage system so long as the charge is not discriminatory but alike to all citizens or property owners along the sewerage system, Section 9 of ordinance No. 114 of the village of Englewood is a valid regulation, and the cause is remanded.

The plaintiffs’ petition will, therefore, be dismissed and the decree rendered for the defendants.

- Decree for defendants.

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


source: Caselaw Access Project

author: Wiseman, P. J.

license: Public Domain

text:
    The State of Ohio, Appellee, v. Trimmer, Appellant.
    (No. 4007
    — Decided June 13, 1947.)

      Mr. Ralph J. Bartlett, prosecuting attorney, and Mr.. William G. Bryant, for appellee.

      Mr..B. N. Murray, for appellant.
   Wiseman, P. J.

This cause is submitted on motion of plaintiff, appellee herein, to dismiss the appeal and to affirm the judgment of the trial court on five separate grounds.

The defendant, appellant herein, was charged with, tried for and found guilty of contributing toward the delinquency of a minor, by the Court of Common Pleas, Division of Domestic Relations, Franklin county, Ohio. The case was tried on January 28, 1947, on which date the trial judge signed and filed a journal entry in which he found the defendant guilty of the offense charged, imposed a fine of $25 and costs, which was suspended on condition the defendant refrain from taking his minor grandson into beer parlors. On January 30, 1947, the trial judge signed and filed a second journal entry in which he found from the evidence that the defendant was not intoxicated, but that the defendant did contribute toward the delinquency of the minor. The notice of appeal was filed on February 28, 1947, which was more than 30 days after the sentence and judgment pronounced by the court, under date of January 28, 1947.

Plaintiff moves the court to dismiss the appeal on the ground that the notice pf appeal was not filed within 30 days after sentence and judgment, as required by Section 13459-4, General Code, which provides :

“Such appeal, unless otherwise provided, may be filed as a matter of right within thirty days after sentence and judgment. After thirty days from such sentence and judgment such appeal may be filed only by leave of the court or two of the judges thereof.”

Leave of court to appeal was neither asked for nor obtained. Under this section, an appeal may be filed as a matter of right ‘ ‘ within thirty days after sentence and judgment.” If the time within which the appeal could be taken dates from the order made on January 30, 1947, the appeal was filed within time; if from the order made on January 28, 1947, the appeal was not filed within time. On January 28, 1947, the court had tried the defendant without the intervention of a jury. At the close of the case the trial judge could, and did, pronounce sentence and judgment. The entry which embodied the sentence and judgment -was complete, legal in form, and journalized as the sentence and judgment of the court. No motion for new trial, or to vacate the sentence and judgment, was filed. Two days later a second entry was filed, more elaborate than the first entry, in which the court pronounced sentence and judgment, which varied only slightly from the sentence and judgment in the first order. No explanation is given for filing two entries, or for the second sentence and judgment. The order made under date of January 28, 1947, was never vacated. It still stands as the sentence and judgment of the trial court'. Until that order was vacated or set aside the court was without authority to again pronounce sentence and judgment. ■ The court had exhausted its jurisdiction and the second order was a nullity. Hence, the appeal was not filed within time, since 31 days elapsed after the sentence and judgment. The motion to dismiss will be sustained on this ground.

In the second, third ajicl fourth branches of the motion the plaintiff moves to dismiss the appeal on the following grounds: That no brief or assignments of error were filed at the time of filing the transcript of the docket and journal entries; that no brief has ever been filed; and that no bill of exceptions has been filed and the errors claimed may not be considered in the absence of a bill. The record shows that no brief has ever been filed, that the assignments of error, which were filed separately, were not filed with the transcript of the docket and journal entries, but 20 days later; and that no bill of exceptions has been filed, and, upon examination of the assignments of error, the court finds that such errors may not be considered in the absence of a bill of exceptions. The defendant has failed to comply with the provisions of Section 13459-3, General Code, which are mandatory. State v. Jarcho, 65 Ohio App., 417, 30 N. E. (2d), 444. 'The motion to dismiss will be sustained in the second, third and fourth branches.

Finally, the plaintiff moves to dismiss the appeal on the ground that the defendant has not substantially complied with the provisions of Section 13459-5, General Code, in that the notice of appeal fails to give the date or character of the judgment appealed from, or a description of the judgment, so as to identify it. Under the provisions of Section 13459-5, General Code, the notice of appeal ‘ ‘ shall contain a description of the judgment as to identify it.” In the case at bar the notice of appeal fails to mention any judgment. It simply states that the defendant, “files this his notice of appeal herein, a copy of which is filed in the Court of Appeals. ’’’

In view of the opinion of the Supreme Court in Mosey v. Hiestand, Trustee, 138 Ohio St., 249, 34 N. E. (2d), 210, we would not be justified in dismissing the appeal on this ground. See, also, Kline v. Green, 25 Ohio Law Abs., 240 (opinion by Second Appellate District), in which it had before it the question of whether the notice of appeal complied with the provisions of Section 12223-5, General Code. The court held that failure to specifically designate the order, judgment and decree appealed from did not furnish a sufficient ground for dismissing the appeal.

This branch of the motion will be overruled. An entry may be drawn accordingly.

Judgment accordingly.

Miller and Hornbeck, JJ., concur.


author: Jackson, P. J.

text:
    Robnolte et al., Appellees, v. Kohart, Appellant.
    (No. 95
    Decided April 30, 1947.)

      Mr. Wilmer D'. Rekeweg, for appellees.

      Mr. John F. DeMuth, for appellant.
   Jackson, P. J.

The plaintiffs, appellees in this court, who are husband and wife, are tenants in common of a parcel of real estate in Paulding county, Ohio, upon which premises is located a dwelling house.

Plaintiffs allege that on the 3rd day of June, 1945, the dwelling house, but no part of the land, was sold to the defendant, appellant herein, for the sum of $500, which purchase price was paid for in full by a check in favor of the plaintiff M. A. Eobnolte. The check was cashed in due course.

It is further alleged that the house was to be removed from the real estate within a year; that on the 29th day of August, 1946, which was more than a year after the making of the contract, the defendant entered upon the premises, tore down two chimneys, cut and broke the foundation of'the dwelling house; and that in July 1946, plaintiffs tendered a return of the payment of the $500 to the defendant and informed the defendant that the sale or contract was cancelled, due to the then nonperformance of the condition that the house was to be removed within a year from the date of the sale.of the dwelling house. Defendant refused to accept the return of the $500 and insisted upon the contract being fulfilled.

In the trial before the Common Pleas Court a temporary injunction was granted by the court, which was made permanent, no damages allowed to either party, each party was required to pay their owrn costs, and the $500 was ordered to be returned to the defendant.

The action in this court is an appeal on questions of law and fact from the judgment of the,. Common Pleas Court, and the cause was submitted to this court on the evidence adduced in the Common Pleas Court, as shown by the bill of exceptions. Whereupon this court heard the case de novo in accordance with the procedure prescribed by the statutes and the rules of this court.

In the trial of a case on an appeal from a lower court on questions of law and fact there is no requirement for an assignment of errors, and no briefs are required prior to the date of the trial. In such an appeal the appellant does not claim tó base his appeal on prejudicial errors committed in the court below, but bases his appeal on a trial de novo to which he is eiititled under the law.

The facts do not leave much in dispute and are substantially as follows:

On June 3, 1945, the, plaintiff M. A. Robnolte sold a dwelling house on a farm belonging to himself and his wife Muriel, to the defendant, Frank Kohart, for $500, and such sum was immediately paid. The insurance on the dwelling house was immediately transferred from the plaintiffs to the defendant. For a short period of time after the sale a tenant of the plaintiffs remained in the house at plaintiffs’ request, and a short time later the son-in-law of the plaintiffs, with the consent of the defendant and the acquiescence of the plaintiffs, moved into the house. It is disclosed that the son-in-law was a soldier who had returned from the war after the sale and needed a place for himself and family in which to reside. Meanwhile, the defendant had purchased a piece of ground and had installed a foundation, together with certain arrangements of pipes and otherwise for the installation of the utilities. Numerous efforts were made by the defendant to find a house mover who would change the location of the dwelling house from the premises of the plaintiffs to the land of the defendant.

In July 1946, the plaintiffs notified the defendant that they were cancelling the contract, due to the nonperformance of the contract within a year, and tendered a return of the $500 which was not accepted.

On or about August 30, 1946, the defendant entered-upon the premises of the plaintiffs and made ready to remove-the building by tearing down the chimneys and knocking out several pieces of the foundation under the house for the purpose of putting jacks or rollers thereunder. Whereupon suit was brought for an injunction and damages.

One of the disputed facts is when the house should be removed from the land of the plaintiffs. Plaintiffs insist the contract was definite that the house must be removed within one year from the date of the sale. Defendant asserts that the house was to be removed as soon as he could obtain a house mover to accomplish the same, and that he was hindered in the removal by the occupancy of the house by a tenant of the plaintiffs and the family of the son-in-law of the plaintiffs.

Muriel Robnolte, one of the plaintiffs, participated in the negotiation for the sale of the house and expressed herself as being satisfied with the transaction, with full authority to M. A. Robnolte to deal for her, so that any question of a proper sale by the tenants in common is completely eliminated.

As a reason or reasons for cancelling the contract and instituting the action for injunction and damages, plaintiffs rely upon Sections 8620 and 8621, General Code.

In our opinion the .equities of the case are with the defendant.

A parol contract susceptible of being performed within a year and not containing a provision setting the time of performance beyond a year is not within the statute. And this is so even though such contract is not likely to be performed within a year.

A contract that is capable of being performed within a year but which may or may not be performed within that time is not within the statute. Quirk v. Bank of Commerce & Tr. Co., 244 F., 682; Jones v. Pouch, 41 Ohio St., 146; Randall v. Turner, 17 Ohio St., 262.

It was the factual and exclusive possession of the house which was surrendered to the appellant which made the parol agreement effectual to take the contract out of the statute.

The statute of frauds applies only to contracts in which it is apparent that it was the understanding of the parties that the contract was not to be performed within a year from the time it was made and the fact that it may not be performed within the time does-not make it void. 49 American Jurisprudence, 384, Statute of Frauds, Section 23.

Only oral agreements which cannot be performed within a year are invalid under the provisions of the statute of frauds regarding contracts not to be performed within a year. It is the accepted rule that to bring a contract within the operation of this provision of the statute there must be an express and specific agreement not to be performed within such period, for if there is a possibility of performance within a year, the agreement is not within the statute;

Even an oral promise which may not be performed within a year and which is not in fact so performed still does not come within the meaning of the ban of the statute if full performance may be had within that time. 49 American Jurisprudence, 385, Statute of Frauds, Section 25.

Contracts “not to be performed within one year” include only agreements which by a fair and reasonable interpretation of the terms used by the parties and in view of all the circumstances existing at the time do not admit of performance, according to the language and intention, within a year from the time of the making of the contract. 19 Ohio Jurisprudence, 637, Statute of Frauds, Section 115. /

Agreements for the sale of buildings already erected upon land rest in part, if not altogether, upon the individual facts. Courts have consistently held that the sale of houses, buildings, etc., to be removed from the premises does not involve a contract within the statute of frauds, because the buildings become personal property by intention of the parties as soon as the sale is made, for the reason that the sale itself operates as a severance from the land, which mates the agreement collateral to the land and passes no interest therein. It has been emphasized frequently by the courts that if the agreement of the parties contemplated an outfight severance from the land, the agreement itself, in purview of the statute of frauds, was as effective as a physical severance. 49 American Jurisprudence, 499, Statute of Frauds, Section 163.

When the parties in interest agree that they may sever and remove from the realty, buildings thereon, such buildings are held and treated as personalty. 19 Ohio Jurisprudence, 585, Statute of Frauds, Section 46.

This is so for the reason that the title to the land is in no wise involved, nor is any interest or estate therein, and the statute of frauds will not avail. Nonamaker v. Amos, 73 Ohio St., 163, 76 N. E., 949, 112 Am. St. Rep., 708, 4 L. R. A. (N. S.), 980; Long v. White, 42 Ohio St., 59.

In arriving at the distinction between real estate and personalty as applied to a building affixed to real estate on a foundation, and the applicability of the statute of frauds, it is said that things attached to or forming part of the realty, which are agreed to be severed therefrom before sale or promptly after the formation of the contract, are personalty or goods and include, among other things, buildings thereon. 1 Restatement of Law of Contracts, 268, Section 200.

In view of the foregoing, we find on the issues in favor of the defendant, dissolve the permanent injunction heretofore granted, dismiss the amended petition of the plaintiffs, and assess the costs against the plaintiffs.

Decree accordingly.

Guernsey and Middleton, JJ., concur.


author: By the Court.

text:
    Ransom, Appellant, v. Feeney, Appellee.

      (No. 336
    Decided January 24, 1947.)

      Messrs. Hanna & Middleton and Mr. James Donovan, for appellant.

      Mr. Otto W. Hess and Mr. George A. Meelcison, for appellee.
   By the Court.

This is an appeal on questions of law from the Court of Common Pleas of Henry county, in an action wherein the appellant, George E. Ransom, was plaintiff, and the appellee, Leonard Feeney, was defendant.

The action is one for damages for personal injuries sustained by the plaintiff in a collision between an automobile in which the pilaintiff was riding as a guest passenger, and ai! automobile owned and operated by the defendant.

The case was tried to a jury which returned a verdict in favor of the defendant “no cause of action. ’’ Motion for new trial was duly filed by the plaintiff and was overruled by the court, and judgment in favor of the defendant was then duly entered on the verdict. That is the judgment from which this appeal is taken.

The collision occurred on December 12,1943, at about ten o ’clock p. m., at which time the plaintiff was riding in an automobile driven by one Clyde A. Puse in an easterly direction on U. S. route 24, approximately three and a half miles east of Napoleon in Henry county, and the defendant, at the same time and place, was driving his own automobile in a westerly direction on U. S. route 24.

Such of the evidence as is essential to a disposal of the appeal will be considered under the separate assignments of error.

Plaintiff assigns errors in the following particulars:

1. At the request of defendant the court gave five special instructions, each and all of which were erro,neous.

2. The general charge of the court was erroneous.

3. Counsel for defendant were guilty of misconduct.

4. The verdict of the jury is contrary to the weight of the evidence.

5. The court erred in overruling plaintiff’s motion for judgment notwithstanding the verdict.

6. The court erred in overruling plaintiff’s motion for new trial.

These assignments will be considered in the order mentioned. >

The special instructions complained of were given to the jury before argument at the request of the defendant. Each of the instructions was simply a verbatim statement of the provisions of a section of the General Code of Ohio applicable to automobile traffic. These instructions were given without comment by the court, except a comment following all the instructions, ' which comment is in the words and figures following, to wit:

“These special requests or instructions are to be considered by you in connection with the general charge which I will give you at the close of the argument, and the law of the case will be the law which the court gives you both in these general instructions and in the general charge at the end of the argument.”

Each of the instructions mentioned contained provisions of the General Code applicable to the issues made by the pleadings and .the evidence in the case, and such provisions are so clear as to require no explanation by the court.

As the instructions mentioned were applicable to the issues made by the pleadings and the evidence they were not abstract, and the court did not err in giving such instructions over the objection of the plaintiff.

Under the 'second assignment of error the plaintiff contends that the court erred in giving instructions on the question of agency of the driver of the automobile in which the plaintiff was riding, for the plaintiff; and also upon the question of the contributory negligence of the plaintiff, the plaintiff claiming that there is no evidence/ in the case bearing upon the question of such agency, and there is no evidence of any act of contributory negligence on the part of the plaintiff.

There is evidence that all' the persons riding in the Meeker automobile and all the persons riding in the Puse’automobile in which the plaintiff was riding drove from Toledo to Defiance for the common purpose of visiting a former preacher of their church in Toledo, and attending church services at the church of which the preacher was in charge at Defiance, and that such purpose having been accomplished, they were on their way home to Toledo when the collisions between defendant’s automobile and the Meeker automobile, and defendant’s automobile and the Puse automobile occurred. There is also evidence that some of the persons riding in the Pnse automobile and the Meeker automobile agreed on the speed at which they would drive on the return trip, and who would lead and who would follow,, and in which automobiles they would-ride, but there is no evidence that the plaintiff was a party to that agreement. Furthermore, • there is no evidence that any of such persons had any right to direct and govern the movements and conduct of each other with reference to the operation of the automobiles, or that any of them other than the drivers thereof had any voice or right to be heard in the control or managment of either of the automobiles concerned. - •

It is settled in Ohio, by repeated decisions of the Supreme Court, that independent negligence of one person is not imputable to another person.

Facts may exist which show such a connection as will impose upon a person the consequences of the negligence of another person, but such a result rests on the relation of express or implied agency in the committer.

When the claim of contributory negligence depends on the agency which arises out of, or because of, a joint enterprise, the negligence must be directly connected with the subject of the joint enterprise. Moore v. Almendinger, 15 Ohio App., 503, at page 505.

Parties cannot be said to be engaged in a joint enterprise, within the meaning of the law of negligence, unless there be a community of interests in the objects or purposes of the undertaking, and an equal right to direct and govern the movements and conduct of each other with respect thereto. Each must have some voice and right to be heard in its control or management. Bloom v. Leech, Admr., 120 Ohio St., 239, at page 244, 166 N. E., 137.

The doctrine of imputed negligence does not ordinarily apply in Ohio, an exception being when parties are engaged in a joint enterprise.

A joint enterprise within the law of imputed negligence is the joint prosecution of a common purpose under such circumstances that each member of such enterprise has the authority to act for all in respect to the control of the agencies employed to .execute such common purpose. Bloom v. Leech, Admr., supra.

Under those authorities it is clear that except in cases where the driver of the automobile is in the employment of a person riding therein, the negligence of such driver is not imputable to such a rider unless they are engaged in the joint prosecution of a common purpose under such circumstances that each member of such enterprise has the authority to act for all in respect to the control of the automobile employed to execute such common purpose.

While there is evidence in this case tending to prove that the driver of the Puse automobile and the plaintiff were engaged in the joint prosecution of a common purpose, there is no evidence tending to prove that the driver of the automobile in which plaintiff was riding had authority to act for the plaintiff or any of the other persons in respect to the control of the automobile employed to execute such common purpose.

Consequently there are no facts in evidence warranting the charge on the subject of agency of the driver of the automobile, in which plaintiff was riding, for him, and the court erred in charging on such subject.

We shall next consider the claimed error of the court in charging upon the subject of contributory negligence on the part of the plaintiff.

Contributory negligence upon the part of the plaintiff was not pleaded, but if an issue of contributory negligence arose from the evidence the court did not err in charging upon that issue.

The evidence shows conclusively that there were three adult persons, dressed in winter clothing, riding in the front seat of the automobile in which the plaintiff was riding, and plaintiff’s own evidence is to the effect that he kept no lookout, did not see the approach of defendant’s automobile, the collision between it and the Meeker automobile, and the subsequent approach of defendant’s automobile toward, and the collision with, the automobile in which the plaintiff was riding; and that he, the plaintiff, may have been asleep before and at the time the collision occurred.

Under the provisions of Section 6307-68, General Code, a person is .negligent in riding in an automobile when there are seated in the front seat such number of persons as to obstruct the view of the driver to the front or sides of the vehicle or as to interfere with the driver’s control of the automobile.

There is no evidence in this case to indicate that the front seat of the automobile in which plaintiff was riding was of unusual width, or that the adults riding in the seat were less than normal size.

In that situation it was the duty of the court to charge on the subject of contributory negligence. Sheen v. Kubiac, 131 Ohio St., 52, at page 57, 1 N. E. (2d), 943.

The evidence that plaintiff kept no lookout and may have been asleep preceding and at the time of the collision was also of such character as to require the issue of contributory negligence on the part of 'the plaintiff to be submitted to the jury. Board of Commrs. of Logan County v. Bicher, 98 Ohio St., 432, 121 N. E., 535; Mocking Valley Ry. Co. v. Wykle, 122 Ohio St., 391, at page 395, 171 N. E., 860.

Consequently the court did not err in submitting the issue of contributory negligence to the jury.

Under this assignment plaintiff contends that counsel for defendant were guilty of misconduct.

While counsel for defendant, in many instances, were • guilty of misconduct in commenting upon the testimony as it was being introduced, and upon the physical condition and mental capacity of certain witnesses, the plaintiff at no time asked the court to order a mistrial because of such misconduct, and each time, when such misconduct was called to its attention by the plaintiff, the court granted plaintiff’s request that the jury be instructed to disregard the comments of defendant’s counsel. In other instances, the plaintiff did not object to the misconduct of defendant’s counsel. Consequently there is no foundation for-this claim of error.

Under this assignment the plaintiff claims that the verdict of the jury is against the weight, of the evidence.

It is unnecessary to set forth the evidence in detail, it being sufficient to state that the great weight of the evidence, including the testimony of Sheriff Bartell of Henry county, which testimony was denied on the trial by the defendant, to the effect that the defendant admitted to him that he was on the wrong side of the road when the collision with the Meeker automobile occurred, and defendant’s written statement made at the request of the sheriff immediately following the collision, to the effect that he, the defendant, did “not know what position I, was on the road when the collision with the Meeker car occurred,” denied by the defendant in his' testimony on the trial of the case, shows the collision between the defendant’s automobile and the automobile owned and driven by one Meeker, proceeding in the same lane of traffic about 200 cfeet ahead of the automobile in which plaintiff was riding, was proximately caused by the negligence of the' defendant in driving his automobile over and across the center of the improvéd road into the lane of traffic in which the Meeker automobile and the automobile in which plaintiff, was riding were approaching, that the collision of-the defendant’s automobile with the automobile in which the plaintiff was riding was proximately caused by the negligence of the defendant in driving his automobile on the wrong side of the improved road into and on the lane of traffic in which the automobile in which the plaintiff was riding was approaching, either because of damage to his automobile occasioned in the first collision,, preventing him from controlling his automobile, as testified to by him, or independent of such damage j and that the plaintiff was not guilty of contributory negligence.

The great weight of the evidence shows also that the plaintiff, through such negligence of the defendant., sustained substantial damages.

The verdict is, therefore, manifestly against the weight of the evidence, requiring reversal' of the judgment.

The evidence on the essential issues in the case was conflicting and so the court did not err in overruling plaintiff’s motion for judgment notwithstanding the verdict.

The errors assigned in the motion for a new trial have been considered in the preceding assignments of error.

From the foregoing discussion it is obvious that the court erred in overruling the motion for new trial because of error in its genera] charge in the respects above mentioned, and because the verdict of the jury was against the manifest weight of the evidence.

Although the error in the change, above mentioned, reflected only upon the issue of the contributory negligence of the plaintiff, the multiple-issue rule does not apply to tiie case, as upon the issue of the negligence of the defendant the verdict of the jury is against the manifest weight of the evidence.

For the errors mentioned, the judgment of the Common Pleas Court will be reversed and the cause remanded for new trial and further proceedings according to law, at the costs of defendant.

Judgment reversed.

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


author: .Wiseman, J.

text:
    The Brown-Brockmeyer Co., Appellant, v. Roach et al., Appellees.
    (No. 1892
    Decided November 30, 1946.)

      Mr. A. K. Meek, for appellant.

      Mr. Hugh 8. Jenkins, attorney general, and Mr. John M. Woy, for’ Unemployment Compensation Board of Review.
   .Wiseman, J.

This is an appeal on questions of law. from a judgment of the Court of Common Pleas of Montgomery county, affirming a decision of a referee of the Unemployment Compensation Board of Review, allowing a claim to an employee, John Michael Roach.

The claimant is over 64 years of age and for 40 years was employed as a salesman. During the war. emergency he lost his job as a salesman and took several other jobs in and around Dayton. He built up his unemployment record by being employed as an inspector at the Master Electric Company from August 28, 1943, to November 24, 1943, when he left such employment because of illness. He became re-employed December 6,1943, and quit January 5,1944, when work in his department ran out and his employer sought to transfer him to another department. He was employed as a collector by the Evening News Publishing Company on January 12, 1944, and quit on January 27, 1944, because the position required him to do excessive walking. He' became employed as an inspector by The Brown-Brockmeyer Company on April 22, 1944, and quit voluntarily on July 28, 1944. Claimant testified he quit because, first, he planned to enter governmental service and, second, he was dissatisfied with, inspection methods used by the company. He applied for a governmental position but was rejected because he had high blood pressure. Thereupon, claimant made numerous applications for employment as a salesman, the type of employment in which he was most experienced. The record shows he reported weekly at the local office of the bureau since filing his claim and was unable to find work and had no offer of employment by former employers.

Because he quit his employment at the Brown-Brockmeyer Company he- was subjected to the penalty of being required to wait an additional three weeks before receiving benefits and the total amount of benefits he could draw was reduced to twelve times his weekly benefit amount, as provided by Section 1345-6 b c, General Code, as it existed under the 1943 amendment.

The referee- allowed the claimant benefits and the decision of the referee was affirmed by the Court of Common Pleas of Montgomery county. From that judgment an appeal has been taken to this court.

The appellant has filed numerous assignments of error, some of which are not urged. The gist of the contention of the appellant is that the claimant voluntarily quit his employment; that claimant having quit voluntarily, in the absence of a showing to the contrary, the presumption prevails that the same position is still open to him; and that, therefore, claimant cannot show, as required by statute, that he is unable to find employment.

To establish the validity-of his claim, the claimant must show that he has complied with Section 1345-6 a (1) (4) (5), General Code (120 Ohio Laws, 682), which provided:

“a. No individual shall be entitled to any benefits unless he or she

“(1) Has been employed by an employer (or employers) subject to this act in at least twenty calendar weeks within his base period, and has earned wages in his base period equal to not less than $160; * * *

“(4) is able to work and available for work in his usual- trade or occupation, or in any other trade or occupation for which he is reasonably fitted; and

“ (5) is unable to obtain -work in his usual trade or occupation or any other employment for which he is reasonably .fitted including employments not subject to this act.”

There is evidence in the record sufficient to support the finding of the court that the claimant has fulfilled the requirements of subsections (1) and (4). Has claimant shown he is unable to obtain work? The appellant -relies on Canton Malleable Iron Co. v. Green, 75 Ohio App., 526, 62 N. E. (2d), 756, which held:

“When one qfiits his regular job or employment in the absence of a showing to the contrary the presumption must be that same is still open to him.”

That case is distinguishable from the instant case on the facts. In that ease the claimant on several occasions voluntarily walked off the job without notice to the employer and without just cause. On one occasion he was offered employment and returned to the job and worked for about eleven days and then quit again without notice to the company and without just cause. In that case the claimant did not submit any evidence of his inability to obtain work. The court on that state of facts held that there was a presumption claimant could continue to work at the same job and denied the claimant benefits.

In the instant case, the claimant gave notice to the company of his desire to quit, stating his reason, whereupon the company issued a separation • notice which was essential in order for claimant to secure employment elsewhere. Under this state of facts, no presumption arises that his former employment was still open to him.

' In the case of Kut v. Albers Super. Markets, Inc., 146 Ohio St., 522, 66 N. E. (2d), 643, cited by appellant, the claimant there was referred to two other companies, each of which was willing to employ him as a shipping clerk, the nature of the employment being similar to that in which he was formerly engaged. He was refused for the positions for the reason that he refused to work on Saturday. His employment with Albers Super Markets, Inc., was terminated by his refusal to continue to perform the work assigned to him. That case is distinguishable from the case at bar on the facts.

In the. instant case the fact that the claimant voluntarily quit work does not in and of itself deprive him óf benefits under the act. In such case the claimant is penalized by postponement of the time from which he may draw benefits, and the total amount which he may draw is reduced. The claimant still has a right to benefits if he shows a compliance with the provisions of Section 1345-6 a, General Code.

The referee found that the claimant made a bona fide effort to find employment in his usual trade or work, or employment for which he was reasonably fitted. He found none and was offered none. Judge Martin in a well considered and exhaustive opinion affirmed the decision of the referee. We do not find any error in the record on the matters assigned which are prejudicial to the appellant.

The judgment is affirmed.

Judgment affirmed.

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


author: Ross, J.

text:
    Wainscott, Appellant, v. Young, Appellee.

      (No. 6807
    Decided June 9, 1947.)

      Messrs. Cowell <& Fletcher, for appellant.

      Mr. David L. Shannon, for appellee.
   Ross, J.

This is an appeal on questions of law from an order of the Common Pleas Court, overruling a motion to vacate a final decree and for new trial, in a partition proceeding.

The action was pending on October 11, 1945.

The decree mentioned in the notice of appeal is designated as a judgment entered March 8, 1947, “overruling the motion for a new trial and entering judgment for the defendant.” .

Reference to the transcript of docket and journal entries develops that on June 3, 1946, the court made a finding in favor of ■ defendant. No motion for new trial was filed to such finding which was entered on the journal.

“Section 11578, General Code, providing that the application for a new trial must be filed within three days after the verdict or decision is rendered, is applicable to actions pending October 11, 1945, and not Section 11578, General Code, as amended effective on that date, which provides that ‘the application for a new trial must be made within ten days after the journal entry of a final order, judgment or decree.’ ” Paragraph two of the syllabus in Von Gunten v. New Justice Coal Co., 147 Ohio St., 511, 72 N. E. (2d), 253.

On July 1, 1946, the court entered a final decree dismissing the petition at plaintiff’s costs.

No notice of’ appeal was ever filed directed to that decree.

On July 3,1946, plaintiff made a request for findings of fact and conclusions of law. Such motion was not seasonably made. Bittmann v. Bittmann, 129 Ohio St., 123, 194 N. E., 8; Levick v. Bonnell, 137 Ohio St., 453, 30 N. E. (2d), 808; Nimon v. Klein, 43 Ohio App., 314, 183 N. E., 189; 39 Ohio Jurisprudence, 1201, Section 455; State, ex rel. Kerns, v. Beightler, Dir., 38 Ohio Law Abs., 615, 51 N. E. (2d), 213.

On the same day, July 3, 1946, the plaintiff filed a motion to set aside the judgment and for a new trial. That motion was ineffective as a motion for a new trial or to toll the time for filing, notice of appeal from the final decree of July 1, 1946, a finding of the court having been entered on the journal on June 3, 1946. Section 12223-7, General Code, as it existed before the amendment effective October 11, 1945, provided only two reference points from which the 20 days for filing notice of appeal begins to run, i. e., (1) the final judgment and (2) the'overruling or sustaining of the motion for new trial.

Such motion must be duly filed and effective as applied to the finding or judgment.

On October 30,1946, an amended request for findings' of fact and conclusions of law was filed. This request also was not seasonably made.

On March 7, 1947, the court entered findings of fact and conclusions of law. No motion for new trial was filed to such findings. On March 7, 1947, leave was given to file exceptions to such findings and conclusions, and exceptions were filed and overruled on the same day.

Oh March 8, 1947, an entry was made by the court overruling the motion to set aside the judgment and for a new trial. The court in that entry again ordered the petition dismissed at plaintiff’s costs.

Notice of appeal was filed to that last judgment, on March 21, 1947, almost nine months after final decree in this proceeding.

The final decree of July 1, 1946, was never vacated or set aside. The repetition in the entry of March 8, 1947, of a dismissal of plaintiff’s petition at his costs was mere surplusage as to the overruling of his motion to vacate the judgment. See Frankenstein v. Behrendt, 60 Ohio App., 403, 21 N. E. (2d), 678.

It is to be noted also that'the final decree, entered on July 1,1946, was in the July 1946 term of the Common Pleas Court of Hamilton county (See Rules of Common Pleas Court, I, 5), .and that, althpugh the ineffective motion for new trial and the motion to vacate were filed at the same term, the order overruling same was made in the January term of the following year, March 8, 1947. Had the court granted the motion to vacate the former final decree, it would have done so after the term in which such final decree was entered, and could have done so only for the reasons and in the manner prescribed in Section 11631 et seq., General Code.

Such motion to vacate and for new trial, as far as the record shows, was not predicated upon any ground found in the statutes, other than that applicable to motions for new trial. (Section 11576, General Code.)

This court, therefore, will dismiss this appeal on questions of law, for the reasons that no notice of appeal was filed within 20 days after the final decree in the action, and that the judgment from which the appeal is taken, that is, the judgment of March 8, 1947, was not a final order under the practice applicable at the time the action was originally instituted.

Appeal dismissed.

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


author: Hornbeck, P. J.

text:
    Heiland, Appellant, v. Hildebrand, Appellee.
    (No. 437
    Decided December 7, 1946.)

      Mr. Boland D. Beery, for appellant.

      Mr. A. W. DeWeese, for appellee.
   Hornbeck, P. J.

This appeal is noted as on questions of law and fact but as it is predicated on a money judgment, manifestly it cannot be such an appeal and counsel have at all times presented it as an- appeal on questions of law. The court will so consider it.

- At the outset, we are confronted with a motion of the defendant, appellee herein, to dismiss the appeal for the reason that no motion for new trial was filed within the period prescribed by law.

If it be granted that the motion for new trial was not filed within time, the appeal would not be dismissed but we would be precluded from considering any assignment of error involving the weight of the evidence.

Two' sections of the Code are to be considered in determining the time within which the motion for new trial was required to be filed, Section 11578, before the recent amendment, and Section 11578, as amended effective October 11, 1945.

This action was instituted on April 6, 1945, trial was had on December 14, 1945, and the trial judge on that date orally stated what his finding would be. Under Section 11578, before amendment, the motion for new trial was required to be filed within three days after the “verdict or decision is rendered.” Under, the amended section, “the application for a new trial must be made within ten days after the journal entry of a final order, judgment or decree has been approved by the court in writing and filed with the clerk for journalization.” Section 26, General Code, controls determination whether original or amended Section 11578 applies. The provisions of the amended section clearly relate to the remedy, but there is no expression in the language of the section to indicate that it shall affect pending actions, therefore, it may not be given application to this action and the original section controls.

The motion for new trial, having been filed more than three days after the so-called verdict, would be too late if it was in fact directed to a verdict. But, as we have stated, such delay would nof require or permit a dismissal of the appeal in its entirety.

The motion will be overruled.

The term of the trial judge who heard the case in the first instance expired on January 1, 1946. Plaintiff, appellant herein, filed two motions, one on December 15, 1945, and the other, to which we have alluded, the motion for new trial, on January 4,1946.

The action was for money claimed to be dne plaintiff for parts furnished and labor performed in the •repair of a motorcycle of the defendant. Based upon an account, the amount claimed was $70.41, with interest. The itemization of the account showed charges made under date of February 2, 1943, totalling $80.41, .upon which there was a credit of $75, leaving a balance due at the date of payment, April 16, 1943, of $5.41. Other charges were made, of date April 6, 1945, in the sum of $65. These charges were for the exchange price of one clutch, one crank shaft,' labor and sales tax. The answer denied any indebtedness whatever except $5.41 and pleaded a tender of that amount. The answer averred that the items set up in the account under date of April 6,1945, were included in the original account of $80.41. The reply generally denied the • new matter set up in the answer and admitted the tender and refusal of draft for $5.41.

The motion of December 15, 1945, was for separate findings of law and fact, and specifically for answers to five interrogatories set out. Upon the receipt of this motion, the trial judge assigned it for hearing on the 5th of January 1946. Judge DeWeese, who succeeded the trial judge, had'at the time of the original hearing represented the defendant and was therefore disqualified to sit in the cause.

Upon disclosure of these facts, S. R. Turner was named acting judge. He then considered the motion for new trial and the motion for separate findings of law and fact and for answers to the five interrogatories set forth, and prepared a written opinion with which we have been favored. That opinion shows the result of intensive examination of the difficult questions presented and is well and carefully prepared. In it is considered all the questions which are urged in the assignments of error in this court.

We give attention to all of them because we are required to do so, as against the possibility that we may be in error in the one determinative question upon which our decision is predicated.

The decisive proposition, in our judgment, is that no verdict was rendered in this cause, and none having been filed with the clerk there was no basis for any of the proceedings which followed thereafter and for the judgment which was entered.

There being no bill of exceptions which we may consider, there is nothing exemplified in the record which discloses that a verdict in any form was pronounced, and certinly none was ever returned in writing, entered on the trial docket,'or filed with the clerk of the Municipal Court.

If we had recourse to the bill of exceptions, it would show only that, at the conclusion of the trial, the court made the following oral statement: ‘ ‘ The court finds for the plaintiff and assesses his damages at $5.41 and one-half the costs.”

This in our judgment in no particular meets the requirements of the law. Cox v. Cox, 17 Ohio App., 25, affirmed, 108 Ohio St., 473, 141 N. E., 220. The second paragraph of the syllabus in that case is:

“An oral announcement by the trial court, at the close of the testimony in a divorce proceeding, that a decree is granted, is hot a judgment and does not dissolve the marital contract where no decree is entered on the minutes of the court.”

We consider the other assignments of error. The acting judge made separate findings of law and fact but refused to answer the interrogatories, holding that they were but evidential and did not establish any ultimate fact as to any issue presented. We reach the same conclusion but not for the same reason. In our judgment the answers to the interrogatories would have been, in part at least, material to and determinative of any judgment because they affected the issues between the parties, namely, the installation of the clutch and crank shaft arid particularly whether, if they had been installed, they had been paid for, and whether all the charges for labor in the account represented work done by the plaintiff.

The court was correct in refusing to answer the interrogatories, first, because no verdict had been rendered. But it is asserted that. the acting judge, successor to the trial judge, had no authority to entertain the motion for new trial or to consider and determine the motion for separate findings of law and fact and answers to the interrogatories.

There is a marked dearth of opinion of the courts of Ohio on this interesting question. At common law there is no power in a succeeding judge to consider and overrule a motion for new trial and it'would be granted for that reason. In some of the states we have statutes granting full power to hear and determine a motion for new trial to a succeeding judge. In Ohio our Code is silent on the question. One case in Ohio is cited, Oldham et al., Admrs., v. Winget, Gdn., 47 Ohio App., 287, 191 N. E., 824. The court there held that there was no error in the successor judge passing on the motion for new trial and relied on the case of Chesapeake & Hocking Ry. Co. v. Orr, 27 N. P. (N. S.), 393. In the principal case and the case upon which the court relied, the chief issue was one of law rather than a dispute as to the facts.

However, outside Ohio, the trend of later authority is to the effect that a successor judge may pass on a motion for new trial even though the weight of evidence is involved. 39 American Jurisprudence, 194, Section 196; People, ex rel. Hambel, v. McConnell, 155 Ill., 192, 40 N. E., 608; Camelin v. Smith, 53 Colo., 574, 128 P., 1125; Noonan v. Spear, 125 Minn., 475, 147 N. W., 654; Southall v. Evans, 114 Vá., 461, 76 S. E., 929, 43 L. R. A. (N. S.), 468, Ann. Cas. 1914B, 1229 (which in factual situation is much like the instant case). This is true even in criminal cases. Boyles v. People, 90 Colo., 32, 6 P. (2d), 7; Clark v. State, 29 Okla. Crim., 243, 232 P., 953; State v. Madry, 93 S. C., 412, 76 S. E., 977; People v. Mosley, 226 Mich., 295, 197 N. W., 541. See, also, State, ex rel. Cosgrove, v. Perkins, Judge, 139 Mo., 106, 40 S. W., 650. Many of the earlier eases which we do not cite hold to the contrary. •

That a successor judge should pass on the motion for new trial where the transcript of testimony at the original trial is available is logical in the concept of our practice. Such a judge in passing on the motion in a civil case does not determine whether the verdict is supported by a bare preponderance of the evidence but whether it is manifestly against the weight thereof or there is an entire insufficiency of evidence to support the verdict. This presents an entirely different status than that with which a trial judge is faced in resolving the factual questions in the first instance.

The more serious question in this proceeding is whether the acting judge could pass upon the special interrogatories and make the separate findings of fact. The question.is new in Ohio.

Section 11421-2, G-eneral Code, provides:

“When questions of fact are tried by the court, its findings may be general for the plaintiff or defendant, unless, with a view of excepting to the court’s decision upon questions of law involved in the trial, one of the parties so requests, in which case, the court shall state in writing the conclusions of fact found separately from the conclusions of law.”

That section applies to municipal courts. 29 Ohio Jurisprudence, 35, Section 35. This obligation has many times, without exception, been held to be mandatory and includes the obligation to answer all interrogatories involving the ultimate facts of the controversy. Cleveland Produce Co. v. Dennert, 104 Ohio St., 149, 135 N. E., 531; Gale v. Priddy, 66 Ohio St., 400, 64 N. E., 437; Globe Indemnity Co. v. Wassman, 120 Ohio St., 72, 165 N. E., 579; Mellon, Dir., v. Weber, 115 Ohio St., 91, 152 N. E., 753; Ellis v. Twiggs, 17 C. C. (N. S.), 172, 32 C. D., 96.

The requests must be timely made. Yetter v. Kleinman, 34 Ohio App., 433, 171 N. E., 362; Barnes v. Butler County Lumber Co., 38 Ohio App. 445, 176 N. E., 103. Several appellate courts have held that the request may be made at any' time before final judgment. Yetter v. Kleinman, supra; Nimon v. Klein, 43 Ohio App., 314, 183 N. E., 189; Parker v. Dales, 13 Ohio Law Abs., 655; Bloom v. Klein, 36 O. L. R, 552. The Supreme Court has not considered or passed on the express question, but in Bittman v. Bittman, 129 Ohio St., 123, 194 N. E., 8, it held that a request for special findings in a divorce action,, filedafter the decision in the case but before judgment, was filed in due time. It follows that the motion for such findings of law and fact and the requests to answer such interrogatories in this case were timely filed.

But for the last-cited case, which is controlling on this court, there are many moving and cogent reasons why such requests should be made prior to the general finding of a trial judge acting in the absence of a jury. This would be in harmony with the express provision of the statute relating to jury trials and would not be in conflict with any provisions of the Sections of the Code, controlling trials of law cases by a judge without a jury. Section 11420-17, General Code, providing for special findings of facts by a jury,-.makes it necessary that the request for such findings be made prior to the rendition of the verdict, and that it must be so done has been held in T. & O. C. Ry. Co. v. Beard, Admr., 20 C. C., 681, 11 C. D., 406.

Section 11421-3, General Code, provides:

“So far as in their nature applicable, the provisions of this chapter respecting trials by jury,, apply to trials by the court.”

If the requirement as to the time when the request for special findings of fact in jury cases must be filed was applied in trials to a- judge only, the question of the right of a successor judge to make such determination would never arise because the special findings would be made when, or prior to the time, the general finding would be filed.

But the serious question here is whether the acting judge could answer the special interrogatories and make the special findings of law and particularly of fact.

A judge acting in the trial of a law case without a jury is the trier- of the facts (Newland v. State, 29 Ohio App., 135, 163 N. E., 56), tests the credibility of witnesses as would a jury and his finding has the same effect and is entitled to the same weight as a verdict. To make a special finding of facts requires the same test as is applied in the first instant in returning a general verdict. In our judgment, it is an entirely different test than is applied upon a determination of the motion for new trial and may not be performed by the successor judge. We have found two cases somewhat analogous in principle and holding as we do, Chiricahua Ranches Co. v. State, 44 Ariz., 559, 39 P. (2d), 640; Mace v. O’Reilley, 70 Cal., 231, 11 P., 721.

Another error assigned is to the effect that the trial judge at the original hearing and the acting judge in passing on the motion for new trial and maleing separate findings of law and fact grounded their findings upon a development in the evidence which was not properly considered because, if there were a defense, it wfis an affirmative defense. We may not resort to the bill of exceptions, but if there was a basis for the separate finding of law and fact we could consider that finding on the present assignment of error.

It fairly appears from the separate finding of fact that the refusal to grant the motion for new trial was based upon the evidence that the plaintiff had removed a crank shaft and a clutch from a motorcycle, in the garage of plaintiff, which was owned by a Dayton resident. From this it was concluded that plaintiff had wrongfully appropriated those articles, and that part of his claim was based on his own wrongful act, for which he could not recover.

An examination of the pleadings, is convincing that there is no affirmative defense pleaded permitting the introduction of the testimony upon which that finding of fact is predicated. If this was a defense, it constituted an estoppel which under the law is affirmative and must be set up to be made available. Springfield Loan Co. v. National Guarantee & Finance Co., 63 Ohio App., 508, 27 N. E. (2d), 257.

We recognize that if we were testing only a general finding here for the plaintiff we might be required to give application to the legal principle that a court may adjudicate an issue supported by evidence, regardless of pleadings, where thére has been no objection to the introduction of evidence. North Electric Mfg. Co. v. Shelley, 32 Ohio App., 379, 168 N. E., 216. However, if our conclusion is correct, this cause will have to be retried and if such affirmative defense is expected to be asserted it should be pleaded. The claim may not, in the absence of an amended answer, be advanced for the purpose of such defense if objection is made to the reception of any testimony offered relating to that purpose.

The final assignment of error is that the judgment is not sustained by sufficient evidence and is contrary to the weight thereof and is contrary to law. As there was no motion for new trial duly filed, we cannot pass upon this question except as it is considered in the assignment respecting estoppel.

We restate the basic ground upon which we predicate the reversal in this cause. It is essential to a judgment in an action at law that there be a verdict, or a finding in lieu of the verdict. No such finding was made in this case. We are cited to the case of In re Estate of Lowry, 140 Ohio St., 223, 42 N. E. (2d), 987, wherein it was held that a decision of the trial judge was the basis for the filing of a motion for new trial, but it should be observed that in the cited case the trial judge rendered a written decision on the issues presented and that the Probate Court is one of which the judge is clerk ex officio.

All other questions here decided are merely ancillary to the principal and determinative question which we have discussed.

The judgment is reversed and the cause remanded for new trial.

Judgment reversed.

Wiseman and Miller, JJ., concur.


author: Miller, J.

text:
    Bosler, Trustee, Appellee, v. Sanderson, Trustee, et al. ; Netzorg, Appellant.
    (No. 1923
    Decided June 20, 1947.)

      Mr. James 8. Jenkins, Messrs. E. H. & W. B. Turner and Mr. Clinton 8. Courson, for appellee.

      Messrs. Estabrook, Finn é McKee, for appellant.
   Miller, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Montgomery county. Edwin Best Bosler, plaintiff, appellee herein, as one of three trustees under a deed of trust, sought a judgment declaring invalid a purported lease of real estate entered into in the year 1942, upon the ground that the two cotrustees could not exercise the power to lease conferred jointly upon all three trustees by the trust deed. 'Joined as defendants were plaintiff’s two cotrustees, the grantors of the trust deed, all living beneficiaries under the trust déed and defendant Sidney M. Netzorg, appellant herein, claimant under the lease of trust real estate executed in 1942 by. the two cotrustees but not by the plaintiff.

Appellant filed an amended answer and cross-petition and prayed that the trial court declare the purported lease valid. The trial court found in favor of the plaintiff, declared the lease invalid and dismissed appellant’s cross-petition. From that judgment appellant prosecutes this,appeal, all other parties defendant having failed either to perfect of to join in the appeal.

■The petition contained the formal averments and the allegation thkt only two. of the three surviving and successor trustees executed and delivered the lease and alleged verbatim the trust deed and the purported lease.

Appellant admitted the trust deed, the purported lease entered into in 1942, the formal averments and that only two of the three surviving and successor trustees executed and delivered the purported lease. The various defenses denied generally and alleged the sufficiency of the signatures, the payment of rent and the acceptance of the same by the trustees, that in so doing the lease had been ratified by all the trustees, and that they are estopped from challenging the validity of the lease.

The amended cross-petition alleged breach of covenant and prayed for damages.

Plaintiff’s amended reply pleaded the statute of frauds.

The trust deed, referred to in the petition, entered into on June 14, 1934, and in which the defendants, Ida Best Bosler, Etta Best Bishop and Florence Best Philipps, created an irrevocable trust, conveyed to three cotrustees the real estate which is the subject of the lease'. Each of the grantors, all sisters, named one of the original three cotrustees as a representative of her family group.. The trust deed expressly provides for the nomination of a successor trustee by the family group losing its representative by death, resignation or removal and makes it mandatory that “our trustees shall be so constituted and selected that each of the three family groups have a representative.” The trust deed does not expressly empower less than all three cotrustees to act on behalf of the trust, but does expressly provide that the trustees shall have the power to sell, lease, transfer or mortgage any part of the property. It expressly exonerates the trustees from “liability and responsibility to the beneficiaries” for the consequences of the trustees’ exercise of the powers conferred, if such powers are exercised in conjunction with the written consent of “two of the grantors (two or more being alive) or * # # of the surviving grantors (two grantors being dead) * * *. Strangers dealing with the trustees need not see that such consent has been obtained and so far as such strangers are concerned, the acts of the trustees shall be final and conclusive.”

After providing that the trustees always shall be so constituted and ' selected that each of the three family groups shall have a representative, the trust deed further provides:

“The trustees- herein named, together with any successors * * *, shall have the absolute and final right to deal with strangers to the trust and the strangers so dealing need not look behind the act 'of the trustees (s). And all instruments of conveyance or otherwise, affecting the trust property, properly signed and attested and acknowledged by the trustees shall be as good a conveyance as though signed, attested, and acknowledged by the grantors herein.”

The trust deed provides also that the proceeds of any sale of the trust real estate shall be -divided into three equal parts and shall “become three separate shares or estates” and thereupon it “shall no longer be necessary for three trustees to administer the whole. On the contrary, we direct that * * * a trustee be selected by each family group to handle exclusively, the trust share belonging to that group. * * * The three trustees * * * shall deliver the three trust shares to the three trustees selected for the representative family shares and the receipt of such trustee shall be a complete acquittance and discharge of the obligation of the three trustees acting at such time for the whole estate. ’ ’

The purported lease referred to in the petition bears the date of May 23,1942, and is for a term of 33 years. The annual rental throughout the entire period is $12,000 plus four per cent of the annual gross sales in excess of $300,000. This lease was never executed by the plaintiff pr his mother although they were mentioned therein, and in the signatory clause lines were apparently reserved for their signatures.

After defining all three trustees as lessors the lease concludes as follows:

“Lessors guarantee that they have full and complete power and authority to make and execute. this lease under the provisions of the trust agreement herein-before referred to.”

The record discloses that in November 1936 all three cotrustees jointly with all three grantors executed and delivered a lease of the trust real estate to Virginia Dare Stores, Inc., for a term of ten years, from February 1, 1937, to January 31, 1947, with an option to the lessee to renew for an additional term of ten years. The annual rental under the lease was $12,000 for the first year, $15,000 for the next nine years and $17,500' during the renewal term. Appellant executed this lease on behalf of the lessee as its president.

Virginia Dare Stores, Inc., the lessee named in the 1936 lease, operated a store in the leased premises from February 1, 1937, to the end of 1938, thereafter going into bankruptcy and undergoing a reorganization, after which it was not an operating company. Thereafter several successive corporations were formed which were wholly owned subsidiaries of Virginia Dare Stores, Inc., and which conducted the business. The annual rental paid under the 1936 lease was $12,000, although the lease called for more than this amount, and one year a lesser amount was paid.

In 1936 appellant owned the controlling stock and was president of Virginia Dare Stores, Inc., and continued to own such controlling stock. With the corporate lessee in default of rent under the 1936 lease and the' lessee thereunder having ceased to be an operating company, appellant endeavored- in April 1942 to negotiate a new lease. Apparently this new legse was to supersede the obligations of the then subsisting 1936 lease which then had almost five years more to run. As a result off appellant’s efforts a new lease of the same premises was executed by plaintiff’s two cotrustees, two of the three living grantors and appellant individually. This new lease was signed sometime during the month of May and became effective June 1,1942. On that same date plaintiff filed an action against his two cotrustees to construe the trust deed and to enjoin the two cotrnstees from delivering the purported'lease. There was no visible change as to the possession or occupancy of the premises on June 1, 1942, or at any time thereafter, the premises having always been occupied by a Virginia Dare Store.

From the time Virginia Dare Stores, Inc., /took possession of. the premises in February 1937 to the end of May 1942, the rent was paid by checks of Virginia Dare Stores, Inc. Under the purported new lease, the rent for the months of June, July and August, 1942, was paid by cashier’s checks of The Sterling National Bank & Trust Company of New York City. These checks were endorsed on the back, “Payment rental, June (July), (August) 1942, 33 North Main Street, Dayton, Ohio.” From September 1942 until the date of the trial, the rent was paid by checks from Virginia Dare Stores, Inc. The annual rental paid before as well as after the purported 1942 lease was $12,000, except for one year.' All the checks given in payment carried on them only the statement, “Payment of rent, ’ ’ and did not designate under which lease the payments were made. This, therefore, became a question of fact for the determination of the court, as the right of jury trial was waived.

The assignments of error may be epitomized as follows:

1. The judgment is contrary to law and against the manifest weight of the evidence.

2. The court erred in the admission and rejection of evidence.

3. The court erred in overruling appellant’s motion for leave to file a supplemental answer and amended cross-petition.

4. Other errors app'arent on the face of the record.

The first assignment of error raises the question of the validity of the lease, it being signed by only two of the three cotrustees, and, in event we should hold that the signatures of all three- cotrustees were necessary,' the question, did plaintiff ratify the lease' by accepting the rental payments and is he, therefore, estopped to deny his consent thereto. '

The trust deed gives the trustees power to lease-the real estate on the following terms:

“With the-consent of two of the grantors (two or more being alive) or with the consent of the surviving grantor (two being dead). * * * the trustees shall have the power to sell, lease, transfer or mortgage all or any part of said property * * *; including the right to lease for any terms, irrespective of the term of the period of the trust; to execute and deliver any proxies, powers of attorney or agreements that may be necessary or advisable in administering this trust. ’ ’

Immediately following and as a part of the foregoing paragraph, in which power is conferred upon the trustees to lease thq trust real estate, the trust deed provides:

“While the consent of the grantors as aforesaid is required of the trustees so far as liability and responsibility to the beneficiaries herein are concerned, strangers dealing with the trustees need not see that such consent- has been obtained and so far as such strangers are concerned, the acts of the trustees shall be final and conclusive. ’ ’

After conferring additional powers upon the trustees and after providing for the certification of a successor trustee, the trust deed further provides':

“ * * * the trustees herein named, together with any successors * * *, shall have the absolute -and final right to deal with strangers to the trust and the strangers so dealing need not look behind the acts of the trustee(s). And all instruments of conveyance or otherwise, affecting the trust property, properly signed, attested and acknowledged by the trustees shall be as good a conveyance as though signed attested and acknowledged by the grantors herein.”

By those provisions the trustees are given express power to lease the trust real estate, etc., to ‘ ‘ strangers to the trust. ’ ’ The appellant is a stranger to the trust as he was in no way a party or a privy thereto. See 40 Words & Phrases (Perm. Ed.), 245. In the absence of statutes or directions in the trust instrument to the contrary, the powers of cotrustees are held jointly and can be exercised only by their united action. The basis of this assumption is that the courts believe that such was the intent of the creator of the trust. One who appoints several trustees to manage a trust is deemed to express a desire to get the benefit of the wisdom and skill of .all in every act of importance under the trust. Winslow v. B. & O. Rd. Co., 188 U. S., 646, 47 L. Ed., 635, 23 S. Ct., 443; Sinclair v. Jackson, 8 Cowen (N. Y.), 543; Fairlawn Heights Co. v. Theis, 133 Ohio St., 387, 14 N. E. (2d), 1; Hoffman v. Drury, 18 Ohio Law Abs., 183; Village of Pleasant Ridge v. Harrison, Assignee, 42 W. L. B., 185; 1 Restatement of Trusts, 516, Section 194; 1 Perry on Trusts and Trustees (7 Ed.), 684, Section 411; 40 Ohio Jurisprudence, 429, Section 169; 3 Bogert on Trusts and Trustees, 440, Section 554.

In Fairlawn Heights Co. v. Theis, supra, the plaintiff sold a lot to the defendant and payments were to be made in installments with the deed to be delivered to the purchaser upoil the payment of the last installment upon the purchase price. The defendant defaulted and the plaintiff sued for the unpaid balance of the purchase price after tendering a deed and a release of the lot from a blanket mortgage held by a Note Holders Protective Committee. The release was signed by only two of the three members of the committee. In holding that the members of the committee were cotrustees and that the release of the mortgage executed by only two of the three trustees was ineffectual and that, therefore, plaintiff had failed to tender good title to the purchaser, the Supreme Court said at page 394:

“In the absence of anything showing the powers or authority of these * * * [three members of the committee] , they must be confined to a joint performance of powers, requiring the exercise of authority by the action of all of them. When the control of a private trust is vested in cotrustees, they all form but one collective trustee and must act together. * * * We consider this principle controlling here. ’ ’

In the case of Hoffman v. Drury, supra, this court quoted from 65 Corpus Juris, 667, Section 531, as follows:

“ ‘In the case of a private trust, as distinguished from a public or charitable trust, where there are several trustees and all have accepted and are exercising the office, their powers^ interest and authority are equal and undivided; they cannot act separately, but must act as a unit, except where authority to act is given to a majority of the trustees by statute, or by the instrument creating the trust * # ”

The decisions in this state establish the principle that, unless the trust instrument expressly provides for the exercise of the cotrustees ’ powers by a less number than all,,the qualified and acting cotrustees, it will be deemed that the creator of the trust intended to get the benefit of the wisdom and skill of all his cotrustees in every act of importance under the trust instrument. The granting of a lease which involves all the trust real estate - is certainly an act of importance. See Winslow v. B. & O. Rd. Co., supra. In the instant case, an examination of the trust deed itself is convincing that the grantors intended that the power to lease should be exercised only by the united action of all three trustees. Bach of the grantors appointed one of the three trustees as a representative of her family group. The trust deed especially requires that “our trustees shall be so constituted and selected that each of the three family groups have a representative.”

With respect. to the continuation of the trust so far as proceeds of sale of the trust real estate are concerned, the trust deed provides:

“Upon the sale of the property * * * it shall no longer be necessary for three trustees to administer the whole.”

Further evidence of intent that all action with respect to. the trust real estate be taken jointly by all three trustees is to be found in the provision that the majority of the three living grantors exercise the reserved power to consent on behalf of all three grantors, but significantly no similar provision is made in the trust deed for any less number than all three trustees to act on behalf of the “trustees.”

We, therefore, hold that the grantors intended that each of the three family groups should have a voice in the management of the trust real estate, speaking through the group’s “trustee.” The appellant contends, however, that, even though we find' it was necessary for all three trustees to sign the lease, the plaintiff ratified the lease by accepting the monthly rental payments and that the doctrine of estoppel has application. The record discloses that the plaintiff did accept the monthly payments each month, but he denies that the payments were made under the terms of the 1942 lease and claims that they were made in accordance with the 1936 lease. This, therefore, becomes a factual question, and we find that there is substantial testimony and evidence in the record to substantiate the plaintiff’s claim, so we cannot say that the judgment is against the manifest weight of the evidence, the trial court having found that the payments were not made under the 1942 lease. The entering into possession of the property under the 1942 lease also became a factual question as from all outward appearances there was no apparent change in the occupancy of the building. At all times from the year 1937 up until the time of the trial, the storeroom was occupied by a Virginia Dare store.

Another assigned error is that the court erred in overruling appellant’s motion for leave to file a supplemental amended answer and cross-petition. Such motion was filed August 26, 1946, four weeks after the trial court rendered the decision in favor of the plaintiff. The copy of the supplemental cross-petition attached to the motion alleged that the trustees accepted rent checks for the months of February through July, 1946 (after the trial), under the purported 1942 lease, “well knowing that said rental payments were tendered under the said lease and' under said leas© only. ’ ’ That is a reiteration of the allegations appearing in the third and fourth defenses of appellant’s amended cross-petition. Appellant failed to introduce sufficient evidence to support the allegation that plaintiff knew the rental checks were tendered, for 39 months prior to the trial, under the purported 1942 lease and not under the 1936 lease. Thus the allegation of plaintiff’s knowledge, after the trial, was no more susceptible of proof by appellant than allegations prior to the trial. The stipulation entered into and the evidence offered by appellant in support of the motion show that the rental checks remitted and accepted after the trial were of the same tenor as those remitted and accepted before the trial and on which the court rendered its decision. The evidence which appellant would have submitted had leave been. granted and which was offered in support of the motion does not differ from that previously submitted to the court at the time of the trial.

We are of the opinion that the court did not abuse its discretion in denying the motion for leave to file the supplemental amended cross-petition after trial and the rendition of the court’s decision. It seems apparent that appellant cautiously refrained from making any commitments as to which lease any of the monthly payments were to be applied. The checks uniformly carried the endorsement, “Payment 'of rent,-Dayton Store.” It is true, plaintiff knew that appellant was claiming under the 1942 lease and it is true that appellant knew that plaintiff did not recognize the 1942 lease and was claiming under the 1936 lease. Under such circumstances it would seem that appellant- had a purpose in not making known to which lease he wanted the payments applied. He wanted to be in a position to blow both hot and cold. In other words, if he should fail to sustain his 1942 lease, then he could urge that the payments were made under the 1936 lease. In either event he would not forfeit the right of possession of the Dayton store. Had he made known his intention it would have been the duty of plaintiff to apply the payments as directed. Union National Bank v. City of Cleveland, 10 C. C., 222, 6 C. D., 536.

We think the record sustains the trial court’s conclusion that plaintiff accepted no payments under the 1942 lease. No unfavorable inference can be drawn against plaintiff from the fact that he held the checks for the months of June 1942 through April 1943 and did not cash them until April 27, 1943. It was his privilege to cash them at his convenience, which he no doubt did, after thoroughly investigating the legal consequences in so doing. '

We find no prejudicial error in the admission and rejection of evidence or any other errors apparent upon the face of the record, and the judgment is hereby affirmed.

Judgment affirmed,

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


text:
    The State, ex rel. Brannon, Appellee, v. Turner, Appellant.
    (No. 3982
    Decided June 4, 1947.)

      Mr. 1. M. Harris, for appellee.

      Mr. Mitchell N. Nachman, for appellant.
   Miller, J.

This is a proceeding in bastardy which arose in the Juvenile Court, Court of Common Pleas, Franklin county, Division of Domestic Relations. A jury trial was had and a verdict of guilty was returned. A judgment of guilty was duly entered and it is from that judgment that this appeal on questions of law has been filed!

The assignments of error- are:

(1) The trial court erred in the rejection of the pre-trial cross-examination of the plaintiff, appellee herein, which was taken about two weeks before the jury trial.

. (2) The verdict of the jury is contrary to the evidence and against the manifest weight of the evidence.

The record discloses that at the trial, as a part of its case, the plaintiff read into the evidence the examination of the complainant by the judge of the Juvenile Court at the preliminary hearing, but did not read the cross-examination conducted by the defendant. This evidence was offered in attempting to comply wdth Section 12122, General Code, which provides:

“* * * At the trial, the examination before the justice shall be given in evidence by the complainant. ’ ’ The cómplainant was the first witness called by the plaintiff, and upon cross-examination of her by the defendant she was questioned as to certain statements made by her during the cross-examination at the preliminary hearing and while conducting the cross-examination the defendant offered into evidence the entire record táken at -the preliminary hearing, which evidence was refused, the court saying, “You haven’t come to that yet. You'stopped right in the middle of an examination and want to introduce something. Finish your cross-examination. Let us do one thing at a time.”

It will be noted that such evidence was offered by the defendant before the plaintiff had rested its case in chief. It was never reoffered by the defendant after the close of the plaintiff’s case. The method of trial procedure is defined by paragraph 3, of Section 11420-1, General Code, as follows:

“The party who would be defeated, if no evidence were offered on either side, first,. must produce his evidence, and the adverse party must then produce his evidence. ’ ’

The order in which each party may introduce his evidence rests, to a large extent, upon the discretion of the court, but' a defendant has no right to go into the distinct matter of his defense before the plaintiff has rested. See Legg v. Drake, 1 Ohio St., 286. Section 12111, General Code, permits the defendant to ask the complainant at the preliminary hearing any question he thinks may be necessary, for his defense. This evidence was obtained under this section and must, therefore, be considered as defensive matter, even if used for the purpose of impeaching the witness. The failure of the plaintiff to introduce it in its entirety cannot be fatal, for it is taken for the benefit of the defendant.

In Miller v. Busick, 56 Ohio St., 437, at page 441, 47 N. E., 248, the court says:

“The requirement of section 5625, that ‘the examination before the justice shall be given in evidence by the complainant, is for the benefit of the defendant. It affords him an opportunity to compare the testimony of the complainant given at the trial with her statements under oath, at the inception of the proceeding. It is a requirement which the defendant might waive. ’ ’

See, also, Guthrie v. West, 24 O. O., 12, 9 Ohio Supp., 62.

We are, therefore, of the opinion that since the defendant did not offer this evidence in the presentment of his case he waived the right to do so. The defendant was permitted to read questions and answers which he contends were inconsistent with her statements made as a witness. So the jury was fully informed on this matter and its rejection could not-have been prejudicial to the right of the defendant even though the court erred in its admission, which we do not concede. The better procedure, however, would have been for the complainant to have offered the exhibit in its entirety and upon failure to do so, the defendant should have moved that the complainant be required to offer it, for under Section 12122, General Code, the entire proceeding before the judge or justice is admissible and should be offered by the complainant.

The verdict of the jury was not contrary to the evidence or against the manifest weight of the evidence. As is usual in cases of this type, there was a great conflict in the testimony. However, there is substantial evidence in the record to support the verdict, and we cannot, therefore, say that it is against the manifest weight of the evidence, which is not determined by. the number of witnesses on either side, but by the impression which their testimony makes upon the jury. The weight of the testimony and the credibility of the witnesses are questions for the jury and we cannot say that the jury erred in this respect.

The judgment is affirmed.

Judgment affirmed.

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