author: Wiseman, J.

text:
    The State of Ohio, Appellee, v. Fouts et al., Appellants.

      (No. 1913
    Decided January 25, 1947.)

      Mr. Mathias H. Heck, prosecuting attorney, Mr. Fred M. Kerr and Mr. William H. Wolff, for appellee.

      Mr. Herbert M. Eikenbary, for appellant Albert Fonts.

      Mr. Harold J. Bandy and Mr. George A. Hurley, for appellant Virgil Summers.

      Mr. Albert H. Scharrer and Mr. William Scott Stewart, for appellant George C. Moran.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery county, Ohio, wherein the defendants, Albert Fonts, Virgil Summers and George C. Moran, were jointly indicted, tried and found guilty of armed robbery.

The gist of the charge is that on June 28,1946, while armed with guns, the defendants did unlawfully and wilfully make an assault upon one John Kurpe, Jr., and unlawfully and with force and violence and by putting John Kurpe, Jr., in fear did steal and take $10,000 from John Kurpe, Jr., being the personal property of Gabor Silas. To that indictment each of the defendants interposed a plea of not guilty and filed notice of alibi. All three defendants were found guilty as charged in the indictment, join in the appeal and assign as error: (1) The verdict is contrary to law; (2) the verdict is against the manifest weight of the evidence; (3 and 4) the failure of the trial court to discharge the jury and declare a mistrial; - (5) the failure to charge the jury upon the included offense of assault to rob; (6) all other errors apparent upon the face of the record.

The undisputed facts in this case show that Gabor Silas conducted a tavern at Moraine City, which is located a few miles south of Dayton near Frigidaire plant No. 2; that on Fridays he customarily cashed pay-roll checks for workmen at the plant; that John Kurpe, Jr., was the son-in-law of Gabor Silas, the owner of the tavern and they both kept large sums of money in safe deposit boxes for use in cashing payroll checks; that the safe deposit boxes were in the west side branch of the Winters National Bank &, Trust Company, located at the corner of Third street and Broadway, Dayton, Ohio; that John Kurpe, Jr., lived with Gabor Silas on Red Haw road, which is located in the northwest part of the city of Dayton; that on June 28,1946, John Kurpe, Jr., left his residence at about ten o’clock a. m. in a Ford coupe; that he drove to the hank and took from his safe deposit box $10,000 in new $10 bills, which the teller of the bank exchanged for old $10 bills and delivered to him in two packs, which Kurpe, Jr., placed in his shirt; that he then drove south on Broadway in the direction of the tavern ; that near the outskirts of the city of Dayton, traffic going south on Broadway is directed over Dona avenue for a distance of several squares and then back again to Broadway; that as he was proceeding on Dona avenue he was required to slow down for a truck which was proceeding ahead of him; that at that moment a large Buick sedan overtook him and cut in ahead of him, causing him to turn to the curb and stop; that two men with guns in their hands jumped out of the sedan and covered him; that one robber entered his automobile on the driver’s side and the other robber entered his automobile from the other side and forced Kurpe’s head down between his knees and placed a gun against the back of his neck; that one of the robbers drove Kurpe’s automobile south on Broadway and over Vance road for quite a distance and then into a lane leading into a woods; that a short distance up the lane the robber stopped the automobile, forced Kurpe out and the two robbers then took from him the $10,000; that the robbers wore white- and blue-striped caps similar to those worn by railroad workmen and one of the robbers had on a dungaree jumper; that one robber wore canvas gloves and the other wore gloves which looked like leather gloves; that they took off Kurpe’s shoes and threw them across a creek and forced Kurpe to lie on the ground face down, whereupon they bound his hands behind him and his feet with adhesive tape and placed adhesive tape across his mouth; that within a few moments Kurpe heard another large automobile drive up the lane, make, a turn and stop; that he heard a door on the automobile open and shut and the automobile speed away; and that he loosened the tape and, seeing his own Ford coupe and the large. Buick sedan, which sedan he observed was used by the robbers on Dona avenue, parked in the lane and the robbers gone, he left the scene and notified the police.

The record shows further that Fouts resided at 502 West Fourth street, Dayton, Ohio; that on the day in question Summers resided in Evansville, Indiana, and Moran in Henderson, Kentucky, which is approximately seven miles from Evansville; that, between the date of the robbery and the day the defendants were arrested, Summers moved from Evansville to Henderson,. Kentucky; and that all three defendants were apprehended on July 6, 1946, at their respective residences.

The undisputed evidence shows that on May 5, 1946., Fouts wrote a letter to Summers as follows:

“May 5-46

“10 00 a m

“Friend “Doc Etc.;

“I received your note after I returned from the Derby — so congratulations folks upon the new arrival.

“Doc — & ‘Pop’ — I would very much like for you & ‘old’ man to be over this way by 9 30 a. m. Wednesday —starting Wednesday a. m. the issue starts to roll.

“I want you folks to see those conditions for the one week — I and also the author will also check on last Wed. Thurs. & Friday’s events, to see if things are regular. (By the way — bring with you also a working mans out fit — like you did up Ft-Wayne way — it will make it better to see things

“I would like that you stay over from Wed a. m. till Fri noon—

“I’ll arrange for you folks lodging “over”

[other side of page]

“so be here by 9 30 a. m. Wed — then we’ll go into details.

“I’ll be waiting here at the house Wed. so give me a ring when you get in and I’ll meet you. So get in touch with the ‘old’ man.

“Regards from all to all.

“Mon —”

The evidence shows that Summers was .nicknamed “Doc” and that “Pop” and “Old Man” referred to Moran and he so testified. Both Summers and Moran testified that within a few days after Summers received the letter they came to Dayton, met Pouts and stayed at the residence of Pouts one day or a part of two days, after which they returned to their homes. The evidence shows further that on Tuesday, June 25, Summers and Moran drove to Dayton in Summers’ Buick sedan; that they stayed at the Pouts residence from Tuesday evening until Friday; and that a fourth person, whom Summers, and Moran called “Johnny,” who has not been apprehended, also wás in Dayton during the greater portion of that time and stayed at the Pouts residence.

The evidence shows that at the time of his arrest Pouts denied knowing Summers or Moran or that they had been in Dayton recently; that Summers denied knowing either Pouts or Moran and denied being in Dayton;.and that Moran refused to make any statement in regard to his being in Dayton or knowing either Pouts or Summers.

The evidence is undisputed that Summers used his Buick sedan while he was in Dayton, which sedan bore an Illinois license plate; that his automobile had been seen and was well known by agents of the Federal Bureau of Investigation; that on the night of Juñe 25 or early morning of June 26 a four-door, 1939 Buick sedan owned by Anson Hayes of Middletown was stolen from his garage in Middletown; that the stolen Buick sedan bore an Ohio license, A-31-H; that the three defendants, ^together with a fourth man, were seen using the stolen Buick sedan, together with Summers’ sedan, on the streets of Dayton; and that the stolen Buick sedan was the automobile which was abandoned by the robbers in the lane near the Ford owned by Kurpe, at the time the robbery took place.

The evidence presented by the state clearly shows that all three defendants had been under surveillance by the F. B. I. for quite some time; and that F. B. I. agents had been watching the residence of Fouts in Dayton, that of Summers in Evansville and that of Moran in Henderson, Kentucky. 15 agents of the F. B. I. were called as witnesses by the state. Some of these agent’s were able to identify one of the defendants, some two of the defendants and some all three defendants. These agents were acquainted with the makes and types and license numbers of automobiles used by the defendants.

Only one of the defendants, Summers, was identified by Kurpe as one of the two men who actually robbed him; he could, not identify either Fouts or Moran as the other robber. It is obvious that four persons were involved in the robbery, the two robbers who jumped into Kurpe’s automobile and took the money later in the lane where they had parked, the person who drove the stolen Buick which followed the robbers into the lane, which automobile was abandoned at the scene of the robbery, and the fourth person, who later drove into the lane in another automobile, picked up the other three participants and immediately speeded away from the scene of the crime.

What is the evidence which connects Fouts and Moran with the robbery? It was stipulated by counsel that if the cook and housekeeper of Fouts were called they would testify that on Tuesday, June 25, three men arrived at Fouts ’ residence; that they remained there until Friday, June 28; and that they were known as George, “Doc,” and “Johnny.” The agents of the-F. B. I. watched the residence of Fonts at different periods of the day, at some periods one agent and at other periods two agents. The testimony given by these agents and several other witnesses covered most of the time from Tuesday evening until Friday morning, and in substance was as follows: On Tuesday evening an agent of the F. B. I. observed a 1939 Buick sedan, bearing an Illinois license and always identified as Summers’ auto, parked near Fouts’ residence. On Wednesday morning, June 26 an agent of the F. B. I. observed Summers and two other men whom he could not identify leave Fouts’ residence and drive away in Summers’ auto. The witness followed them in an automobile to Third and Williams where the two> men and Summers parked their automobile and walked around several blocks near the intersection of Third and Broadway where the bank is located. Later, they drove their automobile north on Broadway to Harvard boulevard, across Harvard boulevard to Salem avenue,, then north on Salem avenue to Red Haw road, near the residence of Silas and Kurpe. The Summers automobile then was driven around several squares in the-vicinity of Red Haw road and Salem avenue and was-then driven over the route first taken, continuing down. Broadway through Dayton to South Broadway and the Springboro pike, circled around and parked near Silas’ tavern. The three men left the automobile for about 15 minutes, after which they again entered the automobile and retraced the route previously taken going north on Broadway, at all times followed by the witness in an automobile. As the witness arrived at South Broadway and Dona avenue, where the northbound and southbound traffic are separated, he observed Summers’ automobile headed south, where the trail was lost.

On Wednesday evening at about 7:30. o’clock two agents of the F. B. I. observed three men leave Fouts’ residence and enter Summers’ automobile, the driver being identified as Summers. They drove out German-town street and on route 4 through Germantown and Middletown to LeSourdsville lake, followed by the two agents in separate cars. At LeSourdsville lake the agents ceased trailing Summers’ automobile. It was on that night that the Buick sedan, owned by Anson Hayes of Middletown, was stolen from his garage,, the sedan bearing Ohio license No. A-31-H,

On Thursday morning, at about'one o’clock, the Summers Buick sedan and a Buick sedan bearing Ohio license No. A-31-H were seen by two agents of the F, B. I. to approach and park in front of the Fouts residence. The driver of Summers’ Buick was identified as being Summers. Moran got out of Summers’ automobile and he, together with Summers and the driver of the stolen Buick, entered Fouts’ residence. Within a few minutes thereafter, Fouts, Summers, Moran and a fourth man left Fouts’ residence and entered the two sedans, the unidentified man taking the driver’s seat in the stolen Buick and Summers taking the driver’s seat in his own Buick sedan. The two agents of the F. B. I. followed the two Buick sedans to a filling station, on the corner of Fifth and Broadway where both automobiles were serviced. The service man at the filling station identified Summers and Moran in the Buick bearing an Illinois license and Fouts and an unidentified man as the occupants in the Buick bearing the Ohio license. The two Buicks left the filling station and were driven north on Broadway, followed by the two agents of the F. B. I., across Harvard boulevard and up Salem to Red Haw road, entering the intersection of Red Haw road and Salem avenue, where the drivers stopped the automobiles and turned out the lights, which location was near the residence of John Kurpe. Within a few minutes the two Buicks were observed moving on Red'Haw road in an easterly direction, whereupon the trail was lost. At about two-o’clock on the same morning, Fouts and several other men, with two automobiles, were observed by two witnesses, both of whom knew Fouts and one of whom conversed with Fouts at that time in the alley in the rear of the residence of his mother who had died a short time before. Such residence was located at 3039' North Main, in the northern part of the city of Dayton. One of the automobiles was placed in the garage in the-rear of such residence, and Fouts and the other men drove from this location in the other automobile. At about 2:30 o’clock on the same morning, Summers’’ Buick alone was observed parked in front of Fouts’ residence.

On Friday morning, June 28, the day of the robbery, at about-9:30 o’clock, Summers was seen driving his Buick north on Robert boulevard, a short distance from Fouts’ residence. Fouts, Moran and a fourth unidentified man were in the automobile. They drove over West Third street bridge to Sunrise avenue and then over Riverview avenue to McKinley park near the art museum, where the trail of the F. B. I. agents was lost. At about 10:00 o’clock on the same morning a witness, who knew Fouts and who lived near the residence of Fouts’ mother, observed Fouts and other men in an automobile passing the mother’s home. The robbery took place at about 10:30 o’clock on that same morning. The. witnesses supported their identification of the individuals by describing them in age, weight, height and manner of dress.

The evidence shows further that at the time of his arrest there was found in the possession of Fouts $1,000 in $10 bills, hidden in a secret chamber in the ■ceiling of a closet in Ms living quarters; that, at the time of his arrest, Fouts g-ave to his landlady, in the presence of one officer, 28 $10 bills, which money was immediately taken by the officer; and that two loaded Colt revolvers, a number of pairs of canvas gloves and one leather glove were found in possession of Fouts.

In support of their defense, Moran and Summers •offered evidence to show that at the time of the robbery they had already left Dayton and were driving on their way home on the highway between Aurora and Evansville, Indiana, a distance of approximately 75 miles from Dayton. Moran, who admitted having been in Dayton several' days previous and up until Friday morning, testified that he and Summers left Dayton in Summers ’ automobile at 8:30 a. m.; and that they were in Aurora, Indiana, at 10:30 o’clock that morning. Summers’ wife testified that her husband with Moran arrived in Henderson, Kentucky, at the Moran home at about 1:30 p. m. There was testimony introduced on behalf of Fouts that about 10:20 o’clock a. m., on the day of the robbery, he and two ladies entered the White Owl cafe on West Third street, Dayton, a few blocks from his residence, and that he was still in that •cafe at 11:30 a. m.

On rebuttal the state produced several witnesses to contradict the testimony offered on behalf of the defendants. An agent of the F. B. I. and a county patrolman of Henderson, Kentucky, testified that they were watching the residence of Moran on June 28, and that Moran and Summers arrived at the Moran home in Summers’ automobile about 7:00 p. m.,‘Dayton time. The second F. B. I. agent contradicted in part the testimony offered on behalf of Moran and Summers. Several witnesses were called by the state to rebut the testimony offered on behalf of Fouts. Obviously if the jury were to believe the testimony of the defense witnesses, a conviction could not stand. Apparently, the jury rejected the testimony offered on behalf of the defendants and believed the testimony of the witnesses offered by the state. Both direct and circumstantial evidence was presented in abundance. Direct evidence strongly supports the conviction of Summers. There is much direct and circumstantial evidence presented to connect Moran and Pouts with Summers in acts and conduct leading up to the robbery, and circumstantial evidence involving them in assisting in the escape of the robbers and in regard to Pouts in the recovery of articles and money at the time of the arrest.

After reading the entire record, consisting Of 748 pages, we are of the opinion that there was sufficient evidence to warrant the jury in finding that the letter written by Pouts, inviting Summers and Moran to visit him in Dayton, was for the purpose of planning the robbery; that the mention of the clothes in the letter referred to the striped clothing and caps worn- by the robbers; that Summers and Moran participated in stealing the Buick sedan at Middletown; that Pouts, Summers and Moran all participated in secreting and using the stolen Buick; that the driving over the streets of Dayton, which Kurpe customarily drove over in going from his home to the,bank and from the bank to Silas’ tavern, on two occasions by Pouts, Summers and Moran and the surveying of the territory around the home of Kurpe, the bank and the tavern were in furtherance of an agreed plan on their part to rob Kurpe; that the two robbers who jumped from the sedan on Dona avenue were assisted by two other persons, the driver of the stolen Buick and the driver of Summers’ Buick; that the money found in the home of Pouts was money taken from Kurpe; and that Summers and Moran did not arrive in Henderson, Kentucky, until approximately 8 hours after the robbery had taken place. The evidence strongly supports the state’s contention that Fouts and. Moran were aiders and abettors. Under the provisions of Section 12380, ■General Code, they could be found guilty as principals. The court very properly, under the evidence in this ease, charged the- jury on the law as to aiding and abetting.

After a careful consideration of all the evidence, we ■are not prepared to say that the verdict of the jury is contrary to the manifest weight of the evidence or contrary to law.

The defendants were either guilty of armed robbery .as charged or not guilty at all, under the defense interposed and the evidence adduced. They could not be guilty of a lesser offense under the evidence. The court did not commit error in refusing to charge on the lesser offense of assault with intent to rob.

The defendants urge a reversal on the ground that the court committed prejudicial error in refusing to •discharge the jury and in permitting thé case to continue after certain publicity appeared in the Dayton ■newspapers, which publicity the defendants claim prejudiced the minds of the "jury and deprived defendants of a just trial. The record in this case shows that •during the trial there appeared in the Dayton daily newspapers news articles in which the defendants were accused of being involved in the burglary of the Ansonia Bank. Those articles appeared with large headlines, accompanied with photographs of the defendants ■and other persons accused of being gangsters. The record shows that the trial began August 12 and continued through August 26. Counsel for the defendants ■filed motions on August 20 to discharge the jury after .such articles first appeared on August 16, 17 and 19. The motions were supported by affidavits of counsel. "The court overruled the motions. Again, similar artides appeared’ in the local newspapers on Angnst 23, 24 and 25. At the close of the case on August.26, counsel for the defendants again filed motions to discharge the jury, which motions were supported by affidavits of counsel. The court overruled the motions.

The record shows that the jurors were never locked up, but were permitted to separate each day and at recesses taken at noontime. The contention of counsel for the defendants is that such news articles were calculated to prejudice the minds of the jurors and deprive defendants of a fair and just trial. If we concede that such articles if read by the jurors would have prejudiced their minds against the defendants and defeated the ends of justice, does the record show that the court committed prejudicial error in overruling the motions? No effort was made to interrogate the jurors either by the court or counsel. No request was made by counsel that the court determine whether such articles were seen or read by the jurors. The record is silent on that matter. The court will not presume that the jurors saw the newspaper articles, read them and were prejudiced by them. The court was careful at each recess to caution the members of the jury about, discussing the case, etc., or reading newspapers or listening to radio broadcasts. Unless and until the contrary is shown of record, we are required to adhere to the well established principle of law that it is presumed that the jurors obeyed the instructions and admonitions of the court. In passing on this matter on review this court will not indulge the presumption that the jurors disobeyed the instructions of the court. Defense counsel cite the case of Meyer v. Cadwalader, 49 F., 32, in which the court held:

“Where, during a trial extending over several days, the jury separating after each daily session, leading-newspapers in the city in which the trial was taking place published matter calculated to prejudice the jury against one of the parties, it will be presumed that the jury saw the matter published. ’ ’

The case of People v. Murawski, 394 Ill., 236, 68 N. E. (2d), 272, was also cited, in which the court held that it would be presumed the jurors read the newspaper articles. On page 239 the court said:

“Defendant in error seeks to justify the action of the court i-n refusing to declare a mistrial on the ground that there is no postive proof in the record that any of the jurors had read the particular article complained of. ’ ’

And on page 240 the court said:

“Whether the denial of the motion for a mistrial in this particular case constituted an abuse of the discretion vested in the trial court depends upon whether the record fairly, shows that at least some of the jurors read the article, and the character of the article itself. We think the record sufficiently shows that the jurors had access to the issue of the paper in which the article appeared and that it cannot be said that none of the jurors read the article. The newspaper in which it appeared was the only morning newspaper published in the city of Rockford. It would be a violent presumption to say that no one of twelve men and women, having the intelligence of average jurors, would read the only local morning paper. According to the affidavit attached to the motion, the paper had an extensive circulation in the city of Rockford and the surrounding community. It is further shown by the affidavit that the examination of the jurors on their voir dire disclosed the fact that several of the jurors were accustomed to reading this particular newspaper in their homes. We think it is. not too much to say- that most every juror who had access to the particular issue of the paper in which the article appeared would undoubtedly have read the account concerning the trial in which he was serving as juror. Particularly is this true where the article appeared in the home paper of the juror, which he was accustomed to reading.”

In the case of Meyer v. Cadwalader, supra, the newspaper articles related to the merits of the case being tried, and in neither of the two cases cited does the record show that the court cautioned the jury about reading newspaper articles. In the case at bar the jurors were repeatedly cautioned, and the articles concerned a bank burglary which was a matter wholly unrelated to the issue being tried.

We appreciate the importance of the legal proposition presented. Apparently the federal courts apd the courts of several of the states have held to the' proposition that when such publicity appears in the daily newspapers in the city in which the trial is taking-place, it will be presumed that the jurors read such articles, and that they were prejudiced thereby. However, we are not without authority on .that proposition in our own state. In Ryan v. State, 10 C. C. (N. S.), 497, 20 C. D., 306, which case was affirmed without opinion by our Supreme Court in 79 Ohio St., 452, 87 N. E., 1141, it was held that even though copies of newspapers appeared in the courtroom, which contained articles calculated to prejudice the minds of the jurors against the defendant, a motion to discharge the jury was properly overruled, where there was no evidence that the jurors read such newspapers. The court in that case refused to follow the ease of Meyer v. Gadwalader, supra, and on page 502 said:

“Authorities are numerous to the effect, that the reading by jurors of newspaper articles prejudicial to •one of the parties is ground for new trial, but we do not feel justified in indulging in the presumption which Judge Acheson seems to have indulged, in that the objeetionable articles were read by the jnrors, or any of them. We feel it our duty rather to presume that the jurors were mindful of their duties and that they did not, in violation of such duties, read the newspaper publications about the cáse while it was on trial before them. We think it should not be said there was misconduct on their part simply because a popular newspaper gave them the opportunity for misconduct. There was no error, therefore, in overruling this motion. ’ ’

This court approves of the holding in Ryan v. State, supra, and refuses to follow Meyer v. Cadwalader, supra. Furthermore, it must be noted that under the provisions of Section 13449-5, General Code, a reviewing court is not permitted to reverse a judgment of conviction “unless it shall affirmatively appear from the record that the accused was prejudiced thereby or was prevented from having a fair trial.”

In the instant case it does not affirmatively appear from the record that the jurors were influenced or prejudiced by the newspaper articles in arriving at their verdict. In the absence of such a showing in the record, this court finds that the trial court did not commit prejudicial error in overruling the motion to discharge the jury. Furthermore, we are of the opinion that the facts in this case do not fall within the provisions of Section 13443-18, General Code, which provides that “the court may discharge a jury without prejudice" to the prosecution for the sickness or corruption of a juror, or other accident or calamity * * *.” (Italics ours.)

We find no prejudicial error in the record relative to the admission or exclusion of evidence and do not find the court committed error in refusing to give defendants ’ special instructions to the jury before argument. We are of the opinion that the defendants Nad a fair trial, that the evidence presented supports the verdict of the jury in finding the defendants guilty as charged in the indictment, and that the judgment is not contrary to law.

Judgment affirmed.

Horneeck, P. J., and Miller, J., concur.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Holmes et al., Appellants, v. The Union Bank of Commerce Co. et al., Appellees.
    (No. 20300
    Decided June 19, 1946.)

      Messrs. Simmons, DeWitt & Vilas and Mr. J. Albert Lowell, for appellants.

      Mr. Hugh S. Jenhins, attorney general, and Mr. Harold O. Ziegler, for appellee Superintendent of Banks.

      Mr. Harold O. Ziegler and Mr. Oliver Stamper, for appellee Union Properties, Inc.

      Messrs. Andrews, Hadden & Putnam, Mr. John B. Putnam and Mr. Edwin A. Howe, for appellee The Union Bank of Commerce Company.
   By the Court.

This is an appeal on questions of law and fact from a judgment of the Common Pleas Court. It was presented in this court on the record made in the Common Pleas Court.

Under authority conferred by Section 710-89, General Code, the Superintendent of Banks took possession of the assets of The Union Trust Company of Cleveland on June 15, 1933, and at once filed with the clerk of the Court of Common Pleas of Cuyahoga county a notice in accordance with Section 710-90, General Code, thereby commencing an original action for the liquidation of that trust company. Thereafter, the superintendent filed an action against the stockholders of the trust company to assess their double liability, as a fesult of which a large sum was collected.

The Union Trust Company was the largest bank in Ohio. Its liquidation was an enormous task. After it had been in progress for more than four years, during a period of economic depression from which there had been little, if any, relief, a “Plan for Reorganizing the Affairs of The Union Trust Company” was formulated in September of 1937. This plan was filed in the liquidation action, together with an application by the Superintendent of Banks for an order approving it and authorizing him to carry it into effect. The court fixed February 19, 1938, as the date for hearing the application and ordered notice to be given by publication, in compliance with Section 710-95, General Code, and also by registered mail, enclosing' a copy of the plan.

Before the date of hearing, objections were filed by several interested persons. After a full hearing of the application and the objections of one stockholder, the court approved the plan and authorized and directed the superintendent to carry it into effect, which he did by making the transfers of the property on April 11, 1938.

No action challenging this order was filed within five days, or request for leave to file such an action was made within that time by any of the plaintiffs in this action.

There is no donbt that the formulation and approval of this plan was the result of months of deliberation and that it was accompanied by the widest publicity and that all creditors and stockholders had notice of the terms of the plan and of the court’s hearing on the application for its approval.

Thereafter, certain depositors filed actions to enjoin the superintendent from carrying the plan into effect. These actions were decided in favor of the superintendent and the judgments were affirmed by the Court of Appeals. It was not until June 8, 1943, that this action was filed 'by the plaintiffs, stockholders, challenging the validity of the plan, the power of the superintendent, the -jurisdiction of the court and its order approving the plan and seeking an accounting, a money judgment, and an injunction.

A reading of the plan shows that it presented an alternative to stockholders. If they consented to the plan and joined in its execution, they acquired certain rights. If they did not consent they had, and still have, certain rights. These plaintiffs elected not to consent. In retrospect, it may seem that the part of wisdom would have dictated an election to join, but that conclusion can be reached only by a disregard of that depressed economic condition that existed in 1937 and the inflationary economy of 1943 produced by World War II. At any rate, the plan deprived the plaintiffs of no vested right, but preserved to them what the court found to be their rights in the assets of the trust company.

The voluminous briefs and extensive oral arguments offer a temptation to discuss the various contentions in detail — but it would serve no- useful purpose. We find as did the Common Pleas Court that the disposition of the assets in accordance with the plan approved by the court was authorized by Section 710-95, General Code. We are of the opinion that the approving order is binding upon all those who failed to challenge it within five days and that, as in those cases in which it was challenged within that time, the plan was approved and it became binding upon all. We are also of the opinion that a litigant who has delayed for five years the assertion of a right while innocent persons have acquired rights and positions have been changed, to rescind which would result in almost inextricable confusion, is in no position to ask for equitable relief. Russell, Admr., v. Fourth Natl. Bank, 102 Ohio St., 248, 131 N. E., 726.

We approve the reasoning contained in Judge Me- ' Namee’s memorandum to lawyers in this case, and we reach the same conclusion in favor of the defendants.

A decree similar to the one entered in the Common Pleas Court may be entered in this court.

Decree accordingly.

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

Hildebrant, P. J., Matthews and Ross, JJ., of the First Appellate District, sitting by designation in the Eighth Appellate District.


author: Ross, J.

text:
    Baker, Appellee, v. Griffin et al., Appellants.
    (No. 919
    Decided November 27, 1946.)

      Messrs. Gasper & Gasper, for appellee.

      Mr. Clinton D. Boyd, for appellants.
   Ross, J.

This ease was at first presented as an appeal on questions of law and fact, but it appearing to he an appeal from a final judgment in a proceeding brought under the' provisions of Section 11631, General Code, and Section 11634, General Code, the court reduces such appeal to an appeal on questions of law. Although the original action was in chancery, the anciliary statutory proceeding to vacate upon other than equitable grounds is not a chancery proceeding.

The final decree of the trial court in the original action was vacated upon motion of the plaintiff. The ground upon which the court vacated the decree does not appear in the entry of vacation, but the court found that the “plaintiff has a valid cause of action and that said motion is well taken.”

In the plaintiff’s motion, it is stated: “Plaintiff, Clarence Baker, by his attorneys * * * moved to vacate the judgment heretofore rendered in this cause on the ground that there was irregularity in obtaining the judgment.”

That is the only ground for vacation alleged in the motion.

From the bill of exceptions it appears that counsel for the defendants approached one of counsel for plaintiff with a request that he endorse the final entry, finding in favor of the defendants. Counsel for plaintiff, so' approached, stated: “That he was not familiar with the case and that Casper & Casper were the chief counsel and would have to sign the entry as well as himself; that at the time counsel for defendants stated to Mr. Sullivan, that he would not present the entry to the court until he first presented same to Mr. Casper; that counsel for defendants endeavored to present the. entry to Mr. Casper on one occasion, but, upon failing to find him in the office, proceeded to have the court approve the entry and without having first presented it to Mr. Casper. That because of this, Mr. Casper did not learn of the judgment entry until after time for filing a motion for new trial had expired, and that later when he learned about the entry, he obtained the promise of counsel for defendants that he would waive any objection to filing a motion for a new trial,” which motion was filed by plaintiff, and later defendants filed a motion to strike such motion for new trial from the files..

The effect of the conditions imposed by the counsel signing the entry was to produce the same result as if the entry had not been signed, when those conditions were violated.

The rules of the Court of Common Pleas of Butler county provide:

Rule IX. “All entries shall be approved and signed by the court before being filed with the clerk. All counsel shall have the opportunity to present objections thereto before such approval.”

• Rule X. “Counsel for the party in whose favor an order, decree or judgment is rendered, shall on or before eight days thereafter, prepare the proper journal entry and submit the same to counsel for the opposite party, who shall approve or reject the same within three days after its receipt by him. Counsel to whom such entry is so submitted may if he so desires, request of the court an oral hearing on the entry. If counsel in whose favor an order, decree, or judgment is rendered fails to furnish a copy of the entry to the court, the court may put on its own entry, and if this entry is not objected to, then the entry so prepared by the court shall be'final and be filed with the •clerk of courts.”

Such “undisputed” facts show “irregularity” in obtaining the original final decree in favor of the defendants, and the court committed no error in vacating such judgment under the provisions of Section 11631, General Code, and Section 11634, General Code.

The judgment of the Court of Common Pleas of Butler county" is affirmed.

Judgment affirmed.

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


author: Miller, J.

text:
    Powell, Jr., Appellant, v. Layton, Appellee.
    (No. 3892
    Decided June 27, 1946.)

      Mr. E. W. Dillon, for appellant.

      Mr. Joseph W. Horner, for appellee.
   Miller, J.

This is án appeal on questions of law from a judgment of the Probate Court of Franklin county, Ohio.

The action was one brought to construe the will of Harry T. Powell, who died in 1919 and whose estate was duly administered. The principal items in question are as follows:

“Item II. I give and devise all of my property real, personal.and mixed wheresoever located to Adelia Powell, her heirs and assigns forever.”

That item was immediately followed by the third item which, after naming his wife as executrix, provided as follows:

“It is my wish that if at the death of my wife, our son, Harry T. Powell, Jr., he living all our property go to him.”

All the- real property of the testator was transferred in fee simple to Adelia Powell by order of the Probate 'Court in 1921, and at the time of her death in 1944 she still owned all that real estate. Adelia Powell married Edward Layton,' on February 6, 1923, and left a will in which she gave her surviving husband a life estate in one-half the income from certain property •acquired after the death of Harry T. Powell, and bequeathed all the rest and residue of her property to her son, Harry T. Powell, Jr., the plaintiff, appellant herein.

So far as the pleadings are concerned the only allegations in the petition which are denied by the defendant, appellee herein, are contained in the last paragraph of the petition with respect to the manner in which Adelia Powell Layton considered and treated all the property of which she became seized and possessed through the will of her husband and as to certain statements made by Mrs. Layton with respect to that real estate.

Evidence was offered in the trial court as to the manner in which Mrs. Layton interpreted the will of her husband. There is no dispute regarding the fact that Mrs. Layton never disposed of or attempted to dispose of any of the various parts of the real estate of which she became possessed through the will of her husband. ,

Evidence was offered also by the plaintiff through testimony of Susie Mitchell, a tenant of Mrs. Layton during her lifetime,.that in 1942 Mr. Layton came to collect the rent for his wife who was ill at the time, and said to her in the presence of her sister, Carrie Dyer, in substance, “if anything happens to my wife, I won’t collect the rent any more, because all the property goes to Harry Powell, because Harry’s father left it to him in his will. I will be out of doors myself.” An objection was raised to all the testimony offered bearing upon those declarations of Mrs. Layton and the manner in which she treated the property devised to her, and also to the testimony of Susie Mitchell, the tenant of Mrs. Layton. The objection to that testimony was sustained by the trial court and it is that ruling which gives rise to specification of error No. 1, which is as follows:

“The court below erred in rejecting testimony offered by plaintiff-appellant bearing upon the declarations of the devisee, Adelia Powell Layton, and also in rejecting testimony .concerning the actions of the devisee, Adelia Powell Layton, as bearing upon her understanding of the quantum of her devise.”

The trial court ruled inadmissible practically all the testimony of the witnesses contained in the bill of exceptions, upon the ground that evidence as to declarations of the devisee as to the estate which she received by the will, or how she handled or treated such estate, can have no bearing upon the estate which was actually conveyed by the will.

We are of the opinion that the court was correct in refusing the admission of t-hat evidence for the reason that it reflected in no way upon the intention of the testator, Harry T. Powell. In the construction of a will it is the intention of the testator that governs and not what someone else thought he was getting. That evidence offered by the plaintiff was irrelevant, improper and incompetent.

Counsel for plaintiff cites the case of Winder v. Scholey, 83 Ohio St., 204, 93 N. E., 1098, as authority for the admission of that evidence. Paragraph one of the syllabus in that case reads:

“Where a testator is induced to make an apparently absolute legacy, by a promise, express or implied, on the part of the legatee that he will transfer the legacy to another, although no express trust is created and although the legatee at the time of the promise intended no fraud, a court of equity may interfere to prevent a wrong, and declare the legatee a trustee ex maleficio for the protection of the testator’s intended beneficiary. ’ ’

Paragraph two of the syllabus reads:

“A trust in an absolute legacy may be established by parol evidence, and the. contemporaneous declarations of the testator, and subsequent declarations of the legatee, that the bequest was made for the benefit of a third person upon the promise of the legatee to hold it in trust, are admissible for that purpose.”

In that case the testator wished to will his property to his lodge. His counsel advised him not to will it direct to the lodge but suggested that he will it to three members of the lodge in whom he had confidence that they would do with it what he intended them to do, namely, to turn it over to the lodge, and he did so bequeath it upon the promise of one made in behalf of all that they would transfer it to the lodge*. Upon his death the three refused to turn over the property to the lodge. Equity stepped in and prevented them from disposing of the property and declared them trustees ex maleficio. That case does not fit the case at bar for the reason that there was an agreement between the testator and one of the three that the property would be turned over to the lodge.

In the case at bar the testimony offered and rejected by the court was in no way connected with any wish or desire of the testator.

The plaintiff relies also on the case of Harvey v. Gardner, 41 Ohio St., 642, the first and third paragraphs of the syllabus of which read:

“1. In this state it is competent to prove an express trust in lands by parol evidence.”

“3. The acceptance of an express parol trust en-grafted upon an absolute grant of an interest in land, may be presumed from acts of the grantee at or subsequent to the time of the grant.”

That case is not similar to the case at bar, for in that case, there was parol evidence offered to prove ah express trust in lands, and the court held that acceptance of the trust may be presumed from acts of the grantee at or subsequent to the time of the. grant. In the case at bar there was no evidence, either verbal or written, as to the creation of any trust and, therefore, the conduct of the beneficiary under the will is irrelevant and immaterial.

The second assignment of error is:

“The court below erred in rendering judgment for the defendant-appellee when' judgment should have been rendered for plaintiff-appellant. ”

To pass upon this assignment of error it becomes necessary for the court to determine the real intention of the testator. Item II of the will devises a fee simple estate to Adelia Powell, her heirs and assigns forever. ' Item III by providing “It is my wish that if at the death of my wife, our son, Harry T. Powell, Jr., be living.all our property go to him,” does not.in as clear terms take away or limit the devise and bequest to Adelia Powell, her heirs and assigns forever. The subject of cutting down a fee simple estate is discussed in 41 Ohio Jurisprudence, 738, Section 624:

“A fee-simple estate granted in one clause of a will may be restricted to a lesser estate by subsequent provisions thereof, but an express bequest or devise cannot be cut down by a subsequent clause of doubtful meaning. Therefore, a fee-simple estate granted in plain and unequivocal language in one clause of a will cannot be lessened or cut down by a subsequent clause unless the language therein is as clear, plain, and unequivocal as that in the first grant.”

[Innumerable Ohio cases are cited which sustain this principle.]

“Thus, an express and positive devise cannot be controlled * * * by a subsequent clause expressing a wish, desire, or direction for its disposition after the death of the devisee, * *

“A devise of all of the testator’s property to his wife, ‘to be hers absolutely,’ vests in her the fee-simple estate which is not lessened by a succeeding item providing that in case the wife of the testator should ‘ die, leaving no will, ’ the property should go to the children. It is also clear, both on principle and on authority, that a devise in fee is not to be modified or fettered with a trust by construction of its words, unless they plainly show that such was the intention of the testator. Such an intention is not to be imputed to him upon mere conjecture.”

Continuing, Section 625 reads:

“An estate in fee simple is the full and absolute estate in all that can be granted. Subsequent'provisions of a will will not avail to take away from such estate certain qualities that the law regards as inseparable therefrom, as, for example, alienability. Where a testator makes a gift with a condition inconsistent with, and repugnant to, the gift, the condition is wholly void. It is obvious, however, that a testator may, by the use of language in other portions of the will, give a lesser estate than the meaning of the words of the gift, standing alone, would import.”

Continuing, Section 626 reads:

“It is well settled that a remainder cannot be limited after an estate in fee. The reasoning underlying this rule is fairly obvious. The fee is the whole estate, and where the entire estate is given to an individual, there cannot be a remainder. Nothing is left on which a remainder over can operate. It is frequently asserted that a remainder limited upon an estate in fee simple is void.”

See, also, Page on Wills (3 Ed.), 360, Section 1113, wherein it is stated:

“Language which cuts down an estate in fee to a less estate must be at least as clear and decisive as the words by which the estate in fee was given in the first instance.”

Our view of the language used in this will is that the term “it is my wish,” is merely precatory. No limitation is placed on the devise and bequest already made.

In the case of Pealer, Admr., v. Cruit, 3 Ohio Law Abs., 325, this court made the following pronouncement :

“Where one clause devises fee simple estate, and another provides for remainder implying a life estate, the first clause, granting a fee is valid and the second is void, for where there is a fee, there is no remainder.”

Also, in the third paragraph of the syllabus in the case of Strevey v. Williams, Exr., 34 Ohio Law Abs., 81, this court said:

“If a fee simple estate be granted in plain and unequivocal language in one clause of a will it cannot be lessened or cut down by subsequent clauses ‘unless the language therein is as clear, plain and unequivocal as that in the first grant.’ ”

See, also, Persinger v. Britton, 10 Ohio App., 164, 165; Hull v. Chisholm, 7 Ohio App., 346.

. For the foregoing reasons we find that no error was committed in the trial court, and the judgment is affirmed.

Judgment affirmed.

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


text:
    In re Schanck.
    (No. 3914
    Decided June 24, 1946.)

      Mr'. Eldon H. Young, for petitioner.

      Mr. Hugh 8. Jenkins, attorney general, and Mr. Henry 8. Zwolinski, contra.

   By the Court.

This is an action in habeas corpus, originating in this court, wherein the petitioner seeks his release from the Ohio State Penitentiary where he was confined under sentence by the Common Pleas Court of Summit county after being convicted of a felony commonly referred to as unarmed robbery, in violation of Section 12432, General Code. The petitioner took an appeal to the Court óf Appeals of the Ninth Appellate District, which affirmed the conviction and judgment of the trial court. An appeal was taken to the Supreme Court which also affirmed the conviction and judgment, the opinion being reported as State v. Jones, 145 Ohio St., 136, 60 N. E. (2d), 654, to which reference is made for a detailed statement of the facts.

The issue presented, concisely stated, is: Was the offense charged committed by the petitioner, and if not, may the court order his release in habeas corpus proceedings? Section 12432, General Code, under which, the defendant was indicted provides as follows:

“Whoever, .by force or violence, or by putting in fear, steals and takes from the person of another anything of value is, guilty of robbery, and shall be imprisoned in the penitentiary not less than one year nor more than twenty-five years.”

The petitioner contends -an intent to rob or steal is an essential element- of a crime of- robbery, and that if the evidence does not show an indent to rob or steal, there cannot be a valid conviction of robbery. The petitioner relies on Matthews v. State, 4 Ohio St., 539, which was decided in 1855 when the statute provided that the offense must be committed “with intent to rob or steal.” That case has no application to the instant case for the reason that the statute as amended no longer contains the words “with intent to. rob or steal.” In State v. Sappienza, 84 Ohio St., 63, 95 N. E., 381, 34 L. R. A. (N. S.), 1118, Ann. Cas. 1912 B, 1109, the court, in commenting on the provisions of Section 12432, General Code, on page 70, says:

“Upon making proof, therefore, beyond reasonable doubt, that the defendant, with others, by force or violence, or by putting in fear, had stolen and taken from the person of the individuals named in.the indictment, against their will, something of value, the state had made its case one justifying a verdict of guilty, unless the defendant on his part produced evidence which exculpated him. The state did not need to go into the question of intent on the part of the robbers because of the universal rule, as a presumption of fact, that the natural and probable consequences of every act deliberately doné were intended by'the person who did them.” (Emphasis ours.)

By stipulation the record of the trial court has been introduced as evidence in the case at bar. This record discloses that this petitioner when put on trial, under cross-examination, testified as to facts, and made admissions, which supported the charge of the state, and in proof of all the elements of the offense charged in the indictment, with the possible exception of a criminal intent. With respect to the proof of a criminal intent, we find the law to be that a person is presumed to intend the natural and probable consequences of his voluntary act. The petitioner did not deny that he helped to plan the act which constituted robbery, and was near the scene when the act took place and fled the scene of the crime in an automobile with the other participants.

The trial court properly charged the jury relative to “intent.” Whether the petitioner committed the act with a criminal intent is a factual question which was properly submitted to the jury and resolved against the petitioner. The petitioner was stated to be an aider and abettor to the robbery. The trial court properly charged the jury in regard to the application of the provisions of Section 12380, General Code. There was evidence to support the .conviction and judgment of the court.

Error, if any appears, could and should have been presented to the reviewing courts on appeal. This proceeding in habeas corptis cannot be made a substitute for an appeal. Ex parte Lindway, 132 Ohio St., 473, 9 N. E. (2d), 1; Ex parte Elicker, 117 Ohio St., 500, 159 N. E., 478. Relief can be granted to the petitioner in this procee'ding only if this court should find that the conviction and judgment of the trial court were void. Ex parte Shaw, 7 Ohio St., 81, 70 Am. Dec., 55; State, ex rel. Kelly, v. Frick, 14 Ohio Law Abs., 355.

In the case at bar, no question is raised as to the jurisdiction of the trial court over the subject matter or the person of the petitioner; neither is there any question raised as to the legal sufficiency of the indictment in properly charging a crime under the statute. The complaint of the petitioner relates to a factual-matter which was properly submitted to the jury in the trial court. In this proceeding, we are without authority to open up a factual matter for redetermination. Neither the motive for the commission of the act nor mitigating circumstances, which we admit exist, are pertinent or persuasive in the determination of the issue in this proceeding. We fail to see wherein the conviction and judgment of the trial court are void.

The writ will be denied.

Writ denied.

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


author: Hornbeck, P. J.

text:
    The Peoples Savings Bank of Greenville, Ohio, Appellee, v. Foureman, Gdn., Appellant.
    (No. 645
    Decided April 9, 1946.)

      Mr. George W. Porter, for appellee.

      Mr. Walter F. Rhynard, for appellant.
   Hornbeck, P. J.

Tkis is an appeal from a money judgment in favor of plaintiff, based on a directed verdict after tbe submission of the evidence of both parties upon trial of tbe cause.

Plaintiff’s action was upon a promissory note dated December 13,1930, payable to the order of Allen Foureman of Greenville, Obio, for tbe sum of $91.30, signed by W. B. Albrigbt and endorsed to .plaintiff bank by C. Foureman, trustee of Allen Foureman.

Tbe issue joined raised tbe question of tbe legal right of plaintiff to maintain its action on the note under the facts and particularly upon the endorsement of C. Foureman, trustee of Allen Foureman, who, on the date the note was given, was acting as trustee of Allen Foureman under a trust deed made by Allen Foureman to Cornelius Foureman.

Defendant by answer set up several defenses, the effect of all of which waá to- question the validity of the note and particularly its ownership under the endorsement appearing thereon. The trial judge directed a verdict. The motion for new trial and the assignment of errors raise substantially the same questions as set up in the answer of defendant, all of which go to the ultimate question of the right of the bank to maintain its action on the note under the facts appearing,

We are of opinion that there is but one legal question of consequence presented, namely, the right of the trustee to sell the personal property for the purchase price of which the note in question was given and to take the note therefor instead of cash. The plaintiff bank was obligated to learn the authority and power of the trustee to take the note and to make the endorsement. Holmes, Booth & Hayden v. Hayes, 52 Ohio St., 617; Stone v. Davenport, 1 W. L. B., 102, 7 Dec. Rep., 83; Mutual Mfg. Co. v. Divine, 21 O. D. (N. P.), 802, 9 N. P. (N. S.), 602; Anglo-South American Bank v. Star Drilling Machine Co., 20 O. D. (N. P.), 200, 9 N. P. (N. S.), 449.

By the terms of the trust instrument, it fairly appears that Allen Foureman transferred the legal title to real estate and personal property, therein described, to Alonzo Foureman for the purpose of paying the creditors of Allen Foureman, and to accomplish this the trustee was given absolute control of the property during the life of the trust and power to administer the property so as to accomplish the purposes of the trust. It is obvious that the trustee was given power to sell either privately or by vendue the personal property if thereby he could better assure the payment of the creditors of the maker of the trust. Ordinarily, it may be said that if an instrument is silent as to the manner of sale, whether cash or on credit, it shall be made for cash. 1 Restatement of the Law of Agency, 166, Section 71. However, here was an instrument authorizing the management, control and sale of farm property which was sold at public auction. It is testified and undenied that it wa's customary practice at such sales to accept notes for the purchase price of personal property. It is probable then, that by implication, this instrument authorized such a form of sale which was in accord with the business practice in the vicinity in which the sale was conducted.

Under all the circumstances appearing and in the light of the trust instrument, we are not prepared to say that the trial judge held erroneously on this determinative question.

The judgment will be affirmed. ,

Judgment affirmed.

Wiseman and Miller, JJ., concur.


author: Ross, J. Matthews, P. J.,

text:
    Bauman, Appellant, v. Guckenberger, Aud., et al., Appellees.
    (No. 6758
    Decided February 17, 1947.)

      Mr. Fred G. Lamping, for appellant.
    ' Mr. Carl W. Rich, prosecuting attorney, and Mr. James G. Headley, for appellees.
   Ross, J.

Tliis is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton county.

The action was commenced on October 7, 1946, and was instituted to obtain a declaratory judgment upon the status of certain real estate, sold by the auditor of Hamilton county as forfeited land.

In the petition it is alleged that the plaintiff purchased a certain parcel of land at a “tax sale” conducted by the auditor of Hamilton county, at the county .court house; that one Edna Luella EwalcL failed to pay the taxes upon such parcel of land for a period in excess of three years; that “after all statutory proceedings Avere had” such parcel of land was forfeited to-the state of Ohio by decree of the Court of Common Pleas of Hamilton county, Ohio; that on the folloAving day, to wit, June 1, 1946, the auditor published in the newspapers of Cincinnati, Ohio, his first notice of sale-, of such forfeited lands and on June 8, 1946, his second notice was published; that on June 10, 1946, such auditor began the sale of such forfeited land; that plaintiff paid $400 as the purchase price of the parcel and was issued a certificate of purchase by the auditor; that thereafter, plaintiff sought advice of counsel, and became convinced that the auditor had not complied with the statutes applicable to the sale of forfeited lands and particularly with Section 5751, General Code; that the auditor is tendering plaintiff a deed to-such property so purchased by him; and that such deed, by reason of the failure to comply with the statutes, will be insufficient to convey good title to plaintiff.

The prayer- of the petition is for a judgment of the-court declaring the rights of the plaintiff in the premises, and in particular whether the auditor, under the-circumstances, can convey a good title, and for all further and necessary relief.

In effect, the answer of the auditor is an admission of the factual allegations of the petition and an assertion that the provisions of Section 5751, General Code, are “directory” and not “mandatory.” 'The auditor joins in the prayer of the petition for a declaration of rights in the premises, but prays for a declaration that the “sale and all steps taken” were in conformity with the statutes and that the deed tendered will convey a “new and perfect title.”

The trial court found that the auditor had complied with the statutory requirements, and that he could convey good title by the deed tendered.

From the evidence it appears that the auditor at the sale mentioned in the pleadings sold 3,759 parcels of land out of 4,394 parcels covered by a judgment of forfeiture previously made in the Court of Common Pleas of Hamilton county; some 630 to 640 parcels having-been redeemed. The total returns from such sales amounted to $243,649.48, and the cost of advertising and other expense amounted to $41,236.06, and such sales were conducted after conference with the prosecuting attorney of Hamilton county, and in conformity with the opinion of the Attorney General (Opinions of Attorney General [1944], 342, No. 6988.)

In addition to the foregoing, a stipulation of fact was entered into by the parties, filed in the court and made part of a bill of exceptions.

In its final judgment, the court fails to state how evidence was presented to it.

This action having been commenced subsequent to October 11, 1945, the new and amended provisions of the Code of Civil Procedure, effective on that date, became applicable.

A motion for new trial was filed to an entry of the court marked “Finding.” Although so marked, it is essentially a final judgment. Thereafter, the court entered an “order overruling the motion for new trial and rendered judgment in favor of the defendant George Guckenberger, Auditor.” There is no authority for such practice as to actions commenced after October 11, 1945. The so-called “Finding” is in fact a final judgment, and the second “Judgment” may be-disregarded except as an overruling of the motion for new trial. The notice of appeal was filed within 20 days from snch overruling of motion for new trial.

The stipulation contains the following statement of facts:

“After the August, 1943, settlement, taxes having remained unpaid on the land described in the plaintiff’s-petition for more than two consecutive semi-annual tax settlement periods, the defendant, George Guckenberger, auditor of Hamilton county, Ohio, included said land in a list of all delinquent lands located in the county. This list was duly certified by said defendant on the 11th day of February, 1944. On February 2: and 9, 1944, display notices of the coming publication of the delinquent land list were inserted in two newspapers, The Cincinnati Times Star and The Cincinnati Eriquirer. On March 15 and April 10 of 1944, a list of the delinquent lands was published in The Cincinnati Times Star. On March .16 and April 10, 1944,. the same list was published in The Cincinnati Enquirer. More than two years after the publication of such certification, the defendant auditor made a certificate of all delinquent lands, certified as aforesaid,, upon which taxes had not been paid. On April 11,1946, the auditor submitted this list to the county board of revision. After consideration of this list, the board ordered certain lands to be omitted from 'foreclosure. On May 14, 1946, a list of these omitted lands having-been prepared, - this list including the property described in the plaintiff’s petition, the prosecuting attorney, in the name of the members of the board of revision, filed an application in the Common Pleas Court of Hamilton county, Ohio, case No. A-98583, to have-these lands forfeited to the state (of) Ohio.

‘ ‘ On May 31, 1946, the court granted the application of the board of revision and declared the lands included in the list prepared by the board of revision, with some few exceptions, forfeited to the state of Ohio. The land described in the plaintiff’s petition was included in these lands so forfeited. On June 1, 1946, the auditor published in The Cincinnati Times Star and The Cincinnati Enquirer a notice that the following is a list of the lands forfeited to the state for nonpayment of taxes and the dates on which said lands will be offered for sale. This publication also gave notice that.if taxes are not paid before the date of sale of any parcel the listed lands will be offered for sale to satisfy such taxes. On June 8, 1946, this publication was again made in The Cincinnati Times Star and The Cincinnati Enquirer.

“On June 12, 1946, the property described in the plaintiff’s petition having been included in the list of forfeited lands to be sold on said date was offered for sale, the taxes thereon having not been paid. This land was first offered for the amount of taxes, assessments, penalties, interest and costs. No offer being received, it was offered to the highest bidder. Whereupon, the plaintiff bid four hundred ($400) dollars. This being the highest bid, the auditor issued a certificate of such sale to the plaintiff, upon receipt of the sum of four hundred and one and 35/100 ($401.35) dollars, paid to him by the plaintiff. The auditor is now offering to deliver a deed conveying said property to the plaintiff.

“It is hereby stipulated that the foregoing is a true and correct statement of the facts concerned in this •case.”

From this it appears that the auditor followed the statutory requirements up to and including the decree of forfeiture of the Court of Common Pleas, on May 31,1946, but, thereafter, failed to comply with the provisions of Section 5750, General Code, as to any of "the forfeited land, including the particular parcel herein involved. Had he so complied with the law, he would have waited until the following November and then mad© a list of all forfeited lands.

Section 5750, General Code, provides:

“The several county auditors, annually between the first Monday of November and the first day of .January, shall make a list of all forfeited lands and lots in the county and shall sell the forfeited lands and lots agreeably to the provisions of this chapter. Lands and lots so forfeited, which, for any cause have not been so offered, shall be offered for sale under the provisions of this chapter, and if not sold for want of bidders, shall be again advertised and offered for sale by the county auditor, at the next subsequent sales by him made, under this chapter, until such lands and lots are sold.” Also, had he so complied with the provisions of Section 5750, General Code, the provisions of Section 5751, General Code, would have then become applicable and appropriate. The latter section provides :

“If the taxes, assessments, penalties, interest and costs due on the forfeited lands have not been paid on or before the fifteenth day of January of each year, the county auditor shall cause notice thereof to'be advertised once a week for two consecutive weeks prior to the first day of July in each year, in two newspapers as provided in Section 5704 of the General Code. Such notice shall state that if the taxes, assessments, penalties, interests and costs charged against the lands forfeited to the state for non-payment of taxes are not paid into the county treasury and the treasurer’s receipt produced therefor before the time specified in said notice for the sale of said lands, which day shall be named therein, each tract, so forfeited, on which the taxes, assessments, penalties, interest and costs remain unpaid will be offered for sale beginning on a date to be set by the county auditor, which date shall be not later than July first of each year, at the court •house in such county, in order to satisfy such taxes, assessments, penalties, interest and costs, and that such sale will continue from day to day until each of such tracts is sold or offered for sale.”

Having made his list between November and January, those parcels, the taxes for which had been paid -on or before the following January 15th, would be eliminated and the notice and sale provided for thereafter would have followed in an orderly manner. It was because the auditor failed to wait until the following November and then comply with the provisions of Section 5750, General Code, that the time schedule provided by the Legislature was thrown out of gear, ..and the provisions of Section 5751, General Code, became entirely unintelligible when applied to the actual procedure adopted by the auditor in this case.

In'passing, ‘it is to be noted that the provisions of •Section 5746, General' Code, in no way conflict with the time schedule adopted by the Legislature. That section provides:

“If the former owner of a tract of land or town lot, -which has been so forfeited, at any time before the .state has disposed of such land, or lot, shall pay into the treasury of the county in which such land or lot is .situated, all the taxes, assessments, penalties and interest due thereon at the time of such payment, the state shall relinquish to such former owner or owners, -all claim to such land or lot. The county auditor shall then re-enter such land or lot on his tax list, with the ■name of the proper owner. ’ ’

This simply gives the right to an owner anytime '.before sale to redeem. Section 5751, General Code, 'provides the limit beyond which the auditor is not re- • quired to delay the proceedings incident to sale of forfeited lands.

It appears, as stated before, that the, auditor relied upon the opinion of the Attorney General (Opinions of Attorney General [1944], 342, No. 6988).

That opinion has been carefully considered. It seems, however, that the net effect of same is to select one period of the time schedule as being merely “directory,” while others are considered “mandatory.”

A reading of all the sections of the chapter on forfeited lands (Sections 5744 et seq., General Code) develops a systematic and reasonable program for the ultimate sale of forfeited lands and the disposition of the proceeds of such sale. (See State, ex rel. Hecht, v. Zangerle, Aud., 148 Ohio St., 9, 12.)

No valid reason appears why- any factor in such time schedule should be ignored. The consequences in doing so are apparent in the instant case.

It is not the function of a court to question the wisdom of the Legislature in enacting valid laws. Courts can not write what they may consider better acts, nor can they ignore specific legislative provisions in order that disastrous results following acts of officers of the state, contrary to such provisions, may not result.

The hardship and inconvenience ensuing because the sales, including that involved here, are declared void, are not overlooked. It is to be deeply regretted. Such sales, however, were predicated upon procedure not only not authorized by law, but in direct conflict with specific provisions clearly outlining a course of conduct entirely reasonable and ensuring full justice to all concerned.

No reason appears in the record justifying the unwarranted precipitancy involved. The statutes indicate clearly that in the instant case the auditor should have waited until the November following May 31, 1946, then made up his list of “forfeited lands,” waited for those who might pay until January 15,1947, ' and then proceeded with his notice and sale.

It will be noticed that in Section 5751, General Code, the words “on or before .the fifteenth day of January of each year” (emphasis added) are used. It will also be noted that Section 5750, General Code, provides that forfeited lands offered for sale and not sold, shall be carried along, from year to year and offered until sold.- It, therefore, appears that the 15th of January is the clearing date for all forfeited lands listed in the previous November-January period. It is on that date “each year” the auditor is authorized to determine what forfeited lands are to be sold. In the November-January period he has made up his list of forfeited lands previously offered and not sold, and those forfeited prior to November in the current year, and on January 15th he is to eliminate those redeemed. What is difficult or unreasonable in requiring conformity to such time schedule? No sound reason appears for ignoring any part of it. The Legislature is-presumed to have had a valid reason for all the requirements which ultimately result in taking the property of one man and selling it to another.

One of the rights involved in the request for a declaration is that of the plaintiff to recover the price paid to the auditor for the parcel of land.

It seems that in such payment there could be no mistake of fact.. The plaintiff must be presumed to have known that the forfeiture of the land involved was decreed by the court on May 31, 1946. The land was offered for sale on June 12, 1946. Hence, it must have been apparent that there had been no compliance with the provisions of Sections 5750 and 5751, General Code, and the legality of such failure of compliance must have, therefore, raised a question of law and not of fact.

It is a rule of long standing that money paid under a mistake of law cannot be recovered. 31 Ohio Jurist prudence, 233; 40 American Jurisprudence, 856 et seq., Phillips, Exr., v. McConica, Guardian, 59 Ohio St., 1, 51 N. E., 445, 69 Am. St. Rep., 753; Raihvay Co. v. Iron Co., 46 Ohio St., 44, 18 N. E., 486; Moore, Admx., v. Farmers State & Savings Bank, 47 Ohio App., 10, 190 N. E., 42.

The application of that general rule to the instant predicament of the plaintiff presents a situation shocking to all sense of justice.

The basis for the rule is . stated in Railway Co. v. Iron Co., supra, at page 51 of the opinion:

‘‘ The principle which denies a recovery in this class of cases will be found to rest upon considerations of •general convenience, to which corporations as well as •natural persons are required to conform. Remedial justice is established to aid those who cannot aid themselves without the use of violence, in obtaining'what as a matter of right is their due. It does not invite litigation, and declines its assistance to those who voluntarily place themselves in the.situation of becoming suitors. The. Iron Company was at liberty by its agents to accede to the demand of the railroad company for the delivery of the goods on the subscription, or to decline to do so. It chose, with a full knowledge of the facts, to deliver the goods;.and there is no sound reason why it should be aided in a law-suit made necessary by its own' voluntary act, that would not apply with equal force to a natural person. ( Where there is no ignorance of the facts, or coercion,, it is said, in Glass Co. v. City of Boston, 4 Met., 181: ‘If the party would resist an unjust demand, he must do so at the threshold. The parties treat with each other upon .equal terms, and if litigation is intended by the party of whom the money is demanded, it should precede payment. If it were not so, the effect would be to leave the party who pays the money, the privilege of selecting Ms own time and convenience for litigation; delaying, it, as the case may be, until the evidence, which the other party would have relied upon to sustain his claim, may be lost by lapse of time and the various casualties to which human affairs are exposed.’ In some cases stress is laid upon the inconvenience it would be to the other party, who may receive the money as his own, and, acting upon that belief, so dispose of it as to make it exceedingly inconvenient, if not impossible, to repay it. Brisbane v. Dacres, 5 Taunt., 144, Gibbs J. 152; Clark v. Dutcher, 9 Cowan, 674, 684.”

And, it is stated in 40 American Jurisprudence, 857 r

“The rule that money paid under a mistake of law cannot be recovered as between individuals, although sometimes unjust in its operation, is based on expediency and public convenience, because it would render the administration of justice almost impracticable if parties litigant should be permitted to set up as matters of relief or defense that they were ignorant of the laW by which their transactions, dealings, and contracts were governed. It has often been said by judges and text writers that everyone is presumed to know the law, but it is quite obvious that this phrase is not to be taken in its literal significance, and that it means no more than is expressed by the maxim ‘ignorantia legis neminem excusat.’ Various other principles have been invoked in the application of the rule, but the best that may be said of it even as applied to individuals is that it is a handy rule to apply in those rare cases where the application of it prevents gross injustice.”

The result here presented is that the state still owns the land forfeited to it and has possession of thp plaintiff’s money, paid in good faith upon the presumption • that a public officer, representing the state in the sale of its land, was doing so in full compliance with all legal requirements. The officer, relying upon the prosecuting attorney and the opinion of the Attorney General, performed a void act, the result of which was to deprive the plaintiff of his money, without giving him anything in return therefor.

It is true that the plaintiff voluntarily paid the purchase price, that he is presumed to know the law, that the opinions upon which the auditor relied were based upon erroneous assumptions involving the effect of the statutes involved, that no fraud was practiced upon plaintiff, and that there could be' no mistake of fact. On the other hand, the plaintiff is in no way responsible for any loss which the state may suffer in •connection with these.void sales, and any “inconvenience ’ ’ that may follow is due to the erroneous assumptions of the officers of the state. • Certainly, it cannot be supposed that any equitable or even legal principle would justify the refusal of the agents of the state to return to plaintiff the purchase price paid under -such circumstances.

Therefore, although it must be determined that the sale of the forfeited land to plaintiff by the auditor was ineffective to transfer the title of the state therein to plaintiff, it is determined also that the plaintiff upon prompt demand being- made upon the auditor is •entitled to the return of the purchase price paid by plaintiff, but without any interest for the retention of such purchase price.

Judgment accordingly.

Ross and Hildebrandt, JJ., concur in the syllabus, opinion and judgment.

Matthews, P. J.,

concurring. I concur in the conclusion.

As to the right of the plaintiff to recover the amount which he paid to the auditor, it seems to me it is sufficient to say that the money was paid to obtain a title, evidenced by a deed wbicb bas not been delivered, and wbicb tbe auditor cannot legally execute or deliver. Therefore, there has been a total failure of consideration. That is sufficient basis for recovery.


author: 'By the Court.

text:
    Breithaupt, Appellee, v. McGinnis et al., Appellants.
    (No. 3949
    Decided February 5, 1947.)

      Mr. Daniel E. Bevis, for appellee.

      Mr. Henry A. Beinhard and Mr. Henry L. Holden, for appellants.
   'By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franldin county, Ohio. The notice of appeal states that “said appeal is on questions of law and law and fact.” Counsel have'considered the appeal as one on questions of law and we so regard it.

The plaintiff, appellee herein, brought an action to recover from defendants, appellants herein, the balance due on an oral agreement to construct an addition to, and for remodeling the residence owned by the defendants, and to foreclose a mechanic’s lien on the property. In his amended petition the plaintiff alleged that he was to be compensated on the basis of labor performed and material furnished; that he was to receive $1.25 per hour for his services as a carpenter, and for his services in preparing plans, purchasing materials and superintending the work, a commission of ten per cent of the total cost of labor and materials necessary to complete the work. Plaintiff claimed there was a balance of $844.50 due him under the contract.

The defendants filed an answer and cross-petition. In their answer they pleaded a general denial, and in their cross-petition the defendants claimed damages, alleging that the plaintiff entered into an oral contract -to construct the building and remodel the residence for the sum of $4,392; that the total cost greatly exceeded that amount; that the plaintiff failed to complete the work; and that a part of the- work done by the plaintiff was defective which required an additional expenditure on their part, all to their damage in the sum of $2,500.

The case was tried to the court without the intervention of a jury. The trial judge made a' personal inspection of the premises. The trial court found the defendants were entitled to damages in the amount of $300, and that after deducting the $300 from the plaintiff’s claim he was entitled to judgment in the sum of. $544.50. The court found that amount to be a valid lien on the premises and ordered the lien foreclosed in default of payment of the judgment.

The defendants assign as error:

(1) That the finding of the court is against the manifest weight of the evidence;

(2) That the,finding of the court is not sustained by sufficient evidence; and

(3) That the finding of the court is contrary to law.

The undisputed evidence shows that ■ the plaintiff and defendants did enter into an oral agreement whereby the plaintiff agreed to construct a building adjacent to the residence owned by the defendants and to make certain changes in the old structure which changes were required to connect the two structures; that as the work progressed bills for material and labor claims were presented to Mrs. McGinnis who promptly paid them by check; that during the progress of the work substantial changes were made in the plans for the new structure and additional improvements were made in the old structure which had not been considered by the parties at the time the agreement was entered into; that as the work neared completion the defendants had paid approximately $9,000 for labor and material; that the defendants refused to make further payments; and that thereupon the plaintiff filed his lien and shortly thereafter brought this action.

The plaintiff testified that the parties agreed the ■defendants should assume the position of contractor, pay for all material furnished and labor performed and pay the plaintiff his customary ten per cent commission for his services in preparing plans, purchasing the materials and superintending the work. In support of that contention the plaintiff points ont that the, defendants did pay bills for material and labor as the work progressed, and agreed to pay the final labor bill presented in the amount of $303 if the plaintiff would repair a leak.

On the other hand, the defendants testified that the plaintiff agreed to build for an agreed price' but were rather uncertain as to the exact price, sometimes claiming it to be $4,392 and at other times they testified that they did not expect the price to exceed $5,000 or $5,500. In support of their contention they introduced the application filed by Mrs. McGinnis with the War Production Board showing the estimated cost to be $4,392. The plaintiff testified that this amount was hurriedly estimated and was not intended by the parties to cover the total cost of construction, but was only at best an estimate of the cost. The plaintiff contends further that after the application was presented to the War Production Board the plans for the new structure were changed and substantial improvements were made in remodeling the old structure, the cost of which Avas not embraced in the estimate. The defendants produced a receipt which reads as follows:

“Jan. 20,1944:

“Received from Olive W. McGinnis

One Hundred........... Cash............Dollars for ................ Owe $303 ...............$100

“Edw. Breithaupt.”

Also a memorandum was introduced as follows:

“Ed. Breithaupt $353.00

“Pd. Bohanan Plumber 50.

“ 403.00

“ 100.

“ 303.”

These exhibits are presented by the defendants to refute the claim of the plaintiff that there was due him at the completion of the work the sum of $844.50. The plaintiff testified that on January 20, 1944, the balance due of $303, shown by the receipt, represented the bal-' anee then due for labor only, and that thereafter he did more work on the job increasing the labor claim to $344.50. When the work was completed he entered on his books and added to the labor claim the sum of $500 for commission for his services in preparing the plans, furnishing material and superintending the work.

The evidence in this case is clearly and definitely in conflict. The trial judge was required to weigh the evidence and determine which witnesses were most worthy of belief and in the light of human experience determine which items of testimony were the most reasonable and plausible. The trial court found the conduct of the defendants was inconsistent with their contention that the plaintiff agreed to build for a definite price. The court was careful to point out that the defendants paid promptly material and labor claims while the work was progressing, in an amount far in excess of the price which they claim had been agreed upon, and that the defendants did so without protest. Furthermore, the court found, and we aro convinced that the evidence supports the finding of the trial court, that the defendants acquiesced in and approved of all changes in the plans, with respect to both the new and old structures.

A reviewing court will not reverse the- judgment of the trial court on the weight of the evidence unless the judgment in the light of the evidence adduced is of such a character as to shock the conscience of the court to permit it to stand. A judgment should not be reversed if it appears on the face of the record that different minds could have reasonably arrived at different conclusions or unless it appears that a manifest injustice will result to allow the judgment to stand.

See Finney v. Morehouse, 27 Ohio App., 499, 161 N. E., 293; Kaiser v. Whetstone, 33 Ohio Law Abs., 432, 35 N. E. (2d), 465, decided by the Second District Court of Appeals. See, also, 2 Ohio Jurisprudence, 752, Section 663 and page 761, Section 667, and authorities •cited thereunder.

After a consideration of all the evidence the court •concludes that different minds might have reasonably arrived at different conclusions in regard thereto. The trial court resolved the issue in favor of the plaintiff. /There is ample evidence to support the judgment.

Accordingly, we find the judgment of the trial court is not against the manifest weight of the evidenceis sustained by sufficient evidence; and is not contrary to law.

Finding no prejudicial error in the record, the judgment of the trial court is affirmed. '

Judgment affirmed.

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


author: Montgomery, J.

text:
    The State, ex rel. Heck, Pros. Atty., v. Ahlers.
    (No. 1921
    Decided December 31, 1946.)

      Mr. Mathias II. Heclc, prosecuting attorney, and Mr. Albert J. Dwyer, for relator.

      Mr. Herbert D. Mills, for respondent.
   Montgomery, J.

One Elmer F. Tinnerman, a duly elected and acting county commissioner of Montgomery county whose term of office would, have expired January 5, 1947, died August 19, 1944.. One Harry E. Ullery was thereafter duly appointed and commissioned to serve until his successor should be elected and qualified. No successor was elected at the November 1944, general election.

In the 1946 November election the Board of Elections of Montgomery county submitted the official ballot containing three columns, one for the Democratic ticket, one for the Republican ticket, and one for the Social Labor ticket. On the latter there appeared candidates for governor, lieutenant governor and United States senator. All the remainder of that third ticket was blank.

The Democratic and Republican tickets showed nominees for all offices to be voted upon, excepting only “county commissioner (unexpired term).” These printed words appeared upon those two tickets, but no names appeared following this printed caption. At that election, however, certain people were voted for on each of the tickets by the names being written in and duly marked with an “X.” John F. Ahlers received the highest number of votes of any person whose name was written in and he was declared elected. He qualified and has been serving as county commissioner. This action was brought to test his right to hold that office, the petition averring that Ahlers is usurping the functions of the office, and the prayer of the petition is that he be ousted therefrom..

The sole issue presented by the petition, the answer and the agreed statement of facts is whether Ahlers was duly elected to that office and entitled to hold the same.

It is the contention of the relator that “the legislative enactments concerning the preparation and use of the official ballot at the general election having made no provision for writing in names on the official ballot under the conditions and circumstances herein stated, * * * that the writing in of names in the space provided for voting for filling the unexpired term for county commissioner which contained the name of no avowed candidate was illegal.”

It is conceded by all counsel that there is no provision in the statute specifically authorizing such procedure and counsel for the relator contend further that since there is a statutory provision, to wit, Section 4785-87, General Code, authorizing such writing in of names at a primary election and at no other election, it would follow that the Legislature did not intend that such he done at a general election.

Counsel for relator frankly state that they rely on the decision of the Supreme Court as announced in the case of State, ex rel. Sagebiel, v. Board of Elections of Montgomery County, 144 Ohio St., 162, 57 N. E. (2d), 661, which action involved this same vacancy due to the death of Tinnerman, and in which it was sought by the relator in that action to require the board of elections to print a separate ballot for the general election of November 1944, containing a space for the writing-in of candidates for both major political parties for this unexpired term.

As we construe the holding of the Supreme Court in that case, however, it went no further than to hold that there was no duty resting upon the board of elections to prepare and submit such separate ballot. It certainly did not hold that if the same had been done, or if names had been properly written in and marked, that the one receiving the highest number of vote’s would not have been duly elected.

However, there is the plain provision contained in Section 10, General Code, in this language:

“When an elective office becomes vacant, and is filled by appointment, such appointee shall hold the office until his successor is elected and qualified. Unless otherwise provided by law, such successor shall be elected for the unexpired term at the first general election for the office which is vacant that occurs more than thirty days after the vacancy shall have occurred. ’ ’

And consistent with that section is Section 2397, General Code, which provides what shall be done in the event of a vacancy in the office of a county commissioner occurring more than 30 days before the next general election for state and county offices.

Certainly the language contained in Section 10, General Code, is mandatory, governing such a situation as now confronts us and all similar situations. There is in it, however, no provision as to how the ballot shall be prepared for such a situation, and as conceded by-counsel and heretofore stated, there is no other statutory provision governing'this matter.

In our judgment, even if there had been no printing upon the ballot of the name of this particular office, if the names of candidates should have been written in with a clear designation for the office for which they were being voted upon, and these names should have had prefixed to them the required “X,” the one receiving the highest'number of votes would have been duly elected.

Considerable comment is made about the failure to include the Social Labor party ticket by such printing above the blank spaces. But by the same line of reasoning we would hold if the issue were raised that on this Social Labor ticket voters might have written in and marked the names of persons for each and every office to be filled at that election and that such voting and marking would have been valid and legal.

Significant is the language of Judge Stephenson in concluding his opinion in the case of State, ex rel. Harsha, v. Board of Elections of Scioto County, 125 Ohio St., 235, on page 238, 181 N. E., 16, where he says:

“And the laws relative to filling vacancies in elective -offices will be construed so as to give the people the opportunity to choose at the earliest possible time the successor to an official they have previously chosen.”

There may be a judgment for the respondent and the petition of the relator is dismissed.

Judgment for respondent.

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

Montgomery, J., of the Fifth Appellate District, sitting by designation in the Second Appellate District.