author: Guernsey, P. J.

text:
    The State, ex rel. Solomon, v. Bushong, Supt.
    (No. 975
    Decided May 16, 1949.)

      Messrs. Durbin <& Navarre, for petitioner.

      Mr. Herbert 8. Duffy, attorney general, and Mr. Walter Ii. Hill, for respondent.
   Guernsey, P. J.

Mas Solomon filed his petition for a writ of habeas corpus in this court, in which petition he alleges he is unlawfully restrained of his liberty by R. E. Bushong, superintendent of Lima State Hospital.

He alleges further that he was committed to the hospital and the custody of Bushong under the provisions of Sections 13451 19, 13451-20, 13451-21, 13451-22, 13451-22a (121 Ohio Laws, 443) and 13451-23 (118 Ohio Laws, 690), General Code, formerly known as the Ascherman Act.

In his petition he bases what right he may have to be released from such restraint, solely upon the ground that such statutory provisions are unconstitutional for the following reasons:

1. That they are a violation of the Constitution of the United States of America.

2. That they are a violation of the Constitution of the state of Ohio.

3. That they limit the right of the writ of habeas corpus.

4. That they violate and are contrary to previous existing statutes of the state of Ohio.

5. That they deprive a defendant of due process of law in that:

(a) A defendant may be restrained of his liberty for a longer term than meted out by a court of law.

(b) They define otherwise illegal hearsay evidence as prima facie evidence under certain conditions. '

(c) They delegate legislative and judicial authority to persons or commission's not authorized by law.

(d) They limit the time of reapplication for release, under certain conditions.

In his return to the writ of habeas corpus, Bushong represents that be has Max Solomon in his custody and has had him in his custody since February 3, 1948, by virtue of a certain mittimus issued by the Court of Common Pleas of Cuyahoga County, a copy of which mittimus is attached to the return and by reference made a part thereof.

The materia] part of the mittimus above mentioned is a copy of a journal entry of the Common Pleas Court of Cuyahoga County, which entry reads as follows:

“The State of Ohio Cuyahoga County
“State of Ohio v. Max Solomon
In the Court of Common Pleas.
January Term, 1948
Indictment for felonious assault with counts.
No. 57,566.
“January 29th, 1948.
“Now comes the prosecuting attorney on behalf of the state of Ohio and the defendant being brought into court in custody of the sheriff; thereupon, the defendant retracts his plea of not guilty heretofore entered and for plea to said indictment saith he is guilty.
“The defendant, herein having been heretofore referred to the psychiatric clinic for examination and report, this cause came on for hearing before this court under Section 13451-20 of the General Code to determine whether or not said defendant, Max Solomon, who is awaiting sentence on the charge of felonious assault with count, under Section 12423-1 of the Genera] Code of Ohio, providing for imprisonment in the penitentiary for not less than one (1) yeai*, nor more than ten (10) years, is mentally ill.
“The court having referred the defendant to the psychiatric clinic for examination into the mental condition of the defendant, the said clinic having filed its report with the court and a certified copy of same having been served on the said defendant as provided by law, upon hearing and full consideration of the clinic report and other evidence, the court finds that the said defendant, Max Solomon, is mentally ill and a mentally deficient offender, as defined in Section 13451-20, General Code.
“It is, therefore, ordered, adjudged and decreed that the said defendant, Max Solomon, is a mentally deficient offender as defined in Section 13451-20 of the Genera] Code, and defendant is sentenced to the Ohio State Penitentiary; in accordance with a departmental order of the Department of Public Welfare of the state of Ohio, the defendant is ordered committed indefinitely to the Lima State Hospital, during the continuance of which indefinite commitment, the execution of the sentence to the Ohio State Penitentiary is suspended as provided under Section 13451-20 of the General Code of Ohio.”

On the trial of this case no evidence was introduced except testimony offered by the petitioner as to the definition of certain words and phrases used in the statute in question, which did not in any respect vary from the definitions of such words and phrases incorporated directly or by reference in the statute.

In his brief filed herein the petitioner makes the contention, not specified in his petition, that he is entitled to be released from custody for the reason that the Common Pleas Court, in its journal entry of commitment having found the petitioner was mentally ill, was without authority, at the same time and in the same entry, to act upon the petitioner’s plea of guilty, find him guilty and sentence him to indefinite commitment.

We shall first consider these contentions and then consider, in the order in which they appear in the petition, the reasons specified by the petitioner in his petition, for claiming the statutes under which he was •committed are unconstitutional.

As will be noted from the return of Bushong, the petitioner was convicted of the offense prescribed in Section 12423-1, General Code.

Under the provisions of Section 13451-20, General Code, the trial court must refer for examination, all persons convicted under Section 12423-1, General Code, as well as certain other designated sections of the General Code, to the department (Department of Public Welfare) or to a state facility designated by the department, or to a psychopathic clinic approved by the department, or to three psychiatrists.

Section 13451-20, General Code, among other things, further prescribes:

“The department, clinic, or psychiatrists shall make a careful examination of such person and furnish to the court a report in writing of its or their finding as to the mental condition of the person at the time of examination, together with such recommendations, suggestions, and opinions as may be helpful to the •court, which report shall also contain the names and addresses of the parties making the examination. Such report shall be a public record and become a part of the files in the case but not be spread at large upon the journal. A certified copy of such report shall be served upon such person and his attorney of record within three days after the filing thereof with the court. If any psychiatric examiner or psychologist not on the staff of any such psychiatric clinic or the department or a state facility designated by the department is so appointed, the cost thereby incurred shall be determined by the court and allowed and taxed as costs and paid in the same manner as witness fees in criminal cases.
“The court shall conduct a hearing thereon not earlier than ten days nor later than thirty days after the service of such copies of the report. Both the state and such person or his guardian or next friend shall have the right to appear in person or by counsel at such hearing, to subpoena, examine and cross-examine the examiners making the report regardless of the part of the state in which the examiners may live, and to produce witnesses, both lay and expert, as to the mental condition of such person. In the event and to the extent that no subpoenas are issued for the examiners to appear at the hearing, the report or such part of it as was prepared by the examiners for whom no subpoena was issued, shall constitute prima facie evidence.
‘ ‘ If upon consideration of such report and such other evidence as shall be submitted, the court shall find that such person is mentally ill as defined in Section 1890-19 of the General Code or is a mentally deficient offender or a psychopathic offender as defined in Section 13451-19 of the General Code, the court shall enter such finding on the records and shall impose the appropriate sentence for the'offense of which the person was convicted; and at the same time the court shall enter an order of indefinite commitment, of such person to the department of public welfare, during the continuance of which, the execution of sentence shall be suspended. Thereupon such person shall be sent to an appropriate institution designated by the department. * * * Every order of indefinite commitment hereunder shall show the offense of which such person was convicted and the minimum and maximum penalties therefor. Certified copies of said order and the reports of the examiners, unless submitted by the department, shall be sent to the department. Every order of indefinite commitment shall constitute a final order. The provisions of law relating to motions for new trial, bail and appeal on questions of law shall be applicable to such cases.
“Any finding under the provisions of this act that a person is mentally ill, a mentally deficient offender, or a psychopathic offender, shall constitute a final order.” (121 Ohio Laws, 444.)

Section 1890-19, General Code, prescribes:

“ ‘Mental illness,’ ‘mentally ill,’ ‘mental disease,’ ‘mental disorder,’ shall mean an illness which so lessens the capacity of the person to use self-control, judgment and discretion in the conduct of his affairs and social relations as to make it necessary or advisable for him to be under treatment, care, supervision, guidance or control. The terms shall be construed to include ‘lunacy,’ ‘unsoundness of" mind,’ ‘insane,’ and also cases in which such lessening of capacity for control is caused by such excessive addiction to narcotics, sedatives or stimulants as to make it necessary for him to be under treatment, care, supervision, guidance or control. * * *” (121 Ohio Laws, 430.)

Section 13451-19, General Code, among other things, prescribes:

“When used in this act, unless the context otherwise requires:
“(1) The term ‘mentally deficient offender’ shall mean any person who is adjudged mentally deficient or feeble-minded, as this term is defined in Section 1890-97 of the General Code, who exhibits criminal tendencies and who, by reason thereof is a menace to the public.” (121 Ohio Laws, 443.)

Section 1890-97, General Code, prescribes:

“The term ‘mentally deficient’ or ‘feeble-minded,’ as used in this act, refers to any person whose intellectual development has been retarded from birth or from an early age and whose intellectual and social capacity is below normal for his chronological age to-such an extent that he lacks sufficient control, judgment and discretion to manage himself and his affairs, and who by reason of such deficiency, for his own welfare or the welfare of others of the community, requires supervision, guidance, care or control.” (121 Ohio Laws, 440.)

A person has sufficient mentality to be tried for a-criminal offense if he is of sufficient soundness of mind to understand and appreciate the nature of the charge against him, to comprehend his situation, and is mentally capable of furnishing his counsel the facts essentia] to the presentation of a proper defense. State, ex rel. Townsend, v. Bushong, Supt., 146 Ohio St., 271, 65 N. E. (2d), 407.

While the copy of the journal entry incorporated in the return, by virtue of which the petitioner is held in custody, discloses that the court found “that the said defendant, Max Solomon, is mentally ill and a mentally deficient offender, as defined in Section 13451-20, General Code,” the adjudication of the court is “That the said defendant, Max Solomon, is a mentally deficient offender as defined in Section 13451-20 of the General Code.”

It will also be noted that “mental illness,” as defined in Section 1890-19, General Code, is used in the-broad sense as comprehending all types of mental diseases and mental deficiencies.

The finding of the court in its journal entry, therefore, constitutes a general finding that the petitioner was mentally ill, comprehending any type of mental illness or mental deficiency, and a specific finding that the petitioner was a mentally deficient offender, and the adjudication in conformity with the provisions of Section 13451-19, General Code, that the petitioner was a mentally deficient offender, definitely fixes the status of the petitioner as a mentally deficient offender, within the purview of Section 13451-20, General Code, irrespective of the prior finding that he was mentally ill.

There are many types and degrees of mental illness or insanity, and a “mentally deficient offender,” as defined in the above-quoted statutes, may be, and, in the absence of an adjudication to the contrary, is presumed to be, sufficiently sound in mind to understand and appreciate the nature of the charge against him, and to comprehend his situation, and to be mentally capable of furnishing his counsel the facts essentia] to the presentation of a proper, defense, and this presumption attended him at all times during his arraignment, plea, trial, and sentence.

For the foregoing reasons, petitioner’s additional contention, made in his brief but not specified in his petition, is without merit.

Reasons 1, 2, 3 and 4 assigned in the Petition, eor claiming the Statutes unconstitutional

Reasons 1 and 2 constitute merely genera] statements fhat the statutes violate the Constitution of the United States and of the state of Ohio, but were apparently intended to prescribe that such violation is in the particulars mentioned in reason 5 and will, therefore, be considered and discussed under the beading of reason 5, in the same manner as if reason 5 charged the statutes violated the United States and state Constitutions and deprived the petitioner of due process of law in the particulars specified under this heading.

Reason number 3 will be considered and discussed in connection with reason number 5 (b).

Reason number 4 simply charges that the statutes in question violate and are contrary to previous existing statutes which, if true, would not constitute a ground for holding them unconstitutional.

Reason 5 (a)

Sections 13451-22 and 13451-22a, General Code, provide as follows:

“Sec. 13451-22. Whenever a person committed under the provision of Section 13451-20 of the General Code has recovered or his condition appears to have improved to such an extent that he no longer needs the special custody, care or treatment of such institution, the superintendent of the institution shall report the facts to the commissioner of mental hygiene, who may order such further examination of the inmate as may be advisable. If satisfied that the inmate has recovered or is sufficiently improved to justify such action, the director of public welfare upon the written recommendation of the commissioner, shall issue one of the following orders:
“ 1. If the person has been confined for a period less than the maximum sentence for the offense of which he was convicted, the order shall terminate the indefinite commitment. Thereupon the sentence which, was suspended under the provisions of Section 13451-20 of the General Code shall forthwith go into effect and the person shall be transferred to the appropriate penal or reformatory institution. Thereafter he shall be subject to tbe jurisdiction of tbe pardon and parole commission as provided by law. For the purposes of reckoning the eligibility of such person for parole or discharge, the time of confinement under an order of indefinite commitment in accordance with the provisions of Section 13451-20 of the General Code, shall be counted as time served with good behavior under' the applicable sentence.
“2. If the person has been confined for a period equaling or exceeding the maximum sentence for the offense of which he was convicted, the order shall provide that the person be placed on trial visit under supervision. If, after a suitable period of supervision on trial visit, the director, upon the written recommendation of the commissioner, is satisfied that such person no longer requires supervision, the indefinite commitment and the sentence suspended under the provisions of Section 13451-20 shall be terminated and such person shall be discharged from the legal control and custody of the department of public welfare.'’ (121 Ohio Laws, 446.)
“Sec. 13451-22a. At any time after the expiration of the period equivalent to the maximum sentence for the offense of which he was convicted and sentence suspended, any person committed under the provisions of this act may make application, personally, by counsel or by guardian or next friend, for his release to the court by which he was committed. The court shall grant a hearing upon such application, at which hearing it shall give consideration to reports and recommendations of the department of public welfare and to such evidence as the applicant may present. No subsequent application may be heard upon behalf of any person whose application is denied, except by leave of court, within one year after the date of the last pro-ceding hearing. If, upon any hearing provided by this section, the court finds that such person is not then mentally ill, a mentally deficient offender or a psychopathic offender, as the case may be, the court shall order the department of public welfare to discharge such person and the sentence suspended under the provisions of Section 13451-20 shall be terminated.” (121 Ohio Laws, 446.)

It will be noted that under the provisions of such sectioiis a person committed pursuant to the provisions of Section 13451-20, General Code, and not released prior to the expiration of the period equivalent to the maximum sentence for the offense of which he is convicted, through proceedings had by the superintendent of the institution to which he is committed, the commissioner of mental hygiene, and director of public welfare, pursuant to the provisions of Section 13451-22, General Code, may, pursuant to the provisions of Section 13451-22a, be retained in the custody of the institution to which he is committed, until after the expiration of a period equivalent to the maximum sentence for the offense of which he was convicted, and may then be released only by the court making such commitment, upon the terms and conditions set forth in Section 13451-22a, General Code.

The latter provision has the effect of vesting in the court making the commitment, exclusive continuing jurisdiction of the release of the person committed, to be exercised only in the manner prescribed in such section.

Petitioner in this case, as shown by the return of Bushong, has not been in custody for a period less than the minimum and much less than the maximum of the sentence for the offense of which he was convicted.

Whether he may be released prior to the expiration of such maximum is solely within the discretion of the public officers designated in Section 13451-22, Genera] Code, to be exercised in the manner therein prescribed, and such discretion is not subject to control by the courts.

The question as to whether the statutes are unconstitutional by reason of prescribing that a person committed may, under the conditions specified therein, be retained in custody subsequent to the expiration of a period equivalent to the maximum sentence for the offense of which he was convicted, as well as the question as to whether the committing court may, under the Constitution, retain jurisdiction to order the release of a person committed, upon the terms and conditions set forth in Section 13451-22a, to the exclusion of another court exercising jurisdiction in habeas corpus, can be raised and determined only after the expiration of a period equivalent to the maximum sentence for the offense of which the person committed was convicted, since until the expiration of such period any right he may have to be released upon the expiration of such period is not, prior to such time, affected or infringed by such provisions.

As the petitioner has not been in custody for such period, he is not now in position to question the constitutionality of the statutes in the respects mentioned.

Reason 5 (b)

Under the provisions of Section 13451-20, General Code, at the hearing on the report of the examiners appointed by the court the offender, or his guardian or next friend has the right to appear in person, or by counsel, and to subpoena, examine and cross-examine the examiners making the report, regardless of the part of the state in which the examiners may live, and to produce witnesses, both lay and expert, as to the mental condition of such person, and it is only in the event and to the extent that no subpoenas are issued for the examiners to appear at the hearing, the report or such part of it as was prepared by the examiners for whom no subpoena was issued, shall constitute prima facie evidence. As such reports constitute prima facie evidence only in the event the offender fails to avail himself of the rights preserved to him by the statute to subpoena, examine and cross-examine the examiners making such reports, his constitutional rights are fully preserved and protected. Such provision constitutes a reasonable and proper exercise of legislative power, and does not violate either the state or United States Constitution.

Reason 5 (c)

The authority delegated to the superintendent of the institution to which the offender has been committed, and the commissioner of mental hygiene and the director of public welfare is limited to the time the offender is restrained of his liberty during the period of his commitment and not beyond the expiration of the period equivalent, to the maximum sentence for the offense of which he was convicted, and is, therefore, ministerial and not. legislative or judicial in character, and the delegation of such authority, does not violate any constitutional provision.

Reason 5 (n)

Whether the statutes are unconstitutional by reason of limiting the time of reapplication for release, under the conditions set forth in Section 13451-22a, General Code, is subject to determination only after the expiration of the period equivalent to the maximum sentence for the offense of which the petitioner was convicted. As the petitioner has not been in custody for such time, such question cannot be raised or determined. -

While it is established by the decision in the case of Yutze v. Copelan, Chief of Police, 109 Ohio St., 171, 142 N. E., 33, 32 A. L. R., 1048, that habeas corpus will not lie to test the constitutionality of a statute or ordinance, in favor of the one who has been convicted, where the criminal court wherein conviction was obtained had jurisdiction or power to determine the question of constitutionality, the constitutional questions raised in the instant case relate to.statutes providing for the commitment of the offender, and not to the statutes under which the conviction was obtained, aiid some of them are of such a character that they could not be raised and would not be subject to review on appeal upon questions of law from the judgment of conviction, so we have passed upon them in this case.

For the reasons mentioned, the petitioner will not be discharged on the writ of habeas corpus issued herein and will remain in the custody of Bushong, superintendent, under the above-mentioned commitment.

Judgment accordingly.

Middleton and Jackson, JJ., concur.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    Smith et al., Appellees, v. Volk et al., Appellants.

      (No. 1977
    Decided December 29, 1948.)

      Messrs. Marshall, Harlan dé Smith, for appellees.

      Mr. M.J. Gilbert, for appellants.
   By the Court.

This is an appeal on questions of law and fact from a judgment of the Common Pleas Court of Montgomery county, granting a permanent injunction against the defendants in the use of their .property. The action involves the legal effect of deed restrictions. The matter was submitted to this court •on (he record taken in the trial court.

In 1921 Adolph W. Smith, one of the plaintiff's, purchased a tract of land consisting of approximately 68 acres situated several miles north of the corporation line of the city of Dayton. In 1925 Smith filed in the recorder’s office of Montgomery county, a plat which showed that a substantial portion of the 68-acre tract had been subdivided into building lots. The plat provided for and dedicated a portion for street purposes. The plat did not provide for building or use restrictions. The 68-acre tract was known as “Broad Acres’’ and that part which was subdivided into building lots was known as “Broad Acres Plat.” -Shortly there after the lots were advertised and a number of them were sold. The necessary utilities, such as gas, water, electricity and sewers were installed by Adolph W. Smith.

In the deeds from Adolph W. Smith to the original grantees on lots now owned by 28 plaintiffs herein, there were restrictions which provided that, no building shall be erected on the lots other than one single house to be used exclusively for residence and dwelling purposes; that all dwellings shall conform to adjoining property in the immediate neighborhood as lo setback and exterior design as is practicable; and that, ail plans for such residences are to be prepared by architects of known ability and submitted to the grantor for his approval. In deeds to the original grantees on lots now owned by nine plaintiffs herein there were restrictions which provided that uo building shall be erected other than one single house to be used exclusively for residence and dwelling purposes and to cost not less than $12,000; also restrictions against the erection of a double house, duplex or apartment. These deeds contained other restrictions similar to those mentioned in the first group. In the deeds to original grantees on lots now owned by three of the plaintiffs herein the restrictions were the same as in the preceding group and also contained a provision that the covenants shall severally attach to and run with the land.

None of the original deeds by Adolph W. Smith contained any covenant by the grantor that similar restrictions would be imposed on subsequent conveyance of lots in the subdivision or of the acreage in the tract.

In 1942 Adolph W. Smith sold to Willard C. Moore and Evelyn V. Moore approximately 13 acres of that portion of the original 68-acre tract which had not been subdivided into building Tots, the deed containing the same restrictions as were contained in the deeds to the original grantees on lots now owned by 23 of the plaintiffs as above first mentioned. On August 11, 1945, the Moores sold by contract 8 acres of this tract, to the defendants, Chris Volk and Ida Volk, and on February 9, 1946, conveyed the property to the Volks by deed. Both the contract and the deed contained the provision, “subject to all restrictions of record.”

An old barn stood on the 8-acre tract purchased by the defendants. The building had been used as a barn for many years and sometime prior to the purchase by the Volks it had been used to shelter horses, cows and equipment. The value placed on the barn by several witnesses was between $1,000 and $3,000. Immediately after taking possession in August 1945, the Volks began to make changes on the interior and exterior of the barn. The defendants expended approximately $12,000 in converting the barn into a building suitable for tlie operation of a social or night club which the defendants have conducted on the premises since 1946. In converting the building, the defendants removed the bins and stalls, cemented the entire basement, installed a ceiling over the basement and finished the interior thereof in knotty pine; a ceiling was placed above the main floor level and the interior was finished in knotty pine; additions to the building were constructed which provided for rest rooms, toilets and an entrance way. The necessary utilities, such as gas, water, electricity and sewers were installed and connected with the utilities formerly installed by Adolph W. Smith for the use of all property owners on the tract. The building is equipped with tables, chairs and necessary kitchen conveniences for preparing and serving food and drinks to. persons using the building for club or social purposes. Dance music and noise of patrons and their automobiles, coming and going, are a constant source of annoyance to residents on the plat.

The defendant, Chris Volk, admitted that he did not examine the record title of the property at the time of the purchase or at any time prior to the delivery of the deed. However, the overwhelming weight of the evidence shows that Moore at the time of the pur chase informed Volk that only single residences could be erected on the property. During the time alterations were being made on the barn residents of the plat informed Volk that his property was restricted to single residences. Volk nevertheless continued over a period of six months or more to convert the building as planned, although threatened with litigation if he persisted with his plans. The action was instituted on April 5,1946.

Two separate and distinct causes of action are alleged in the petition. In the first cause of action Adolph YV. Smith, the original owner of the 68-acre-tract designated as “Broad Acres” and the ailotter of the plat, is sole party plaintiff. Adolph W. Smith, still retains ownership of a number of lots in the subdivision and seeks to enforce the restrictions imposed by him on the lands owned by the defendants and to-enjoin the violation thereof. In the second cause of action Adolph W. Smith, together with 31 owners of lots in the subdivision on which restrictions are imposed similar to the restrictions in the deed from Smith to Moore, join as party plaintiffs for themselves and on behalf of all other lot owners in “Broad-Acres Plat,” to enforce restrictions imposed upon defendants’ land, which they allege were imposed for their benefit, and to enjoin violation of such restrictions.

The evidence shows that the defendants never submitted plans for the conversion of the barn to Adolph W. Smith for his approval and such plans were not prepared by an architect of known ability.

The greater portion of “Broad Acres” was rolling and wooded and the topography was such that it could be easily developed as a highly restricted residential area. It was the purpose of the allotter to impose restrictions requiring the building of well designed and costly residences on large and attractive building sites.. The better section of the tract was subdivided into building lots. The acreage, which was not subdivided, was not so well adapted to such development, the greater portion of it being low and flat. A part of the acreage was set aside as a community recreation park and so appears on the plat and tract as advertised for the purpose of sale. .However, the recreation. park was never developed and this acreage was later sold to Moore, who in turn sold a part of the area so purchased to the Volks.

The evidence clearly shows that the restrictions in the deed to Moore were imposed both for the benefit of the grantor, Adolph W. Smith, who still retained ownership in a number of lots on the plat, and other owners of lots on the plat. The owner, Adolph W. Smith, had a right to impose such restrictions on the use of the property sold, so long as such restrictions were reasonable and not against public policy. Adolph W. Smith was the original owner of the entire tract and treated it as one parcel and in the development of the tract clearly manifested a purpose to protect, and benefit both the owners of lots on the subdivision and owners of the acreage not subdivided. He was a common grantor to all property now owned by the parties plaintiff and the defendants.

The defendants had constructive notice of the restrictions imposed on the land which they purchased since such restrictions were in their chain of title. The defendants are bound by such restrictions. Hills v. Graves, 26 Ohio App., 1, 5, 159 N. E., 482; Dales v. Albrecht, 11 Ohio App., 368, 370; Davidson v. Buckeye Homes, Inc., 37 Ohio Law Abs., 570, 11 Ohio Supp., 54; Hanley v. Esposito, 7 Ohio Law Abs., 261; Cooper v. Sanders, 30 O. L. R., 435; 26 Corpus Juris Secundum, 561, Section 167. Notice of restrictions imposed on the land purchased would not necessarily be sufficient to charge the purchaser with notice that like restrictions were contained in the deeds to other purchasers on the plat. Kiley v. Hall, 96 Ohio St., 374, 117 N. E., 359, L. R. A. 1918B, 961. However, the evidence clearly shows that the defendants had actual notice of such restrictions before the time of purchase.

It is observed that the plat filed in the county recorder’s office did not contain restrictions; neither did the deeds by the allotter contain covenants by the grantor that similar restrictions would be imposed in subsequent conveyances of lots in the subdivision, or of the acreage in the tract. It is claimed that before plaintiffs are entitled to a remedy, they must first show not only that there was a covenant by each grantee respecting restrictions but, also, by the grantor that ail lots in the tract would be similarly restricted. In other words, it is claimed that there is no mutuality. In our opinion plaintiffs are not confined to such proof.

Equity will grant injunctive relief in violation of restrictions in defendants’ chain of title where it is shown that the defendants purchased the property with knowledge of a general building plan or scheme for the improvement of the subdivision and the tract in its entirety in accordance with restrictions contained in defendants’ chain of title which were designed to make the tract more attractive for residential purposes. Dixon v. Van Sweringen Co., 121 Ohio St., 56, 166 N. E., 887; Kiley v. Hall, supra; Hills v. Graves, supra; 21 A. L. R., 1306; 26 Corpus Juris Secundum, 548, Section 167.

It is shown by clear, certain and convincing proof that from the beginning Adolph W. Smith adopted a general building plan and scheme for the development of the entire tract, imposing uniform restrictions on lots sold in the subdivision and also on the acreage purchased by Moore, a part of which was in turn sold to the defendants; that Adolph W. Smith continued to operate under the building plan and scheme of development to the present time; that the building plan and scheme was designed to develop a highly restricted residential area for the benefit of the allotter and all purchasers of property on the trap.t; that the building plan and scheme of development was in accordance with restrictions contained in defendants’ chain of title.; and that defendants had both actual and constructive notice of such building plan and scheme and for whose benefit it was adopted prior to the date of purchase. The fact that the restrictions varied slightly in different deeds and that a lot and parcel of land on the edge of the tract were sold without any restrictions does not invalidate the building plan or scheme adopted. 26 Corpus Juris Secundum, 551, 552, Section 167.

The restrictions in defendants’ chain of title were such as to put them on inquiry; especially the restrictions which required the single dwelling to conform to adjoining property with respect to setback and exterior design, and that such plans should be prepared by an architect of known ability and submitted to Adolph W. Smith for his approval. “Adjoining property’’ could refer only to lots on the subdivision on which a number of costly residences have been erected. Discussion as to what extraneous facts will be sufficient to put a reasonably prudent person on inquiry is found in Mossop v. Bidwell, 5 Ohio App., 196.

We have no difficulty in finding that the conversion of the old barn into a night club by the expenditure of $12,000 for alterations and additions was of such proportions and of such a nature as to constitute the erection of a building for business purposes and not the erection of a single house to be used exclusively for residence purposes; and that such building failed to conform to adjoining property in the immediate neighborhood as to exterior design in violation of the restrictions in defendants’ chain of title. Rombauer v. Compton Heights Christian Church, 328 Mo., 1, 22, 40 S. W. (2d), 545.

Plaintiffs have no adequate remedy at law and are entitled to a permanent injunction against the defendants on both causes of action as prayed for. A decree may be drawn in conformity herewith.

Decree accordingly.

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


author: Matthews, J.

text:
    The State, ex rel. Howell, v. Schiele, Treas.

      (No. 7123
    Decided July 5, 1949.)

      Mr. William F. Hopkins, for relator.

      Mr. Henry M. Bruestle and Mr. James W. Farrell, for respondent.
   Matthews, J.

In this action the relator invokes the original jurisdiction of this court in mandamus to compel the respondent, the treasurer of the city of Cincinnati, to issue to him a license to conduct the calling of a professional bondsman in accordance with Section 722-2 of the municipal ordinances, which reads as follows :

“Any responsible person or firm may obtain from the city treasurer, a license to do business as a professional bondsman on payment of an annual license fee of one hundred dollars ($100) and the furnishing of a surety bond in accordance with the provisions of Section 722-2a. All licenses issued hereunder shall expire on December 31 of the year in which they are issued, provided that, between December 15 and December 31, renewal licenses may be issued for the ensuing year. If a licensee’s surety bond shall for any reason become ineffective, the license shall be suspended and of no effect, unless and until a renewal bond or a new bond shall be furnished in accordance with Section 722-2a.”'

By another section of the same ordinance, the city manager is given supervision over professional bondsmen, with power to revoke the license of any one found' guilty by him of extortion or dishonesty in connection with such business. Their fees are also prescribed.

By answer, the respondent admitted that he had refused to issue a license and pleaded in justification that the relator did not possess the qualifications imposed as a condition to the issuance of a license in that he was not a- responsible person within the meaning of the terms of Section 722-2 of the municipal ordinances.

At the trial it was conceded that the relator had complied with all the conditions for the issuance of a license unless the respondent was justified in refusing-on the ground that relator was not a responsible person.

Upon the subject of the relator’s character it was-stipulated that on the 12th day of January, 1949, he-had been convicted of the offense of making false statements for the purpose of defrauding the United States in violation of Section 72 of Title 18 of the United States Code, and of making false statements under oath for the purpose of obtaining bond in violation of Section 231 of Title 18 of the United States Code, and on the 25th day of June, 1947, he had been convicted of the offense of attempting to evade his income tax, in violation of the United States income tax law. It was also stipulated that he had been convicted twice of the offense of possession of untaxed intoxicating liquor and once of the offense of unlawful possession of intoxicating liquor without a permit.

It appeared also that the relator had been issued a license for the previous year and had deposited $2,000, .as required by the ordinances. At the time the present application for a license was denied 17 actions were pending on forfeited bonds signed by relator, and the respondent was holding the deposit against the final disposition of those cases. It was admitted that relator had satisfied all judgments rendered against him on forfeited bonds. Whether, or to what extent, he was co-operative in the apprehension of accused and in securing their appearance was not disclosed.

Prom this recital of the facts it has become apparent that this is not a case in which an accused person is complaining that he has been denied bail or that excessive bail has been required. Section 9 of Article 1 of the Ohio Constitution, which provides that all persons shall be bailable by sufficient sureties except for capital offenses where the proof is evident or the presumption great, and that excessive bail shall not be required, has no application.

It is apparent also that this is not a case where the relator is presented as a noneompensated surety on a bail bond in a specific case and his qualifications as a surety on that bond are being weighed and determined, and the claim is made by the accused that the relator’s rejection as a surety would have the effect of depriving him of his liberty without due process of law. Whether that would raise a different issue we are not called upon to determine.

The question presented in this case on the evidence is whether the respondent is under a nondiscretionary duty to issue to the relator a license to carry on the calling of a compensated bondsman in civil and criminal courts sitting within the city of Cincinnati.

That the business of acting as a surety for pay upon court bonds, particularly in criminal cases, has a relation to the public safety and welfare we think is-too clear for argument or extended citation of supporting precedents at this late date. A cursory examination discloses that in most, if not all, of the states-recognition of this relationship has led to regulation, of the calling in one form or another. Requiring a permit upon compliance with certain conditions and supervision by an administrative officer are familiar-methods. And so long.as the regulation has a reasonable relation to the object to be accomplished and operates uniformly upon all pursuing the calling, it cannot be challenged, with success, as violating constitutional provisions guaranteeing due process of law and equal operation of the law.

Now what is the purpose sought to be accomplished: by requiring those charged with crime to give bail as-a condition of being given their liberty during the pendency of the proceeding?

While the penalty prescribed is a sum of money for-violation of the condition, that condition in a criminal bail is in substance that the accused shall be present whenever wanted to answer the charge and abide the judgment of the court. It is the presence of the accused, and not the money of the surety that is desired.. In 6 American Jurisprudence, 88, Section 102, it is said:

“It would appear that a recognizance or bail bond in-general binds to three things: (1) To appear and answer either to a specified charge or to such matters as-may be objected, (2) to stand and abide the judgment of the court, and (3) not to depart without leave of the-court. The duties and obligations in these respects-are distinct and independent. The extent of the duty and obligation of the sureties, therefore, is to see to it that the principal, at all times during the term of the court to which he is bound to appear, is present to answer the call of the court and to do what the law may require of him. If they fail in this respect, they have not kept him under the power of the court as if he had been in the custody of its proper officer. It must not be inferred that the surety is thereby required to do something not stipulated in his, bond, for the obligation thus imposed is nothing more than what the law reasonably considers to be within the condition of his undertaking.”

And, in 5 Ohio Jurisprudence, 5, it is stated that bail “has been defined in Ohio as the delivery of a person to his sureties, upon their giving, together with him, sufficient security for his appearance, he •being supposed to remain in their friendly custody instead of going to jail.”

The obligation of the surety to produce the accused is recognized by the statutes. Upon failure of the accused to appear, the surety is notified to appear “and produce the body of the defendant, or show cause why judgment shall not be entered.” Section 13435-18, General Code.

That being the effect of releasing an accused upon 'bail, it would seem that government would be justified in considering more than the financial ability of the proffered surety in determining his acceptability. We find that the judicial department has deemed itself bound to require more than mere proof of ability tO respond to the penalty. In United States v. Simmons, 47 F., 575, 14 L. R. A., 78, the court rejected a bail bond on the ground that the surety had been fully indemnified and, therefore, had no incentive to “take care that the condition of the recognizance is performed.” And at page 577, the court said: “Bail, when accepted in criminal cases, become in law the custodians of the-prisoner for the court. They have the right and are charged with the duty to arrest the prisoner in case Lie contemplates flight. The court looks to their vigilance to secure the attendance and prevent the absconding of the delinquent.” In Concord Casualty & Surety Co. v. United States, 69 F. (2d), 78, 91 A. L. R., 885, the court held, as stated in the syllabus of the latter-named report, that “A Federal court deeming a surety company a poor moral or unsafe risk may refuse to approve an undertaking to which such company is a party, and may direct the clerk of the court to do likewise.” That was held in a case in which the-agents of the surety company were suspected of conspiring with convicted persons to have others impersonate them and serve prison terms for them.

In United States v. Lee, 170 F., 613, the court, at page 614, said:

“When indemnitors are not acting in good faith, and’ their purpose is to substitute the recognizance and the indemnity for the person of the accused and thereby enable him to flee from justice, the court or committing magistrate should not accept the recognizance.”

And, at page 615 :

‘‘When the circumstances point to bad faith on the part of the indemnitors, the right to bail guaranteed by Section 1015, Rev. St. (U. S. Comp. St. 1901, p. 718), to an arrested party, does not prevent the court, in the exercise of a sound discretion, from rejecting sureties who, however honorable they may be, become sureties from purely business reasons and apparently without assuming any of the responsibilities which the law imposes.”

By Section 13435-4, General Code, it is provided’ that a proffered surety must file an affidavit of justification as to any existing bonds or unsatisfied judgments or executions thereon, and, “He may also be required to state any other fact which the court deems relevant and material to a correct determination of the sureties’ sufficiency to act as bail.”

So, we conclude, that the law of Ohio, as elsewhere, is that in determining the sufficiency of a surety the courts have a sound discretion to determine not only his financial ability to respond to the penalty in the bond but also his moral responsibility in reaching a conclusion as to whether the bail will insure the presence of the defendant.

We have found one case only in which the constitutionality and interpretation of a statute requiring a license to engage in business as a professional bondsman have been considered and that is the case of McDonough v. Goodcell, 13 Cal. (2d), 741, 91 P. (2d), 1035. The Legislature of California enacted a law regulating the bail bond business and prohibited the carrying on of the business without a permit and authorized the insurance commissioner to issue permits upon proof that the applicant was “a fit and proper person to engage in such business.’’ After a hearing at which conflicting evidence was introduced the commissioner found that the applicants (two partners) “were not persons of good moral character and that they were not fit and proper persons to engage in the bail bond business,’’ and refused to issue a permit. :Some of the derogatory testimony was based on acts committed prior to the enactment of the law and that was assigned as error. The action was in man-damns to require the commissioner to issue the permit.

The court sustained the constitutionality of the law .and the action of the commissioner thereunder, and denied the writ of mandamus. The opinion is lengthy. Many cases are cited and commented upon. At page 748 the court said:

“A survey of the foregoing authorities discloses that it is the settled general rule of law in this state that where the legislature has by statute clothed an administrative officer with power to ascertain the facts-with reference to the fitness of an applicant for a permit to engage in a business subject to regulation under-the police power and has vested in such officer the discretion, based on the facts ascertained, to grant or deny a permit to engage in such business the courts-will not interfere with the exercise of such discretion except in the case of an abuse thereof.”

So, we conclude that not only the financial but also-the moral qualification of a surety upon a bail bond is-a matter of public concern, subject to regulation under the police power and that those pursuing the calling of professional bondsmen for compensation are likewise subject to regulation.

That leaves but one other question in this case and' that is — Has the city of Cincinnati by its ordinance prescribed a moral as well as a financial qualification, for professional bondsmen and clothed the city treasurer with the authority to determine the possession of such qualification, in the exercise of a sound discretion?'

Recurring to the terms of the ordinance, it will be noted that it limits the issuance of permits to “responsible persons.” That is a prerequisite. In addition to-being a responsible person the applicant must furnish a bond in a sum not less than $1,000 adequate to cover at all times the total of all outstanding undischarged' bail bonds, etc. Prom this we draw the inference-that the professional bondsman must present something more than an adequate bond, for if payment of the penalties was all that was desired the bond would suffice regardless of whether the permit holder was-responsible or irresponsible.

One of the definitions given by Webster for responsible is “trustworthy, financially or otherwise.” To determine its meaning in any given case, its connotation must be considered. To be trustworthy means faithful to the trust reposed, whatever the trust may be.

Now what is the trust reposed in the surety upon a bail bond? It is not primarily to respond in money to the extent of the penalty. His primary obligation is t.o produce the defendant in court to abide the judgment of the court. It is only on his default in the performance of this primary duty that the obligation to pay matures. Trustworthiness in answering to this duty to produce the person of the defendant is the sense in which the phrase “responsible person” is used in this ordinance.

We are fortified in our interpretation of this language by the other provision of the ordinance giving the city manager supervision over professional bondsmen, with authority to direct the city treasurer to revoke the license of any such bondsman found guilty of dishonesty in connection with such business. Betrayal of the trust reposed to produce the defendant certainly would be classed as dishonesty. Certainly, ground for the revocation of the license would be sufficient reason for refusal to grant the license in the first place.

When it is considered that the relator has stipulated that he has been convicted five times of violating the law, two of which violations involved fraud and perjury, it is not difficult to conclude that the respondent had ample basis for his conclusion that the relator was not a responsible person within the meaning of the ordinance and did not possess the qualifications required to act as custodian for the court of persons charged with crime, bound first and foremost with the duty of so acting as to insure that the accused would respond when called.

Where discretion is lodged in an official, where he is required to decide on conflicting evidence, or to choose between conflicting inferences, a writ of mandamus may issue to compel a decision, but not a particular decision. Sound discretion cannot be controlled by mandamus. It is only where there is an abuse of discretion that the writ will issue in such cases, in other words, where there is no place for the exercise of discretion under the circumstances. 25 Ohio Jurisprudence, 1131 et seq., Section 176 et seq.

For these reasons, the writ of mandamus is denied, and the .petition dismissed.

Writ denied.

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


author: Fess, J.

text:
    Shupp et al., Appellants, v. Farrar et al., Appellees.

      (No. 579
    Decided February 14, 1949.)

      Messrs. Young & Young, for appellants.

      Mr. Allan G. Aigler and Mr. J. Allen Vickery, for appellees.
   Fess, J.

This is an appeal from a judgment sustaining a will. At the conclusion of testimony on behalf of the contestants, the trial court on motion of contestees directed the jury to return a verdict sustaining the will.

The first assignment of error is that the judgment is contrary to law because the will was not attested and subscribed by two or more competent witnesses as required by Section 10504-3, General Code. The second assignment of error is that the court erred in directing the verdict where there was evidence of fraud, undue influence and lack of testamentary capacity. As to the second assignment, we find there was no credible evidence of such claims.

As to the first assignment of error, the record of probate discloses that the will was executed and witnessed by two persons on August 8, 1947.. The testator died on August 22 and on August 27, 1947, “the subscribing witnesses to said will having appeared in open court, were duly sworn and examined according to law as to the due execution and attestation of the said will and the testimony of said witnesses was reduced to writing and filed.”

One of the attesting witnesses was adjudged insane on November 24, 1947. In the record of such adjudication, which was introduced as an exhibit in the case, there appears a medical certificate containing the following statements:

“7. Was the present attack gradual or rapid in onset? Gradual.
“8. When was any peculiarity first noticed and in what way? May 25, became noticeably cross and irritable without just cause. * * *
“11. What is the supposed cause of the mental illness? Following accident and long home confinement.”

As to the claim that the judgment is contrary to law, this evidence is wholly insufficient to warrant finding as a matter of law that the will was not executed according to law on the ground that one of the witnesses was incompetent.

Although we may not be required to consider it, the query arises whether under the evidence in this case the question of the competency of the witness was one for the jury and, if so, whether there was sufficient credible evidence to submit the question to the jury.

The order of probate of a will is prima facie evidence of its due attestation. Section 12083, General Code.

A certified copy of the testimony of such of the witnesses examined upon the probate as are out of the jurisdiction of the court, dead, or since the probate have become, incompetent, shall be admitted in evidence on the trial. Section 12084, General Code. The affidavit of the two witnesses to the will taken before the probate judge was admitted, without objection, as a part of the record of the probate of the will. It has been held that such an affidavit is not competent where it does not appear that the witness is prevented by incompetence or otherwise from being present to testify. Kettemann, Exrx., v. Metzger, 3 C. C. (N. S.), 224, 13 C. D., 61; Fox v. Lynch, Jr., 43 Ohio App., 305, 183 N. E., 177.

In the instant case, however, since the witness had been adjudged insane after the probate of the will, the affidavit was properly admitted as credible evidence of the due attestation and execution of the will. Since the order of probate is only prima facie evidence of the due attestation of the will, it seems to us evidence that the witness was of unsound mind at the time the will was executed would be admissible to overcome the prima facie showing made by the order of probate and the affidavit of the witness. But the determination of the competency of a witness is the function of the court and not the jury. From the order of probate it is presumed that the Probate Court found that the witness was competent when he attested the will and also when he testified at the hearing on admission of the will to probate.

The medical certificate relating to the insanity of the witness was admitted without objection. Appellant contends that the statements therein show that the witness became insane on May 25, 1947. This statement is to the effect that the witness became noticeably cross and irritable on May 25, 1947, but there is no evidence, expert or otherwise, that the witness was incompetent on such date.

Contestants contend also that from the adjudication of insanity on November 24, 1947, it is presumed that the witness was insane on August 8, 1947. The general rule is that presumptions are prospective and not retrospective. All persons are presumed to be sane until proven to be insane. No presumption of insanity can arise until permanent mental disorder is proved to exist and when once established it is said that the law will presume that condition to continue for a reasonable length of time. Either so-called presumption may be rebutted. Kennedy, Exr., v. Walcutt, 118 Ohio St., 442, 161 N. E., 336.

Losh v. Winters’ Natl. Bank & Trust Co., 37 Ohio Law Abs., 204, Lee, Gdn., v. Stephens, 38 Ohio Law Abs., 431, and Heath v. Kosier, 76 Ohio App., 89, 61 N. E. (2d), 728, are cited as authority for the proposition that an adjudication of insanity made after a transaction is presumptive evidence of the mental incapacity of the person at the time of the transaction. The correct rule, however, seems to be that the subsequent adjudication may be received in evidence to be considered with other direct evidence relating to the time in question or prior thereto and that no presumption of insanity arises with respect to transactions prior to adjudication. The Heath case, which is the oniy one of the three officially reported, holds merely that evidence of the adjudication a month after the execution of the will, taken in conjunction with other evidence, constitutes some evidence on the issue of undue influence but not necessarily incompetence. The second paragraph of the syllabus in Kennedy, Exr., v. Walcutt, supra, holds that evidence of a testator’s mental and physical condition within a reasonable time before and after the making of the will is admissible as throwing light on his mental condition at the time of the execution of the will. The third paragraph of the syllabus holds that an adjudication of insanity of a testator is admissible in evidence as bearing upon the testamentary capacity of the testator at the date of the execution of the will, but in that case the adjudication occurred prior to the execution of the will, and the only presumption referred to in the syllabus is the rebuttable presumption of continuance of insanity after adjudication. We therefore hold that there is no presumption of insanity prior to adjudication, but evidence of such adjudication within a reasonable time .after a transaction is admissible with other evidence as throwing some light on the mental condition at the time of the transaction.

However, in the instant case we are not dealing with the question of the sanity of a testator. We are concerned only with the question whether there is some credible evidence that the witness was not a competent witness at the time he attested the will.

Section 11493, General Code, provides:

“All persons are competent witnesses except those of unsound mind * *

However, an insane person is not absolutely incompetent as a witness by reason of his insanity, and his competency is determined according to common-law principles. State v. Wildman, 145 Ohio St., 379, 61 N. E. (2d), 790. A person who is able to correctly state matters which have come within his perception with respect to the issues involved and who appreciates and understands the nature and obligation of an oath is a competent witness notwithstanding some unsoundness of mind. The determination of the competency of an insane person to testify lies in the discretion of the trial judge and a reviewing court will not disturb the ruling thereon where there is no abuse of discretion. State v. Wildman, supra. Had the witness in question taken the stand at the trial below and his competency had been there challenged, such question would have been one for the court to determine. The credibility of his testimony was one for the jury.

In conclusion, since there is no presumption of prior insanity from a later adjudication, no direct evidence of insanity at the time in question and no showing of abuse of discretion in failing to find the witness incompetent, we hold that the court below did not err in directing the jury to return the verdict sustaining the will. The judgment is, therefore, affirmed.

Judgment affirmed.

Conn and Carpenter, JJ., concur.


author: Wiseman, J. By the Court.

text:
    Nickerson, Appellee, v. Nickerson, Appellant.

      (No. 2027
    Decided April 9, 1949.)

      Mr. Irvin Carl Delscamp, for appellee.

      Mr. Gus W. Byttner, for appellant.
   Wiseman, J.

This is an appeal on questions of law from an order of the Common Pleas Court of Montgomery County, overruling a motion to vacate a default judgment rendered in a partition suit. Several grounds of error are assigned.

The principal question raised is whether the defendant-appellant had been served with summons in the action. A period of 18 months elapsed from the-time the action was filed until the property was sold. After sale and confirmation thereof, the appellant filed his motion to vacate the judgment.

There was a clear conflict in the testimony. The appellant contends that summons had not been served upon him. The return of service shows that he was served personally. When the return is regular on its face there is a presumption in favor of valid service. See 32 Ohio Jurisprudence, 483, Section 94. This presumption stands until overcome by proof showing the contrary.

The deputy sheriff, who made the service, testified that he knew the appellant and served him personally on the date stated in the return. Whether the deputy making the service actually signed the return on the day service was made or on a later date is immaterial in view of Section 11363, General Code, which authorizes the court to amend any process or correct a mistake in the return, before or after judgment, in the furtherance of justice. See Paulin v. Sparrow, 91 Ohio St., 279, 287, 110 N. E., 528.

In determining whether the appellant had been legally served with summons, the trial court was the sole .judge of the credibility of the witnesses and the weight to be attached to their testimony. It was within the province of the trial court to believe the evidence presented by the appellee and disbelieve the evidence presented by the appellant. The trial court found that persona] service had been made on the appellant. The several orders made by the court, of which appellant complains, conform to such finding. This court cannot find from the record that the judgment was not properly supported by the evidence. As we find no error in the record prejudicial to the rights of the appellant, the judgment is affirmed.

Judgment affirmed.

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

(Decided May 13, 1949.)

On Application for rehearing and Motion to strike.

By the Court.

This cause is submitted on application of defendant-appellant for rehearing and motion of plaintiff-appellee to strike such application from the files on the ground that there is no provision in the rules of the Courts of Appeals, effective January 1, 1949, permitting a rehearing or the filing of an application for rehearing.

Within ten days after the decision in this case was •announced, appellant filed his application for rehearing in the office of the clerk of courts. Under a former rule of the Courts of Appeals (Rule XI), applications for rehearing were recognized. It is quite evident that appellant has attempted to follow the procedure under the former rule which has been superseded and repealed effective January 1, 1949. There was no provision in the former rules, nor is there in the present rules, for filing an application for rehearing in the office of the clerk of courts. A motion to strike such application from the files is appropriately filed.

Although the present rules of court do not provide for the filing of an application for a rehearing, such application, if presented, will be given such recognition as the court deems proper. If a vital question is raised which would require a different decision by the court, the court will give due recognition to such application If the application is without merit, the court will summarily deny the application or ignore it entirely since no provision is made for a rehearing. Such application should not be filed with the clerk of courts, but should be presented to the presiding judge of the Court of Appeals.

In the instant case, the application fails to present any matter which was not formerly considered by the court. Appellant contends that the court did not pass upon all errors assigned as it is required to do by Section 12223-21, General Code. The nature of the question raised warrants a brief discussion.

In arriving at this court’s conclusion, all errors assigned were considered. The court found that the errors assigned were not well made and affirmed the judgment. Although the provision in Section 12223-21, that “all errors assigned shall be passed upon by the court,” is mandatory, sufficient compliance with this provision is shown where the court finds that there is no error in the record prejudicial to the rights of the appellant and affirms the judgment; such finding being tantamount, to overruling each and every error assigned and specific reference to the errors assigned by designated number not being required. In re Wysong, 30 Ohio Law Abs., 316.

The motion to strike the application for rehearing from the files is hereby sustained.

Motion sustained.

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


text:
    The State of Ohio, Appellee, v. Miller, Appellant.
    (No. 4167
    Decided October 19, 1948.)

      Mr. Glenn B. Kemp, for appellee.

      Mr. Isadore L. Margulis, for appellant.
   By the Court.

This is an appeal on questions of law from the Municipal Court of Columbus. Emma Miller, one of the defendants, was charged with (1) illegal possession of intoxicating Liquor; (2) keeping a disorderly house; and (3) keeping a place where intoxicating liquor was sold.

James J. Johnson was charged with the illegal sale of intoxicating liquor. A joint trial was had which resulted in the defendants being found guilty on all the charges.

The tacts pertinent to the issues raised on this appeal disclose that William O. Stokes, a state liquor inspector, who was accompanied by a lady, called at the residence of the defendant, Emma Miller, at approximately 3:30 a. m.; that the defendant, James J. Johnson, admitted them into the house, conducting them to the dining room; that two other men were there in an intoxicated condition; that upon request being made by Stokes, Johnson sold him two double shots of whiskey for $1.60; that the use of a room was requested and Johnson rented him a room for the sum of $2; that shortly after this had transpired the defendant, Emma Miller, came downstairs; that Johnson explained these transactions to her, gave her the four dollar’s which the state inspector had given him and she gave the proper change to Johnson to give to Stokes; that Emma Miller then went upstairs, saying that she would get the room ready; that at this juncture the city police entered, searched the house and found two pints of whiskey, one whiskey bottle practically empty and two cases of beer; and that the arrest of the two defendants then followed.

The errors assigned are:

(1) That the acts of the officer constituted entrapment;

(2) The judgment is based upon insufficient evidence.

The record discloses that the officers had no search warrant for the premises and that a motion was made to suppress all the evidence, which motion was properly overruled. See State v. Lindway, 131 Ohio St., 166, 2 N. E. (2d), 490, paragraphs four and five of the syllabus.

It is further charged that the evidence is insufficient to support the conviction. We cannot agree with this conclusion as none of the testimony offered by the state was controverted. Neither of the defendants took the witness stand and no testimony was offered in their behalf, the defense resting at the conclusion of the state’s case. The verdict is fully supported by the evidence.

It is' further charged that no conviction may be had in those cases for the reason that the conduct of the state liquor inspector constituted an entrapment. We do not so hold. The rule in this state seems to be that when the doing of a particular act is a crime, regardless of the consent of anyone, if the criminal intent originates in the mind of the accused, and the criminal offense; is completed, the fact that an opportunity is furnished, or that the accused is aided in the commission of the crime in order to secure the evidence necessary to prosecute him therefor, constitutes no defense. See 12 Ohio Jurisprudence, 80, Section 38; Davis v. State, 26 Ohio App., 340, 159 N. E., 575. On the other hand, the defense is available to one who is induced or lured by an officer of the law or other person for the purpose of prosecution into the commission of a crime which he otherwise had no intention of committing. We find that the officers in this case acted only for the purpose of detecting crime and not inducing its commission.

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

Judgment affirmed.

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


author: Hornbeck, J. By the Court.

text:
    Hamilton, Appellant, v. Russell, Supt. of Dayton Workhouse, Appellee.
    (No. 2012
    Decided December 27, 1948.)

      Mr. Louis C. Capelle, for petitioner, appellant.

      Mr. Herbert S. Beane, city attorney, and Mr. Cecil E. Edwards, for respondent, appellee.
   Hornbeck, J.

This appeal is from a judgment of the Common Pleas Court denying petitioner a discharge from custody on trial had and final hearing in a habeas corpus proceeding.

We do not have the petition, but it may be assumed that it is in the usual form. The claim of petitioner is that he was not properly charged with an offense and that he was improperly sentenced and committed. The briefs of the parties and the arguments of counsel were directed to one charge and one commitment. The record contains two charges and two commitments. If the petitioner is properly held on either, the writ must be denied.

One charge is that on or about January 7, 1946, petitioner was found within the city limits of Dayton at a place there named in a state of intoxication. 'There is no judgment and sentence on this charge but there is a commitment in regular form directed to respondent, wherein it is recited that the petitioner was charged and found guilty of intoxication. The sentence is for a number of days from the 9th of January 1949, the 9 being written over a 6, and to pay a fine of $100 and costs. The commitment was dated January 9, 1946.

Inasmuch as there is no order and sentence of the trial judge upon which the commitment could issue, and also because, if the petitioner had been properly committed, his sentence would have been served working out his fine and costs at the per diem allowance, we may properly determine that petitioner should not legally be held under this commitment.

We then give consideration to the ground upon which the cause was presented to the trial court and urged here, namely, the invalidity of the other proceedings by which the petitioner is now being held by the respondent.

On this claim, the petitioner was charged in the usual form of violating Section 926 of the Ordinances of the city of Dayton, in that he unlawfully loitered at the place named, in the city of Dayton. Then followed this further subject matter:

“The said Paul Hamilton, having been three times convicted, sentenced and imprisoned in the workhouse of the city of Dayton, Ohio, for offenses committed in the state of Ohio, to wit: November 11, 1944, Case No. 20276, loitering; September 2, 1945, Case No. 30266, loitering; December 12, 1943, Case No. 4313, loitering, contrary to Section 4131 of the General Code of Ohio,” etc.

The judgment entry on that charge recites that “the cause came on to be heard upon the issue joined and tlie evidence * * * and the court * * * does find the defendant guilty of loitering in violation of the habitual offender act as he stands charged in the affidavit filed herein.” The commitment recites the trial and conviction of petitioner of unlawfully loitering, as charged in the affidavit with the addenda as carried therein, and the further recital that he had been sentenced to be imprisoned in the workhouse in the city of Dayton for a term of three years from .January 9, 1946.

Several errors are assigned. First, that Section 4131, General Code, defining an habitual offender, does not constitute a crime. Second, that the plaintiff did not waive a trial by jury in writing. Third, that Section 4131, Genera] Code, violates the Constitution of the state of Ohio in that it provides for cruel and inhuman punishment.

Upon the second and third assignments we find against the claim of petitioner. We discuss the first as we consider the general proposition whether, upon the proceedings appearing, the trial court erred in refusing to hold that petitioner was illegally restrained of his liberty. Section 4131, General Code, so far as pertinent, provides:

“Every person who, after having been three times convicted, sentenced and imprisoned in any workhouse * * * for offenses committed in this state, whether in violation of law or ordinance, shall be convicted of a fourth misdemeanor, whether committed in violation of an ordinance of a municipality or law of the state, punishable by imprisonment in any workhouse within this state, shall, upon conviction for such offense be held and deemed to be an habitual offender and shall be imprisoned in a workhouse for a period of not less than one year nor more than three years- * * *”

We are cited to In re Moreno, 83 Ohio App., 54, 82 N. E. (2d), 325, the third paragraph of the syllabus of' which reads:

“Section 4131, General Code, does not create a separate, distinct crime, for which one may be sentenced to the workhouse, but, on the contrary, merely attaches an additional penalty to the commission of a misdemeanor, where the perpetrator thereof has been three times previously convicted of misdemeanors and. sentenced to the workhouse. ”

The decisive question in that case did not especially relate to the proposition of law set out in the third paragraph of the syllabus. We agree that the section must be considered in conjunction with the other offenses therein set out, and may not be given application unless and until it is charged and proven that a defendant has been three times convicted and imprisoned in a workhouse, and further, charged and proved that a fourth misdemeanor has been committed, carrying the same penalty.

Testing the affidavit in this respect, we are of opinion that it conforms m substantial averments to the law. It is true that the affidavit is concluded with the charge contrary to Section 4131, General Code, but that part of the affidavit which goes before is sufficient, in that it charges a fourth offense under an ordinance punishable by imprisonment in a workhouse, and also that the defendant has been three times convicted, sentenced and imprisoned in the workhouse of the city of Dayton and details the dates, the numbers of the cases and the charges. The affidavit incorporates all. the essentials requisite, if proven, to give the court authority to impose sentence, as provided in Section 4131, General Code.

The order reciting the trial and conviction of the defendant is inadequate in particulars. First, it adjudges that, the defendant is found guilty of loitering in violation of the habitual offender act as he stands charged in the affidavit. There is no such charge, nor can it be said that because of the finding alone that the defendant is guilty of loitering, there has been a violation of the habitual offender act. It is material and essential to the judgment order that it recite a finding of guilt of the charge of loitering, and a further finding that the defendant had three times theretofore been convicted, sentenced and imprisoned in the workhouse of the city of Dayton, Ohio, setting out the specific offenses as charged.

There is another infirmity in the record of the proceedings as made up in the bill in that it does not carry any sentence of the court which is an essential to any commitment. That, there must be such a pronouncement, and that it must be carried into a proper written order of the court, is manifest. Section 13451-13, General Code. To be a valid sentence it must in and of itself be so definite and certain as to advise the prisoner and officer charged with the execution of the sentence of the time of its commencement and termination. The commencement and termination thereof must be definitely fixed in the judgment. 12 Ohio Jurisprudence, 699, Section 681, and cases cited.

It may be that there is a judgment order and sentence which succeeded the order finding the defendant-guilty as charged. Such an entry would be appropriate following the finding of guilt, either in the same or another entry, but if there is such an order it is not carried into the bill of exceptions and we can not assume that it was entered as a part of the proceedings in the cause.

In fairness to the trial judge, it should be said that, in probability, our final reason for the granting of the writ of habeas corpus, and the infirmity in the proceedings committing the petitioner, was not urged and probably not presented in argument at the original hearing. Inasmuch, however, as the invalidity of the proceedings upon which the commitment was issued is so material, it would be an injustice to the petitioner upon this record to refuse him the relief prayed.

An order of discharge from custody should have been granted as prayed and the judgment of the Common Pleas Court denying its issuance was erroneous and prejudicial to the rights of the petitioner. Judgment will be reversed, order as prayed may issue and the cause will be remanded.

Judgment reversed.

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

On Application for rehearing.

(Decided January 18, 1949.)

By the Court.

This cause is submitted on application of respondent for a rehearing, based upon the claim that certain records in the Police Court of the city of Dayton, which were not before this court, would require a different judgment. The statement in the memorandum attached to the motion clearly discloses that the evidence upon which respondent relies was not before this court or the trial court. The trial court in the first instance, and this court upon review on questions of law, were restricted in their consideration of the facts to the evidence developed by testimony taken or presented by stipulation at the trial. We know of no procedure by which the evidence suggested could be brought upon the record at this late date..

The application will be denied.

Application denied.

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


text:
    Farris, Appellee, v. City of Columbus, Appellant.

      (No. 4173
    Decided October 28, 1948.)

      Messrs. Hamilton (& Kramer and Mr. Joseph R. Hague, for appellee.

      Mr. Richard W. Gordon, city attorney, Mr. Hugh K. Martin and Mr. Edward J. Cox, for appellant.
   By the Court.

This is an appeal on questions of law from the Common Pleas Court of Franklin county, which rendered judgment on a verdict returned in favor of the plaintiff in the amount of $3,500.

Plaintiff sued the city of Columbus for damages growing out of an accident that occurred on Leonard avenue in that city. Plaintiff was riding his motorcycle in a westerly direction on Leonard avenue and immediately before the accident was following an automobile which was traveling in the same line of traffic. The automobile suddenly swerved to the left without warning and the plaintiff, being so near a hole in the pavement that he was unable to avoid it, dropped into the hole upsetting the motorcycle. The plaintiff was thrown to the ground and injured.

The automobile and motorcycle were traveling at a rate of speed between 20 and 25 miles per hour. The accident happened at 2:45 p. m. The day was clear and blight and the street was dry.

The defendant has assigned 21 separate grounds of error which present three principal questions for determination. The defendant contends error was committed in the admission of testimony on behalf of plaintiff, in failing to apply the “assured clear distance ahead” rule, and in that counsel for plaintiff in their argument to the jury were guilty of misconduct.

To charge the city with actual knowledge of the condition of the street, the plaintiff produced a witness who resided and conducted a place of business on Leonard avenue at the place where the accident happened. He was permitted to testify that he called the city hall three times. Upon receiving an answer he asked for the street repair department. A man answered who each time stated that he had charge of the repair of streets, and each time a promise was made to send someone out to “look it over” or “see about it.” The witness testified that in each telephone conversation he stated that the street was in a rough condition. In the second call be reported that big busses go through. In the last call he reported the street was getting pretty rough. The last call was made two or three days before the accident. The testimony shows that the hole which caused the accident was in that condition for a period of four or five days or perhaps one week prior to the accident. In the third telephone conversation, the witness informed the one answering the telephone that he had twice before reported the condition of the street.

The record shows that the street was paved with a material commonly called “hot mix”; that at that place there were numerous holes in the street, the largest one of which caused the accident; and that this hole was described as being one and one-half feet in diameter and one foot deep. The jury could easily conclude that a street in such condition was not “in repair, and free from nuisance.” Section 3714, General Code.

Was the evidence relative to the telephone conversation competent to prove actual knowledge on the part of the city? Dnder modern business practices and the law applicable thereto, a person who answers a telephone call from the place of business of the person called is presumed to be the person called. Especially is the identity presumed if the one answering the telephone responds to the conversation indicating that he has charge of the business in pursuance to which the call was made. 31 Corpus Juris Secundum, 910, Section 188. See, also, L. R. A. 1918D, 720. In our opinion the evidence was competent and admissible and of sufficient probative value to submit the question of identity to the jury.

Was the city apprised of the defect in the street which caused the injury? The witness did not describe in detail the particular hole which caused the accident. In our judgment this is not required. The street was full of holes. The report made by the witness sufficiently described the existing condition of the street. The defect which caused the accident was of the same general character as described by the witness and was a usual concomitant of the general defective condition of the street. Village of Shelby v. Clagett, 46 Ohio St., 549, 22 N. E., 407, 5 L. R. A., 606. In our opinion the evidence was admissible and the court did not commit prejudicial error in submitting this issue to the jury.

The defendant requested the court to give before argument four special instructions applying the “assured clear distance ahead” rule. The court refused to so charge and several grounds of error are predicated on such refusal. The evidence shows that the plaintiff was following the automobile at a distance of about 30 feet according to the testimony of the plaintiff. A witness for the plaintiff testified that the plaintiff was a car’s length or better behind the automobile. Both vehicles were traveling at a lawful rate of speed. The plaintiff testified that when the automobile swerved to the left, the hole for the first time could be seen, and that he, the plaintiff, was on the hole and could not avoid it. The defendant contends that the plaintiff was not operating his motorcycle at such a rate of speed that he could bring it to a stop within the assured clear distance ahead as required under the provisions of paragraph (a) of Section 6307-21, General Code. In support of this contention defendant cites the case of Smiley v. Arrow Spring Bed Co., 138 Ohio St., 81, 33 N. E. (2d), 3, 133 A. L. R., 960, the second paragraph of the syllabus of which is as follows :

“To comply with the assured-clear-distance-ahead provision' of Section 12603, General Code, the driver of a motor vehicle must not operate it at a greater speed than will permit him to bring it to a stop within the distance between his motor vehicle and a discernible object obstructing his path or line of travel, unless such assured clear distance ahead is, without his fault, suddenly cut down or lessened by the entrance,, within such clear distance ahead and into his path or line of travel, of some obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith.”'

On page 84 the court, in defining the rule, stated:

“The ‘assured clear distance ahead,’ as used in the statute, must be the distance or space between the-motor vehicle of the motorist and any discernible obstruction or any limit of vision ahead of him on the highway. For example, if a train of cars is standing across the highway immediately ahead of the motorist,, the distance between himself and the train of cars is-the assured clear distance ahead. If his view is cut off by darkness, by a curve in the highway, or by the crest of a hill, the distance between him and the point where his vision ends or is cut off is the assured dear-distance ahead. The requirement of the statute is that the motor vehicle be so operated that, at any instant,, it can be stopped within such assured clear distance ahead. ’ ’

The application of the principle of law laid down-in the Smiley case hinges on the question whether a hole in the pavement is a discernible object. In the Smiley case the court cites numerous cases where the-rule was not applied. It is pointed out in those cases-that the driver "would not be able to discern a thin wire, a small stake, a patch of ice on the pavement-causing the automobile' to skid, an unlighted ditch extending across the highway or an unlighted excavation, in the highway. The rule is not applicable unless it- be-shown that the obstruction or defect is discernible, and discernible in time to permit the driver to avoid it. If the obstacle in front is, for the first time, in the driver’s-view after the vehicle has passed the point where the-“assured clear distance ahead” rule would be effective, and the obstacle is then too close to be avoided, the rule has no application. See Stark v. Fullerton Trucking Co., 318 Pa., 541, 179 A., 84, cited by the Supreme Court on page 86 in the Smiley case. In the case at bar, the obstacle was not discernible until the automobile had swerved from its path and the plaintiff was then too close to avoid striking the hole. The plaintiff had passed the point where the rule would have application. We have recently applied the rule to a curve in the highway (State v. Cheatwood, 84 Ohio App., 125, 82 N. E. [2d], 770), but we are not disposed to extend the application of the rule to the facts presented in this case.

Defendant contends that plaintiff’s counsel were guilty of gross misconduct in their closing argument to the jury. Counsel for plaintiff referred to the hole into which the plaintiff had driven his motorcycle as a “trap.” Even if such reference could be considered misconduct and prejudicial, which we doubt, the record shows no objection interposed at the time and no request for instructions to the jury to disregard the remark. The question was raised for the first time on motion for new trial. The arguments of counsel are not a part of the bill of exceptions.

Improper remarks or misconduct of counsel furnish no basis on which to predicate error unless the matter was called to the attention of the court at the time and an opportunity given to the court to correct or avoid the error. Scott v. State, 107 Ohio St., 475, 490, 141 N. E., 19; Walsh v J. R. Thomas’ Sons, 91 Ohio St., 210, 110 N. E., 454; Hubbuch v. City of Springfield, 63 Ohio App., 329, 345, 26 N. E. (2d), 773; Oyler v. Stokes, 16 Ohio App., 427, 430; Sprung, Admr., v. E. I. DuPont De Nemours & Co., 30 Ohio Law Abs., 278, 294, 34 N. E. (2d), 41. See, also, Vol. 2 Ohio Jurisprudence, (Pt. 1), 342, 343, 344, Section 170.

We find no error in the general charge; neither do we find the verdict to be excessive in view of the evidence adduced. In onr opinion the verdict and judgment are sustained by sufficient evidence and are not contrary to law.

The judgment is affirmed.

Judgment affirmed.

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


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

text:
    Murphy, Appellee, v. Murphy, Appellant.
    (No. 6966
    Decided November 1, 1948.)

      Mr. Charles B. Terry and Mr. Fred L. Hoffman, for appellee.

      Mr. Carl Markley and Mr. Louis J. Strieker, for appellant.
   Matthews, P. J.

This cause comes before the court upon plaintiff appellee’s motion to dismiss the appeal on the ground that the defendant appellant was an incompetent, having been declared such by the Probate Court of Hamilton County, and, for that reason, lacked the capacity to prosecute this appeal.

This is an action for divorce and alimony. We learn from the petition that defendant Joseph H. Murphy had been declared an incompetent by the Probate Court of Hamilton County, and that plaintiff, Margaret Murphy, was appointed as his guardian and was still acting as such. The plaintiff as guardian was joined with Joseph H. Murphy, her ward and husband, as defendant.

Thereafter, Joseph H. Murphy, on his own behalf, filed an answer admitting that plaintiff had been appointed and was acting as his guardian and had title to the real estate described in the petition, and then denied all other allegations in the petition. He also filed a cross-petition, alleging various acts of wrongdoing by the plaintiff, but did not seek a divorce for such misconduct. The prayer of his cross-petition was that he be restored to his business and the equipment and real estate used in connection therewith, and for a fair and reasonable division of the other property.

Thereafter, a trustee was appointed to represent Joseph H. Murphy in the action. The trustee filed no answer and so far as the record shows was not present at the trial. Seven months after the trial, he filed a “report” nunc pro tunc as of the date of trial. The record does not show that this report was brought to the attention of the court at the trial. This report shows that the trustee made a thorough investigation of the facts, but does not show that he ever conferred with the defendant, and the report bears none of the indicia of an answer. From this report, however, we learn that the appointment of the plaintiff as guardian was based on a finding that the defendant was an habitual drunkard. We also learn therefrom that, later, the plaintiff filed an affidavit in the Probate Court averring that the defendant was mentally ill. On hearing of this charge, the physicians found that the defendant was not mentally ill, not epileptic, and not feeble minded. As a result of this finding, the court dismissed the proceeding, but the guardianship based on the finding that he was an habitual drunkard was not vacated.

The phrase, “habitual drunkard,” is defined by Section 10507-1, General Code, as any person who by reason of habitual drunkenness is incapable of taking proper care of himself or of his property. The statute treats incompetency resulting from drunkenness, in the same way that it treats incapacity resulting from mental disability. So long, therefore, as the guardianship, based on the finding of habitual drunkenness, continues, we must assume that the defendant is incapable of properly taking care of himself or of his property.

There is no doubt that the plaintiff by virtue of her appointment as guardian became charged with the duty, inter alia, of protecting and controlling the person of the defendant and, when for his best interest, of bringing suits in his behalf. Sections 10507-15 and 10507-16, General Code. Her duty precluded her from taking an antagonistic position under any circumstances. However, having done so, the question presented by this motion is how the ward can protect himself from such hostile attitude. Has he the legal capacity to prosecute an appeal in his own proper person ?

In Section 11247, General Code, it is provided that “the action of an insane person must be brought by his guardian,” and by Section 11249, General Code, that “the defense of an insane person must be by his legally appointed guardian, except that if * * * he has an adverse interest, by a trustee for the suit, appointed by the court.” The trustee is required to swear to faithfully discharge his duties.

In 28 American Jurisprudence, 738, Section 105, it ;is said:

“Although subject to certain exceptions hereinafter noted, as a general rule, where the alleged insane party has been adjudged incompetent, and a conservator, ¡guardian, or committee has been appointed for him, he may not institute an action in his own name or by a next friend, but such action must be commenced by the conservator, guardian, or committee.”

And, at page 739, after noting that where there is a conflict between the interest of the ward and the guardian, in some jurisdictions, an action is permuted by the ward by his next friend, the text continues, “other courts, however, refuse to recognize the right of an insane person to bring suit by a next friend, although the interests of the insane person and the guardian are antagonistic. In such jurisdictions, action must be instituted in the court in which the original guardian was appointed, asking for the removal of such guardian and the appointment of another. ” See, also, Isle, Admx., v. Cranby, 199 Ill., 39, 64 N. E., 1065, 64 L. R. A., 513, and annotation in last cumulative citation where cases are collected and classified.

Ohio seems to be in the list requiring actions to be prosecuted by the duly appointed guardian, so long as the court appointing him permits him to continue to act. In 22 Ohio Jurisprudence, 86, Section 40, it is stated:

“In Ohio the statute requires that ‘the action of an insane person must be brought by his guardian.' The effect of this statute on the. right of an insane person to sue by a next friend is obvious if a legal guardian has been appointed. The Ohio Supreme Court has held that an action to recover property belonging to an imbecile must be brought by guardian, and' not by the next friend, since the guardian is responsible to the court for his conduct, and the next friend is responsible to no one. If the legal guardian is neglecting to bring an action to recover the property of his ward, the Probate Court should, upon motion and a showing of that fact, remove such guardian and appoint another who will bring the proper action. ’ ’

The only case cited in support of the text is Row v. Row, 53 Ohio St., 249, 41 N. E., 239. So far as we have been able to discover it is the only Supreme Court case on the subject. It fully supports the text.

In the instant case, the ward was in the position of a defendant as to plaintiff’s petition and of a plaintiff as to his cross-petition. If an action could be maintained only by the guardian, it would seem to follow that the guardian should represent the ward when he filed a cross-petition.

Our conclusion is that this motion to dismiss must be sustained. If, as we find the law of Ohio to be, after an adjudication of incompetency and the appointment of a guardian, the ward must prosecute actions through his duly appointed and acting guardian and not through a next friend or trustee for the suit, by all the stronger reasons the ward cannot prosecute an appeal in his own person without the intervention of either.

As we view the law of Ohio on this subject, when a duly appointed guardian takes an antagonistic attitude toward the ward and institutes an action against the ward to assert some personal right against him, all proceedings in such action should be postponed until the court having jurisdiction to appoint and remove the guardian has exercised that jurisdiction by removing the disloyal guardian and appointing a successor who will, without any divided loyalty, represent the ward in the litigation.

For these reasons, the motion to dismiss this appeal is sustained.

Motion sustained.

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

Ross, J.,

concurring. 1 concur in the syllabus and the entire opinion of my associates.

At the risk of a charge of uttering obiter dictum, I think it should be stated that from the opinion of the court it is manifest that the judgment of the trial court is absolutely void as far as the incompetent defendant is concerned, and that if the plaintiff should remarry, she would be guilty of bigamy.