text:
    Jamison, Appellant, v. Lindblom et al., Appellees.

      (No. 926
    Decided June 29, 1951.)

      Messrs. Zupp & Atha, for appellant.

      Messrs. Campbell, Thompson é Finefrock, for appellees.
   Guernsey, J.

This is an appeal upon questions of law and fact from a judgment of the Common Pleas Court of Logan County, Ohio, in an action wherein Hugh Jamison, the appellant, was plaintiff, and Miriam J. Lindblom and C. Martin Lindblom, the appellees, were defendants.

By stipulation of the parties, the cause was submitted to and tried by the court upon the transcript of the evidence, proceedings, and record upon the trial of the cause in the Common Pleas Court.

The plaintiff is the lessee and the defendants are the lessors in a certain written lease of a certain business room in the city of Beliefontaine, Logan county, Ohio, entered into between the parties under date of the 14th day of March,- 1945, whereby the lessors leased said business room to the lessee for a term of five years beginning on the 1st day of April, 1945, and ending on the 31st day of March, 1950, inclusive, at a rental and upon the terms and conditions therein specified. Said lease, among other things, contained a provision as follows:

“It is mutually covenanted and agreed by and between said lessors and lessee as follows:

“(1) That at the expiration of the within lease the lessee herein shall have the right of refusal of a new lease of said premises for a price to be agreed upon by the parties, before the same are leased to a party other than this lessee.5 ’

Upon the 19th day of February, 1951, the plaintiff filed this action in the Common Pleas Court to require defendants to execute to him a new lease of said premises for a term of five years from and after March 31, 1950, at a reasonable rental value to be fixed by the court, and to enjoin the defendants from commencing a proceeding in forcible detainer against plaintiff during the pendency of the action, and for such other relief as the application of equity may require.

From the transcript of evidence in the case it appears that the plaintiff has remained in possession of the premises in question since the expiration of the term of said lease, paying rental therefor at the rate prescribed in said written lease; that the defendants, although requested by him, have failed to execute and deliver to him a new lease for said premises for a term of five years from and after the 31st day of March, 1950; and that the defendants have arranged to lease said premises and an adjoining business room owned by them to a party other than the plaintiff, and have given the plaintiff a notice to vacate said premises.

In support of the remedy asked for by him in his petition, the plaintiff contends that the language of the lease, hereinbefore quoted, has appeared in one form or another in many leases, and is commonly referred to as coming within the “first privilege doctrine,” and that such a provision assures the lessee of the first privilege of reoccupying the premises at the end of Ms term, provided, the lessor desires to again let the premises. If the lessor prefers to occupy the premises himself, hold the property vacant, or sell the same, the lessee has no rights to enforce. Only when the lessor desires to again lease the premises can the lessee assert his right of the first refusal before the same can be leased to other parties. Callahan Co. v. Michael, 45 Ind. App., 215, 90 N. E., 642; Landowners Co. v. Pendry, 151 Kan., 674, 100 P. (2d), 632, 127 A. L. R., 890; Cloverdale Co. v. Littlefield, 240 Mass., 129, 133 N. E., 565; Capital Broom Co. v. Cook, 84 N. J. Eq., 105, 92 A., 794; Halloway v. Schmidt, 33 Misc., 747, 67 N. Y. Supp., 169.

Plaintiff further contends that the following rules of construction are applicable to the quoted provisions of the lease:

“Where all the terms of such a lease are fixed save that the rental for the extended term is to be fixed by agreement between the parties, the fixing of the rental by the court of equity is a matter of form rather than of substance and does not amount to the making of a contract for the parties.” Moss v. Olson, 148 Ohio St., 625, 76 N. E. (2d), 875.

“ ‘As a general rule in construing provisions of a lease relating to renewals, where there is any uncertainty, the tenant is favored, and not the landlord, because the latter, having the power of stipulating in his own favor, has neglected to do so, and also upon the principle that every man’s grant is to be taken most strongly against himself.’ ” Moss v. Olson, supra, at page 633.

“A general covenant providing for the renewal of a lease is sufficiently certain since it implies a new leasing upon the same terms and conditions as the old lease. On the other hand, if the renewal clause provides that the lease may be renewed upon such terms as the parties may agree upon, the same is void for uncertainty.” 3 Thompson on Real Property (Perm. Ed.), 360, Section 1263.

We approve the contention of plaintiff as to the rules of law mentioned applying to clauses of leases of real estate under the laws of Ohio, but note that they apply only to clauses which purport to give to the lessee the right of refusal of a renewal of a written lease.

We will therefore consider whether the quoted provisions of the lease in question in the instant case come within the purview of the rules mentioned.

It will be noted, upon inspection of the elause, that the right given to lessee is not his right of refusal of a renewal lease of the premises for a price to be agreed upon by the parties, but is the right of refusal of a new lease of said premises for a price to be agreed upon by the parties.

A covenant for the renewal of a lease, as distinguished from a covenant for a new lease, contemplates and implies that such renewal lease shall be for a similar term commencing at the expiration of the original lease, and upon similar terms and conditions, whereas a covenant for a new lease, as distinguished from a renewal lease, contemplates and implies only that a new lease shall be given only for such time and upon such terms and conditions as may be agreed upon at the time by the parties.

While it is true that under the decision in the case of Moss v. Olson, supra, hereinbefore quoted from, the court, under the quoted provision of the lease, would have a right to fix the rental for the premises in question, it would not have the right to fix the length of term of the new lease, or the other terms and conditions thereof.

As the length of the term of the new lease and the other terms and conditions thereof, other than the rental to be paid, may be fixed only by agreement ol' the parties, the clause is too indefinite in character to be enforced by specific performance. The court will, therefore, dismiss plaintiff’s petition, at his costs, and assess the other costs in the cause against the plaintiff.

Judgment accordingly.

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


source: Caselaw Access Project

author: Hildebrant, P. J.

license: Public Domain

text:
    Jump, Appellee, v. The City Ice & Fuel Co., Appellant.
    (No. 7579
    Decided June 23, 1952.)

      Messrs. Hoover, Beall, Whitman & Eichel, for appellee.

      Messrs. Marble é Vordenberg and Mr. Edward A. Burke, for appellant.
   Hildebrant, P. J.

A jury in the Court of Common Pleas found plaintiff entitled to participate in the workmen’s compensation fund for the death of her husband.

The principal contention on this appeal is failure to prove that the injury resulting in the death occurred in the course of and arose out of the employment. The burden of so proving rests upon the plaintiff.

Stevens v. Industrial Commission, 145 Ohio St., 198, 61 N. E. (2d), 198, pertinent to the requirements of proof in such a case, states in the syllabus:

“1. Where an employee is killed during working hours at a place distant from the locus of his employment or the situs of his duties, there is a presumption, in the absence of evidence to the contrary, that his death did not occur in the course of and arise out of his employment within the meaning of the Workmen’s Compensation Act.

“2. In a proceeding to recover workmen’s compensation, the burden of proof is upon the claimant to show that the injury to or death of the employee occurred in the course of and arose out of his employment.

“3. It is the duty of a party on whom the burden of proof rests to produce evidence which furnishes a reasonable basis for sustaining his claim. If the evidence so produced furnishes only a basis for a choice among different possibilities as to any issue in the case, he fails to sustain such burden.”

Plaintiff’s decedent was employed by the defendant as a night supervisor between the hours of six p. m. and six a. m. His regular employment required him to report for work at the head office and manufacturing plant of the company located on Livingston street, and known as station. No. 8, where he received instructions concerning the night duties either orally from the day superintendent, who was his immediate superior, or in writing, when, as frequently happened, the day man had left before decedent’s arrival at station 8. He supervised the supply and servicing of some seven substations located in the downtown area of the city, including the west end basin area, lying between the Eighth street viaduct to Price Hill and John street on the east, and including substation No. 54, located in the Southern Railroad yards to the west of the Union Terminal, access to which was from Gfest street, causing the station to be referred to colloquially among defendant’s employees as “Gest street.”

In traveling from his house in Price Hill to report for work at station 8J he customarily boarded a streetcar at Eighth and Elberon, which would proceed eastwardly over the Eighth street viaduct, and on Eighth street to its junction with John street, where he would transfer and proceed northwardly on John street, a distance of some 16 blocks to Livingston street, within a half block of station 8 located thereon. About midway between Eighth street and Livingston street, John street crosses Lincoln Park driveway.

It is not disputed that plaintiff’s decedent was fatally injured at approximately 6:20 p. m., on the evening of December 28, 1948, as a pedestrian being run down by a motor vehicle on the westerly crossing of John street across Lincoln Park drive in the northwest quarter of the intersection.

He was last seen alive by his son to whom he called a personal word while running to catch his street ear at about 5:20 p. m., as claimed by plaintiff, or 5:40 p. m., as claimed by defendant; the dispute as to time not appearing vital to the court. Within the hour, he was found fatally injured at the John street, Lincoln Park drive intersection.

If he was killed while on the way to work, the claim is not compensable. If killed after having reported to work, either at station 8 or elsewhere at a substation, the claim is compensable.

While admittedly a variation from regular routine, plaintiff sought to show that decedent, with the employer’s acquiescence and knowledge, at times went first to Gest street to cheek the needs of that station, and plaintiff’s theory is that decedent went first to “Gest street,” also known as station 54, in the Southern Railway yards, and then proceeded via a path through the yards to the Union Terminal, where he boarded a bus from which he alighted at the fatal intersection and thus was en route between the stations after having checked on “Gest street,” and thus was injured while in the course of his employment. Plaintiff contends this is the only theory consistent with decedent’s being at the fatal intersection at all.

To establish the irregular practice of reporting first at Gest street on occasion, one Harris, a discharged former employee under decedent at station 8, testified as follows,:

“Q. And where — what plant did you work at? A. Over on Livingston street.

“Q. And what were your hours? A. Prom three to eleven-thirty.

“Q. At night? A. Yes.

“Q. Were you acquainted with Heber L. Jump? A. Yes, sir. He was a night foreman.

“Q. Was he your immediate superior? A. Yes. He took care of everything while he was around there.

“Q. He was your boss? A. Yes, he was boss there when I was there.

“Q. And what were his duties as far as you could observe? A. Well, he would go out and check different places where they were supposed to take ice to keep them filled and check the railroad yards for cars to be iced and took care of things around like that, see that trucks got out for their routes.

“Q. How many places would he have to check? A. Well, there was station 54 and the passenger station, coach yards, and then he would have to go and check the Gest street cars, and out at Marshall avenue down in the bottoms.

“Q. And how would he get around to those different stations? A. They had a pick-up truck down to the ice plant that he always used.

“Q. Now, did you ever have occasion to answer the phone when he called in from one of those stations? A. That’s right.

“Q. And what station would he have occasion to call in from? A. Well, he has called from station 54 down there.

“Q. Where is station 54? A. It’s at G-est street.

“Q. Behind the terminal? A. Yes. It’s back in there at the back of the terminal.

“Q. And is that the Southern Railroad yards? A. Yes.

“Q. And did you ever answer the telephone when he called in from down there before he came up to Livingston street? A. Yes, sir.

“Q. And was there any particular time of night that he would call in from down there or was it early in the evening or during the night or when? A. He had no certain time to call. When he checked these ice stations and they needed ice, why, if he had to go somewhere else to make another check, why, if it was really necessary the ice was took there, why, he called in and left orders for somebody to take a load of ice to that particular place.

“Q. Well, did he call you on the 28th of December, 1948, before he came to work on that night? A. Well, that I don’t know whether he called or not. I wasn’t in the state at that time.

“Q. Now did he ever on any other occasion call you from the G-est street station before he came up to Livingston street on his way to work? A. Yes, he has. ’ ’

Plaintiff’s son testified concerning a conversation had with the day supervisor, who was decedent’s immediate superior;

“Q. Don, Mr. Marble asked you about your conversation with Mr. Vitt about your father’s death. What was your conversation with Mr. Vitt about your father’s death? A. Well, he come up to the house and he says he couldn’t understand why he would be at John and Parkway unless he was coming from 54. He says he couldn’t understand where he would be coming from, why he would be there, unless he was coming from 54 like he used to do many a night. ’ ’

Plaintiff testified as to the statement of the day Superintendent, Vitt, as follows:

“Q. And what was the conversation that took place at that time, Mrs. Jump? A. Well, Mr. Vitt walked in, and he was very broken up. He was crying. He said he hated to hear about it. And I said, ‘Well, Mr. Vitt, I can’t understand what he was doing up there. ’ He said, ‘Well, I can’t either, Mrs. Jump, unless he had visited Gest street first.’ That is what he said to me that night.”

This is all the evidence offered by plaintiff tending to show a variation in practice of reporting for work by the decedent. There is no evidence that he went to station 54, or that he was seen there on the evening of the fatal injury.

At the call of the defendant, an employee subordinate to the decedent, and whose situs of employment was Gest street, or station 54, testified as follows:

“Q. Now, on December the 28th, 1948, were you there from seven in the morning until seven o’clock that night? A. Yes, sir.

6 ( * # #

“Q. Now, did you know Mr. Heber Jump? A. Yes, sir.

“Q. Do you recall the evening of December the 28th, 1948, when he was killed? A. Yes, sir.

“Q. You may state whether or not at any time that evening, say from five to seven o’clock, lie was in or about the Gest street yards? A. No, I didn’t see him;, no, sir.

“Q. And you were there all the time? A. Yes, sir.

£ £ & # #

“Q. Did you see him at the Gest street yards? A. "Well, I have saw him there in the mornings, yes. Ho would come over for a load of ice, and so I said, ‘What you doing down there?’ And he said, ‘I come over for this load of ice.’ And I said, ‘Let me drive you home.’ But he said, ‘I’m going to walk home.’ And I said, ‘I’ll be glad to drive you.’ And he said, ‘No, I want the exercise.’

“Q. Now, did he .use the company pick-up truck? A. That’s right.

£ £ #

“Q. Now, you weren’t in the city ice station there at all times during your 12 hours, Avere you? A. Well, we was up on the platform back and forth; yes, sir.

“Q. I mean, when you weren’t icing cars you didn’t have to be right there, did you? A. Well, sure, because I never knowed when something was coming in that we have to take care of it.

“Q. Well, you usually knew a half-hour or an hour in advance when a car was coming in? A. Not all the time; no, sir. Sometimes they don’t give you any notice at all. They shove them in there and wait till you ice them.

£ £ # * #

“Q. Now, you said in your affidavit which you gave to the investigator that you had on several occasions seen Mr. Jump walking along Gest street — A. That’s right.

‘ ‘ Q. — toward the .Livingston street plant ? A. That’s right, that’s right, that’s right. And I offered to’ pick him np. And he said, ‘No; I walk all the way home. I walk for exercise.’ That’s right.

‘ ‘ Q. Did you ever see Mm stop in the station there ? A. No. I haven’t; no, sir.

“Q. On his way over to Livingston street? A. No, sir, I haven’t.

“Q. He could have, though, without you seeing him; is that right, sir? A. Well, I don’t see how he could—

“Q. Well — A. If he come there, I probably would have seen him because we were right there and the boys all, too. If he would come around, he would probably look me up or something to tell me something.

C 6 % # #

“Q. Mr. Bennie, you stated a bit ago that on one or two occasions you saw him there in the morning? A. Yes, sir, that’s right.

“Q. And I think you said he rode over on a- — A. Truck load of ice.

“Q. — Truck load of ice and then walked home from that? A. That’s right, that’s right.

“Q. That was after he concluded his duties in the morning? A. That’s right.

“Q. But you never saw him do that in the evening? A. No, sir; no, sir. ,

“Q. And you didn’t see him at all on the evening of December 28, 1948? A. No, sir.”

The record reveals that a pickup truck was available to decedent at station 8, and it was routine for him to use it in visiting the substations and it was routine for him to pick up reports of existing requirements, conditions of ice at the various substations near the close of his night’s duties for the purpose of relaying them to the incoming day superintendent, either orally or in writing, in case he departed before the day man arrived.

The record reveals also that decedent had a penchant of walking for exercise when the opportunity was available to him,

It also appears that the icing requirements for car shipments of perishables handled at Gest street station 54 were at the lowest ebb of the year on Tuesday, December 28, 1948, as reflecting on the possibility of the decedent having stopped there before proceeding to his regular headquarters at station 8, on Livingston street.

The record shows further the seasonal darkness of the evening of December 28, 1948, and that it was wet and rainy.

Does this state of the record balance and overcome the presumption existing against the claim and furnish a reasonable basis for sustaining the same?

Possibilities anent his being at the particular intersection at the time of being struck are several, to wit: 1. He could have alighted from the street car west of the Eighth street viaduct, and walked over Evans street, or a railroad right of way to Gest street, and thence to station 54. 2. He could have gotten off the street car at Harriett street, east of the viaduct, and walked three squares to the street named Gest, thence by bus to the point of the accident, in which event he had the opportunity of alighting at Linn street and Lincoln Park drive before ariving at the John street intersection, and walking an equal distance north to the Livingston street station. 3. He could have started walking from Eighth street to John street. 4. He could have stopped at Gest street or station 54 and proceeded by bus from the Union Terminal to Lincoln Park drive and John street, as plaintiff contends. 5. He could have walked right past Gest street or station 54 on his way to the Fruit Growers’ Express office, where he was formerly employed, for some personal reason of his own.

The mention of the above possibilities does not exclude other hypotheses as to how he arrived at Lin-coin Park drive and John street, which, while not obvious, might appear simple enough, if known.

It, therefore, appears that the record before us furnishes only a basis for choice among different possibilities as to why he was where he was when run down, and as to whether or not he was in the course of his employment.

Such being our conclusion, the plaintiff has failed to sustain the burden of proof incumbent upon her.

We find no other error apparent on the record, prejudicial to the defendant.

The judgment is, therefore, reversed, and the cause remanded, with instructions to enter final judgment for the defendant.

Judgment reversed.

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


author: Doyle, J.

text:
    Seitz, Appellee, v. Seitz, Appellant.
    (No. 22067
    Decided February 26, 1951.)

      Mr. S. C. Rex and Mr. Clifford E. Bruce, for appellee.

      Mr. B. J. McClushey, for appellant.
   Doyle, J.

On September 8, 1948, in the Court of Common Pleas of Cuyahoga County, a decree of divorce was granted Ruth R. Seitz, appellee herein, against her husband, Harold Seitz, appellant. Theretofore, the parties had entered into an agreement of separation and property settlement, in which specific provision was made for the custody and maintenance of the children born as the issue of the marriage. This provision appears in the following terms:

“Both parties hereby agree that an order of permanent support made by the Court upon the granting of an absolute divorce in the amount of thirty-five-dollars ($35.00) per week to be paid through the Court, would be fair and equitable for the three children: Warren Rogers, Patricia Rogers and Barbara Jane. The husband shall so pay for the support, maintenance, care, custody and education of the children of the marriage, until they respectively reach the age of twenty-one years, or sooner die or marry. No provision is made herein for higher education of said children, it being the intent of the parties that the husband shall provide the same if he is able to do so. ’ ’

In the judgment entry, the following language appears :

“It is further ordered, adjudged and decreed that the custody of the minor children, aforesaid, be and is hereby awarded to the plaintiff, and the defendant pay to the plaintiff for the support of said minors the sum of thirty-five dollars ($35.00) per week until the further order of this Court.”

Subsequent to this provision in the judgment entry the following appears:

“The Court further finds that the parties to this transaction have entered into an Agreement of Separation and Property Settlement, under date of August 6, 1948, which the Court finds to be fair, just and equitable.

“It is further ordered, adjudged and decreed that this agreement should be and hereby is incorporated in the Journal, as if fully rewritten, as part of this decree, and the terms of this agreement are ordered into execution as an order of this Court the same as if fully rewritten herein, and the Court reserves jurisdiction in this cause for the purpose of compelling either party to perform the agreement or any part thereof on his or her part to be performed. Said agreement is attached hereto and marked ‘Exhibit A.’ ”

In the year 1950, a motion was filed in the case by the former husband, Harold, in which he asked for a modification of the order for the support and maintenance of the children made in the divorce decree. He gave as his reasons a substantial decrease in his income; that “he does not earn more than $60 per week”; that “he is unable to comply with the order of the Court,” and that “at the present time he is compelled to live upon the generosity of others.”

When the motion came on for hearing before a branch of the court other than the one which entered the original judgment for divorce, property settlement and support, this court entered the following order, following a refusal to hear testimony on the question of modification:

“Upon consideration, the Court finds that a separation agreement was entered into by and between the parties hereto on August 2, 1948, and that the same was approved by the Court on September 8, 1948, and incorporated in and made a part of the decree of divorce granted to the plaintiff herein. The Court further finds that it does not have jurisdiction to modify the order of the Court made September 8, 1948, as prayed for by defendant in his motion.

“Wherefore, it is ordered that the motion be and is hereby denied. It is further ordered that the defendant pay the cost herein.”

In the appeal to this court from this judgment, entered on the motion, there is presented the claimed error of the court in refusing to hear evidence on the theory that the court lacked capacity to order a modification under the circumstances.

At the threshold of our consideration of this appeal we encounter Tullis v. Tullis, 138 Ohio St., 187, 34 N. E. (2d), 212. The syllabus is as follows:

“A decree in a divorce action, unconditionally fixing the amount and method of payment by the husband for the support of a minor child pursuant to and in accordance with a previous contract of separation between the husband and wife providing for complete property settlement and support to their minor child, which contract is specifically approved by the court and made a part of the decree, may not, in the absence of- fraud or mistake, be subsequently modified by the court so as to lessen the amount of support for such minor child.”

From the statement of facts and events as shown in the record here under consideration, it appears that the court approved the contract and made it a part of the judgment. If the court had stopped there and had not further made provision for the children’s support, the rule in Tullis v. Tullis, supra, would apply and a modification could not be made lessening the amount of payments. But the court went further and ordered the payment of “thirty-five dollars ($35.00) per week until further order of this court.”

In construing the provisions of this judgment we must apply the usual canons of construction. If a judgment is susceptible to two possible interpretations because of the words and phrases used, an interpretation will be adopted which gives effect to the judgment in its entirety rather than an interpretation which would eliminate a part.

It is presumed that the court, when approving the original journal entry here under attack, had before it the case of Tullis v. Tullis, supra, and intending to maintain the right of the court to modify the order of support for the minor children, if conditions changed, inserted specific language to accomplish this purpose, even though such language in part was a duplication of the language in the incorporated contract. In other words, it was the intention of the court to approve and adopt the entire contract, excepting only the legal effect of such, under Tullis v. Tullis, supra, which was specifically rejected by a reservation retaining jurisdiction in respect of the terms of support of the minor children by the use of the language “until further order of this court.”

Under this construction of the provisions of this judgment, we are of the opinion that the court erred in refusing to try the issue presented by the motion to modify because of the reserved continuing jurisdiction. The judgment will be reversed and the cause remanded for hearing.

Judgment reversed and cause remanded.

Skeel, P. J., and Hurd, J., concur.

Doyle, J., of the Ninth Appellate District, sitting bv designation in the Eighth Appellate District.


author: Ahl, J.

text:
    W. W. Grainger, Inc., Appellee, v. Linger, d. b. a., Ohio Supply Co., Appellant.
    (No. 531
    Decided May 10, 1952.)

      Mr. Francis M. Marley, for appellee.

      Mr. W. S. Snook, for appellant. ■
   Ahl, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Hancock County, affirming a judgment of Garver Oxley, a justice of the peace for Findlay township, Hancock county, Ohio.

The judgment of the justice of the peace was rendered in a cause pending before him wherein appellee was plaintiff and appellant was defendant.

The judgment in the justice court was rendered by default on September 14, 1950, in the sum of $41.50.

The appeal from the justice court to the Common Pleas Court, upon which the Common Pleas Court rendered its judgment of affirmance, was one on questions of law.

There is no bill of exceptions of the proceedings had in the justice court.

The records of the justice court and the Common Pleas Court in this cause disclose the following facts:

Judgment was rendered in the justice court on September 14, 1950.

An appeal bond was filed September 21, 1950.

A notice of appeal on questions of law was filed September 21, 1950.

A transcript of proceedings in the justice court and original papers in the cause, including a bill of particulars, appeal bond, and notice of appeal were filed in the Common Pleas Court on September 27, 1950.

The petition of plaintiff was filed in Common Pleas Court October 10, 1950.

Defendant’s assignment of errors was filed in Common Pleas Court November 21, 1950.

Defendant’s motion for leave to plead in Common Pleas Court was filed April 27, 1951.

Defendant’s answer and cross-petition was filed in Common Pleas Court May 7, 1951.

The decision of Common Pleas Court was filed September 18, 1951.

While a decision of a Common Pleas Court is not ordinarily a part of the record in the cause, the decision in this cause reflects certain of the proceedings had by the Common Pleas Court in its consideration of the cause, and will be considered for that purpose only.

An inspection of the bond discloses that it conforms to the requirements of Section 10383, General Code, and that, under Sections 12223-3 and 10382 to 10398, General Code, it had the effect of constituting an appeal upon questions of law and fact from the justice of the peace court to the Common Pleas Court. That appeal was thereafter fully and completely perfected by the plaintiff: filing its petition and the defendant filing his answer and cross-petition in the Common Pleas Court.

Consequently, at the time the cause was heard in the Common Pleas Court on the appeal on questions of law, there were pending in that court the perfected appeal on questions of law and fact and the appeal perfected on questions of law by giving written notice of appeal in the justice court.

The decision of the Common Pleas Court, appearing among the original papers filed in this court, discloses that the defendant-appellant contended in the Common Pleas Court that he was entitled to have the cause heard as an appeal on questions of law and fact.

The Common Pleas Court, in its written decision, held that if this were an appeal on questions of law and fact the appeal would have to be dismissed because Rule 1 of the Common Pleas Court had not been complied with by the defendant.

The Common Pleas Court, in its written decision, explains that Rule 1 of the court provides that copies of all pleadings must be mailed to opposing counsel and a statement that the same has been done shall be filed with the clerk of courts.

The judgment of the Common Pleas Court from which the appeal to this court is taken, discloses that the appeal from the justice of the peace court was considered as an appeal on questions of law only, and the judgment of the justice of the peace court was affirmed on such appeal.

The judgment entry does not purport to dismiss the appeal on questions of law and fact so that the appeal on questions of law and fact still stands of record in the Common Pleas Court, undisposed of.

The rule of court quoted by the trial court iu its decision does not prescribe that a cause may be dismissed for failure to comply with said rule. The decision of the court that the appeal should be dismissed for appellant’s failure to comply with rule 1 was unwarranted.

Consequently, at the time the Common Pleas Court rendered the judgment appealed from there were two perfected appeals from the justice of the peace court standing before it. One, an appeal on questions of law and fact which would afford appellant full relief both as to law and fact, and the other, an appeal on questions of law only which would afford appellant relief only as to errors of law committed in the justice of the peace court.

The action of appellant in contending that the cause should be tried as an appeal on questions of law and fact instead of an appeal on questions of law only constituted an election on his part to submit the appeal on questions of law and fact and not as an appeal on questions of law only, which, if such election had been approved by the Common Pleas Court, would have necessitated the dismissal of the appeal on questions of law only.

The Common Pleas Court erred in not approving said election and in considering the appeal on questions of law only when an appeal on questions of law and fact was pending, and for these errors, which were prejudicial to appellant, the judgment of the Common Pleas Court is reversed at costs of appellee, and this cause is remanded to the Common Pleas Court for a new trial, with instructions to that court to approve appellant’s election, dismiss the appeal on questions of law only, and to try the cause as an appeal on questions of law and fact.

Judgment reversed.

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


author: Per Curiam.

text:
    Kalis, Appellee, v. Henlein Brothers Co., Ltd., Appellant.
    (No. 7571
    Decided June 9, 1952.)

      Mr. George Bailes, for appellee.

      Mr. Mark M. Reynolds, for appellant.
   Per Curiam.

Defendant’s agent solicited the plaintiff for an order for a shirt, representing himself to be a salesman for defendant, a manufacturer of shirts.

Plaintiff gave color, style and measurements in ordering a shirt from the agent.

Upon request of the agent, plaintiff without inquiry of any kind paid to the agent the purchase price of $16 and the agent tendered a receipt therefor, upon the face of which the agent’s authority to collect was limited to 25 per cent of the purchase price.

The Municipal Court, without a jury, allowed recovery of the full purchase price from defendant, who had offered to confess judgment for $4, or 25 per cent of the purchase price. That is the judgment appealed from.

In 1 Ohio Jurisprudence, 698, Section 45, it is stated:

“The general rule is that one authorized to sell or find a market for commodities has no implied authority to collect or receive payment therefor * #

In 2 American Jurisprudence, 102, Section 126, it is stated:

“It is established by the great weight of authority that an agent other than a factor or auctioneer, authorized to sell or find a market for commodities, has, merely by virtue of such authority, no implied authority to receive or collect payment therefor. The purchaser, in paying the price to such agent, does so at his peril in the absence of other circumstances indicative of authority to collect or receive payment, and it devolves upon him, in a suit by the principal for the purchase money, to prove that the agent was authorized to receive the payment.”

And, at page 103:

“The rule negativing the implied authority of a mere sales agent to receive payment of the price has been applied in the case of brokers and traveling salesmen or drummers. As to the latter, the general rule is that che mere fact that an order was taken by a traveling salesman or drummer does not of itself confer implied or ostensible authority subsequently to receive payment; this is especially true where the authority of such salesman is merely to solicit orders to be transmitted to his principal for acceptance.”

It was held in Taylor v. Wilson, 44 Ohio App., 100, 183 N. E., 541, in the fifth paragraph of the syllabus:

“Generally, principal is not responsible for agent’s deceit, unless agent was authorized to deal with property in such manner that principal should be bound in good morals and equity by agent’s statements.”

There is no evidence in the record of plaintiff, upon whom rested the duty to ascertain the extent of the salesman’s authority, making any effort so to do.

We, therefore, find that no substantial evidence to sustain the judgment appears of record, and the same is reversed, and the cause remanded to the Municipal Court of Cincinnati, with instructions to enter judgment for plaintiff in the amount of $4, which was offered by the defendant, and assess against the plaintiff the costs of this appeal.

Judgment reversed.

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


author: Wiseman, J.

text:
    Giordano, Appellant, v. Amrine, Supt., Appellee.
    (No. 183
    Decided March 1, 1952.)

      Mr. Joseph Giordano, in propria persona.

      Mr. C. William O’Neill, attorney general, and Mr. Max Dennis, for appellee.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Madison County refusing to release petitioner from custody in a habeas corpus proceeding.

The petitioner was indicted, tried, and convicted as an habitual criminal in Columbiana county. He was sentenced to the Ohio Penitentiary for a term of not less than 25 years.

The petitioner questions the constitutionality of the Habitual Criminal Act, the legality of the indictment, and the validity of the sentence. The indictment properly charged the petitioner with having been convicted of three crimes enumerated in the act. Section 13744-1, General Code. This court held in State v. Mahoney, 59 Ohio App., 58, 17 N. E. (2d), 277, that the Habitual Criminal Act is constitutional.

The petitioner contends that under Section 2166, General Code, the sentence should not have been for a definite term and is, therefore, void. Under the provisions of Section 2166, General Code, sentences shall be ‘ ‘ general and not fixed or limited in their duration. ’ ’ However, in Section 2166, General Code, it is expressly provided that should the sentence be for a definite term “it shall not thereby become void, but the person so sentenced shall be subject to the liabilities of this chapter and receive the benefits thereof, as if he had been sentenced in the manner required by this section. ’ ’ Furthermore, the defect in the sentence is not jurisdictional. In re Winslow, 91 Ohio St., 328, 110 N. E., 539. In State, ex rel. Dye, v. Alvis, Warden, 86 Ohio App., 137, 90 N. E. (2d), 416, this court recently held that ‘ ‘ a defect in the sentence is not jurisdictional. ’ ’ Habeas corpus does not lie to review such sentence, the proper remedy being an appeal.

As we find no error in the record prejudicial to the rights of the petitioner, the judgment is affirmed.

Judgment affirmed.

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


author: Hurd, J.

text:
    The Cleveland Trust Co., Appellee, v. The Village of Brooklyn, Appellant.
    (No. 22342
    Decided May 19, 1952.)

      Messrs. Halle, Haber, Berick & McNulty, for appellee.

      Mr. Owen E. McAdams, Mr. Boy C. Scott and Mr. Michael L. Hearns, for appellant.
   Hurd, J.

This is an action originating in the Common Pleas Court of Cuyahoga County, wherein the zoning ordinance of the village of Brooklyn was declared to be illegal and void to the extent that it included plaintiff’s property within a residence classification. It is appealed here on questions of law from a judgment enjoining the officials of the village of Brooklyn from attempting to enforce the provisions of such ordinance as to plaintiff’s property, and from an order requiring the village to permit occupancy of plaintiff’s property in accordance with the industrial use classification of such ordinance.

The essential facts are not in dispute. The plaintiff, The Cleveland Trust Company, holds the legal title to four adjacent unimproved parcels of land located in the village of Brooklyn and the city of Cleveland, which parcels front on the west side of Tiedeman road. These parcels have a frontage of approximately 1100 feet, commencing at the northerly right of way of the New York Central Belt Line Railroad and extending north 1100 feet and west to the Baltimore & Ohio Railroad. The most westerly parcel consisting of 31 acres is located in the city of Cleveland and is situated in the triangle between the two railroads and the Cleveland-Brooklyn boundary line. It is zoned by the city of Cleveland for general industrial purposes and is not involved in this action. The balance of the land comprising approximately 61 acres is situated within the village of Brooklyn and is zoned entirely for residential purposes. The Brooklyn area is divided into three parcels, as follows: (1) A narrow strip having a width of 52 feet, fronting on Tiedeman road, adjacent to the northerly right of way of the New York Central Railroad; (2) a long narrow strip comprising approximately 14 acres having a frontage of approximately 215 feet on Tiedeman road, located adjacent to the northerly boundary of the 52-foot strip; and (3) a parcel having a frontage of approximately 803 feet on Tiedeman road, adjacent to the northerly boundary of the fourteen-acre tract.

The 31-acre parcel located in the city of Cleveland, together with the narrow 52-foot strip fronting on Tiedeman road and located adjacent to the northerly right of way of the New York Central Belt Line Railroad, and the northerly most parcel having 803 feet frontage on Tiedeman road, were purchased in 1919, legal title thereto being transferred to The Cleveland Trust Company as nominee in 1937.

The 14-acre tract, having a frontage of approximately 215 feet on Tiedeman road, which tract is located between the 52-foot strip and the parcel having 803 feet on Tiedeman road, was purchased in 1942, legal title to the same being placed in The Cleveland Trust Company as nominee.

Zoning ordinance No. 1940-19 of the village of Brooklyn was adopted in November 1940 and includes the entire area of the parcels in question in Class-A Use classification, and limits the use of such premises to dwelling houses, churches, schools, libraries, parks, hospitals and similar uses.

The plaintiff is merely holding legal title as nominee for the benefit of five persons who are owners of the entire tract and who purchased the 14-acre tract or middle parcel two years after the passage of the village zoning ordinance with notice that the property was zoned for residential purposes.

Except for small areas at the intersection of Tiedeman road, Memphis avenue and Biddulph road, which is zoned for C-Use retail business, the development of Tiedeman road is residential in character.

The record shows 43 residential properties on Tiedeman road in Brooklyn village, a number of which are in the vicinity of plaintiff’s property. Of this number, records of the building permits in evidence show 18 residences completed prior to and 25 residences completed after the adoption of the zoning ordinance in 1940. Photographs of a number of these residences are attached to the record as exhibits. The homes pictured are, for the most part, substantial in character and modern in appearance. Of the home owners who testified, three valued their respective properties at $20,000 each, one at $65,000, one at $13,000, and one at $13,500. One owner gave no opinion because, as she stated, her home was not for sale. All these witnesses testified that they investigated the neighborhood before buying and found it to be residential in character.

The record shows that from 1940, the date of the passage of the zoning ordinance, to the filing of plaintiff’s petition, no formal application was made on behalf of the beneficial owners to use their premises for any particular purpose, although there is evidence that two of the beneficial owners protested to council against the adoption of the zoning ordinance because of its effect upon plaintiff’s property and had conversations in respect thereto with the mayor of the village.

The trial court filed findings of fact and conclusions of law, holding that the classification of plaintiff’s property in a Class A or dwelling house district is confiscatory, illegal and void as applied to the premises and constitutes a taking of plaintiff’s property without due process of law in violation of plaintiff’s constitutional rights and that the premises in question fail properly into Class E, or industrial use classification.

In pursuance of these findings, the court issued a mandatory injunction and order, nullifying completely the provisions of the zoning ordinance as it applied to plaintiff’s property, and, in effect, rezoned it for industrial use.

Defendant has filed eight assignments of error, which, summarized, are that the court erred in overruling defendant’s motions for a directed verdict made at the close of plaintiff’s testimony and at the close of all the testimony; that the court erred in finding that the zoning classification was confiscatory and constituted taking of plaintiff’s property without due process; that the findings of fact and conclusions of law are contrary to and not sustained by the manifest weight of the evidence and the law applicable thereto; that the court erred in holding the zoning ordinance of the village of Brooklyn void to the extent that it included plaintiff’s property within a Class A classification and use; that the court erred in indirectly rezoning plaintiff’s property for industrial use by enjoining the village officials from refusing to grant any permit for industrial use of said premises; and that the court did not have jurisdiction of the cause.

For purposes of discussion, these assignments of error may be reduced to three principal questions as follows:

1. Did the trial court have authority to reclassify plaintiff’s property from Class A or residential use to Class E or industrial use ?

2. Was sufficient evidence introduced to warrant a finding by the trial court that the ordinance was arbitrary, confiscatory and unreasonable and, therefore, unconstitutional as it applied to plaintiff’s property?

3. Did the trial court have jurisdiction?

An early authoritative decision on comprehensive zoning and the power of municipalities to forbid erection of buildings of a particular kind or for a particular purpose was rendered in a case which originated in the federal court of this district and which was finally decided by the Supreme Court of the United States. Village of Euclid v. Ambler Realty Co. (1926), 272 U. S., 365, 71 L. Ed., 303, 47 S. Ct., 114, 54 A. L. R., 1016. In that case the court upheld the validity of a zoning ordinance which restricted to residence use a strip of land containing 68 acres along the Nickle Plate Railroad right of way, which land had been purchased with a view to industrial development. That case was followed by Beery v. Houghton, Inspector of Bldgs. (1926), 273 U. S., 671, 71 L. Ed., 832, 47 S. Ct., 474, which upheld the comprehensive zoning ordinance of the city of Minneapolis. This case, in turn, was followed by Zahn v. Board of Public Works (1927), 274 U. S., 325, 71 L. Ed., 1074, 47 S. Ct., 594, wherein the constitutionality of the zoning ordinance of the city of Los Angeles was upheld, and Gorieb v. Fox (1927), 274 U. S., 603, 71 L. Ed., 1228, 47 S. Ct., 675, 53 A. L. R., 1210, upholding the validity of the zoning ordinance of Roanoke, Virginia. Then followed the case of Nectow v. City of Cambridge (1928), 277 U. S., 183, 72 L. Ed., 842, 48 S. Ct., 447, in which the Supreme Court reaffirmed the principles of Village of Euclid v. Ambler Realty Co., and Zahn v. Board of Public Works, supra, but set aside a provision of the zoning ordinance of the city of Cambridge as it applied to a land owner’s property which had been classified as residential property only.

Prior to these decisions, the Supreme Court of Ohio decided the case of Pritz v. Messer (1925), 112 Ohio St., 628, 149 N. E., 30, in which the comprehensive zoning ordinance of the city of Cincinnati was upheld, in addition to which it was held that the benefit of the zoning ordinance accrued not only to the municipality but also to the abutting property owner who had brought the suit. Thereafter the Supreme Court decided the case of City of Youngstown v. Kahn Bros. Building Co. (1925), 112 Ohio St., 654, 148 N. E., 842, 43 A. L. R., 662, in which the ordinance establishing a fraction only of a territory of a municipality into a district and providing that no building intended to be used as a dwelling could be erected within the district, except a single or two-family dwelling, was held unconstitutional. It was held further that the police power cannot be invoked for purely aesthetic purposes or to promote private comfort or private welfare.

This was followed by the case of State, ex rel. City Ice & Fuel Co., v. Stegner, Dir. (1929), 120 Ohio St., 418, 166 N. E., 226, 64 A. L. R., 916, in which a zoning ordinance limiting the subsequent addition, extension or substitution of business buildings was upheld as being a valid exercise of the police power.

In the case of State, ex rel. Clifton-Highland Co., v. City of Lakewood (1931), 124 Ohio St., 399, 178 N. E., 837 (Certiorari denied, 285 U. S., 549, 76 L. Ed., 940, 52 S. Ct., 406), the Supreme Court upheld the validity of the zoning ordinance of the city of Lakewood as it applied to a district zoned for apartment buildings and refused to set aside the ordinance as it applied to this district in favor of the owners who desired to substitute a business building for an apartment building.

In the case of State, ex rel. Synod of Ohio of United Lutheran Church, v. Joseph (1942), 139 Ohio St., 229, 39 N. E. (2d), 515, 138 A. L. R., 1274, the court held that the refusal of a special permit to erect a church in a residential district in pursuance of an administrative policy that no church should be erected in such district while property in the business district was still available was an unreasonable and arbitrary interference with the rights of private property guaranteed by the Ohio Constitution and the Fourteenth Amendment to the Constitution of the United States.

As a result of these and other decisions of state and federal courts, too numerous to cite or discuss herein, certain principles of law in respect of zoning powers of municipialities are firmly established and may be summarized as follows:

Whether the power exists to forbid the erection of a building of a particular kind or for a particular use is to be determined not by an abstract consideration of the building (or buildings), but by considering it in connection with the circumstances and the locality. If the validity of the legislative classification for zoning-purposes is fairly debatable, the legislative judgment must be allowed to control. All zoning laws and regulations must find their justification in some aspect of the police power asserted for the public welfare. The line which in this field separates the legitimate from the illegitimate assumption of power is not capable of precise delineation. The power to limit industrial establishments to localities separate from residential sections is not to be denied upon the ground that its exercise will divert a flow of industrial development from the course which it would naturally follow, and will thereby injure complaining land owners.

Before a court will declare a zoning ordinance invalid it must clearly appear that it has no substantial relation to the public health, safety or morals or the general welfare. Conversely, a zoning ordinance will be declared invalid where it has no relation to public health, safety or morals or the general welfare. Mere aesthetic considerations are not sufficient to restrict the use of property so as to interfere with private uses. The power of a municipality to establish zones and to classify property accordingly is purely a legislative function which will not be interfered with by the courts unless such power is exercised in an arbitrary and unreasonable manner in violation of constitutional guarantees, and the facts to justify interference with the sound discretion of the legislative body must clearly appear from the evidence, and, if debatable, the legislation will be upheld. A determination of whether a zoning classification is unreasonable, arbitrary and capricious must depend upon the facts and circumstances of each particular case under applicable principles of law. Courts will not substitute their judgment for the will of the legislative body. The strong presumption of validity which applies to legislative acts in general, applies with equal force to zoning ordinances.

Guided by these principles, we proceed now to apply the law to the facts of the instant case, discussing the questions in the order posed above.

Considering the first question, the journal entry shows that the court not only rendered a declaratory judgment, but, in addition, issued a mandatory injunction whereby defendant was forever enjoined from refusing to grant any permit or take any other official action deemed necessary or appropriate to enable plaintiff, its successors, assigns and grantees, to develop said premises and to construct buildings thereon and to permit occupancy thereof in accordance with Class E or industrial use classification under the ordinance. This order is challenged as not being within the scope of the court’s authority. The zoning ordinance of the village provides for five separate use classifications, including (a) residential use, (b) apartment house use, (c) retail business, (d) commercial use, and (e) industrial use.

The trial court by its entry ignored the intermediate classifications of (B-l) apartment house, (c) retail business, and (d) commercial use. Granting the jurisdiction of the court in a particular case to declare invalid the whole or any part of a zoning ordinance in appropriate proceedings where the zoning in question is an invasion of constitutional rights, having no relationship to the public safety, health, morals or general welfare of a community, there is a restriction upon the judicial process whereby it is limited to a review of legislation to determine whether the legislative body acted in such an unconstitutional manner. It is fundamental that a court may not legislate. The judicial process is to interpret the law and not to make law. Consequently, the trial court in the instant case was without jurisdiction to determine the ultimate classification of the area in question as a Class E or industrial use by ignoring the other intermediate uses established by the ordinance, and thereby substituting its judgment for that of the council of the village of Brooklyn. Its action in so doing was prejudicially erroneous and would require the reversal or modification of the judgment in- any event, were it not for the more important consideration which will now be discussed, being the second question posed above.

In considering the second question, it should be observed that there is here no challenge of the power of the village of Brooklyn to enact the comprehensive zoning ordinance in question, by virtue of its police powers granted under Section 3, Article XVTII of the Ohio Constitution and the statutes thereunder enacted. Counsel for the plaintiff disclaim any intention to attack the validity of the ordinance in general. Their claim is that the ordinance as applied to this particular tract of property is invalid because it is economically unsound to use the property for any of the purposes permitted by the Class A use under which it, together with a large area of surrounding-property, has been classified. In support of this claim, counsel for the owners in their brief and oral argument urge that the property would be considerably more valuable for industrial purposes than for any other, a proposition which was supported by plaintiff’s two expert witnesses and conceded by tbe one expert witness who testified for the defendant.

We have heretofore pointed out that there is no dispute as to the essential facts, but only as to the conclusions to be drawn from these facts. The facts show that there has been no development in the property of plaintiff in connection with either the 52-foot strip or the northerly most parcel, having 803 feet on Tiedeman road and acquired in 1919, or the 14-acre tract having a frontage of 215 feet on Tiedeman road and purchased in 1942. On the other hand, the record shows that there has been a gradual development of Tiedeman road as a residential thoroughfare, as indicated by the number of residences built both before and after the adoption of the zoning ordinance. Inspection of the zoning map in evidence shows that throughout the entire village no property adjacent to and north of the Belt Line Railroad is zoned for industrial purposes. The commercial and industrial development of the village is south of the Belt Line Railroad and is largely concentrated in the area adjacent to the east and west thoroughfare known as Brook Park road.

It is argued that because that part of plaintiff’s property which is situated in close proximity to the railroads in the city of Cleveland is zoned for industrial purposes, that part without the limits of the city of Cleveland but within the limits of Brooklyn village should necessarily likewise be so classified. This argument fails to take into consideration the residential character of Tiedeman road frontage exclusive of plaintiff’s property and the fact that no other property in the village north of the Belt Line Railroad is in an industrial use classification. True it is that plaintiff’s property would be much more valuable if zoned for industrial uses, but this fact does not in itself render the ordinance unconstitutional.

In 8 McQuillin on Municipal Corporations, 82, Section 25.44, it is said:

‘ ‘ The general rule is that hardship, limitation of use or diminution or increase of value of private property does not in itself render a zoning measure unconstitutional or invalid. Indeed, a zoning ordinance is not necessarily invalid although it is harsh and seriously depreciates the value of property involved. Nor is the test of the validity of a zoning measure its financial advantage or disadvantage to the owner arising from the measure or its enforcement.

^ C * * *

“Mere diminution of market value or interference with the property owner’s personal plans and desires relative to his property is insufficient to invalidate a zoning ordinance or to entitle him to a variance. Similarly, the fact that property is more valuable for an excluded use does not in itself void a zoning restriction. Consistently with these principles, a zoning ordinance may classify property for residential purposes although it can more profitably or beneficially be used for commercial purposes, * * * or for industrial purposes. * * *” (Citing many authoritative federal and state cases.)

Furthermore, the effect of reclassifying plaintiff’s property to industrial use would be highly detrimental to if not destructive of the valuation of other Tiedeman road property owners who purchased property and built homes relying upon the residential character and development of the thoroughfare:

Under all the facts and considered in connection with the circumstances and the locality, can it be judicially determined that the classification of the entire Tiedeman road area for residential purposes was an arbitrary use of the police power, unrelated to the public health, welfare, morals and safety of the community! We do not think so. Even if the question is fairly debatable, the legislative judgment must be allowed to control and the most that can be said for plaintiff’s contention is that it makes a debatable question.

In the case of In re Application of Fox Meadow Estates, Inc., for an Order of Mandamus, 233 App. Div., 250, 252, N. Y. Supp., 178 (Affirmed, 261 N. Y., 506, 185 N. E., 714), the court, in holding that a zoning ordinance which restricted to single family dwellings the remainder of a village outside the territory adjacent to then existing business and apartment house districts was not unreasonable and discriminatory, at page 251, said:

“ * * * The respondent claimed and sought to establish on the trial that the ordinance was arbitrary, unreasonable, discriminatory and confiscatory, because .this particular property was included in the residence district. At most it made a debatable question, and barely that, as to the acts of the village authorities in enacting the zoning plan. It is evident that its sole object was profit, and no one joins in its complaint.

“The law is too well settled to make necessary any discussion. The power of a municipality to determine for itself what plans are necessary to promote the public health, morals, safety, and the welfare, convenience and general prosperity of its people is a legislative question, which may not be interfered with by the courts, except in rare instances. (Matter of Wulfsohn v. Burden, 241 N. Y., 288; Euclid v. Ambler Co., 272 U. S., 365; Zahn v. Board of Public Works, 274, id., 325.)”

Plaintiff argues that the case of Nectow v. City of Cambridge, supra, should be considered as a precedent in this case. That case was decided on a condensed statement of facts taken from the master’s report which states in part that “when the zoning ordinance was enacted, plaintiff in error was and still is the owner of a tract of land containing 140,000 square feet, of which the locus here in question is a part.” It is stated further, in part:

“The effect of the zoning is to separate from the west end of plaintiff in error’s tract a strip 100 feet in width. The Ford Motor Company has a large auto assembling factory south of the locus; and a soap factory and the tracks of the Boston & Albany Bail-road lie near. Opposite the locus, on Brookline street, and included in the same district, there are some residences; and opposite the locus, on Henry street, and in the same district, are other residences. ’ ’

One of the conclusions of the master was:

“ £I am satisfied that the districting of the plaintiff’s land in a residence district would not promote the health, safety, convenience and general welfare of the inhabitants of that part of the defendant city, taking into account the natural development thereof and the character of the district and the resulting benefit to accrue to the whole city and I so find. ’ ’ ’

The Supreme Court held that the finding of the master was determinative of the case. We think the facts of that ease are clearly distinguishable from those of the instant case.

Counsel also cite Wondrak v. Kelly, 129 Ohio St., 268, 195 N. E., 65. That case had to do with a police regulation restricting the height of a fence above the plane of the finished grade of the lots and the distance thereof from abutting lot lines. The court set aside this part of the building code as being unreasonable and arbitrary, holding that aesthetic reasons alone, unrelated to requirements of the public health, safety and welfare, will not justify the exercise of the police power. Clearly that case cannot be considered authority or precedent for this case. Counsel cite also the case of City of Youngstown v. Kahn Bros. Building Co., supra. The facts of that case are also clearly distinguishable from the case at bar. Many other cases are cited by counsel for plaintiff, which we have examined and find inapplicable to the facts of this case.

It seems to us the early case of Village of Euclid v. Ambler Realty Co., supra, is more applicable, particularly in relation to the argument relating to the railroad frontage. The locus in question in that case, as shown in the opinion, is “ a tract of land containing 68 acres, situated in the westerly end of the village, abutting on Euclid avenue to the south and the Nickle Plate Railroad to the north. Adjoining this tract, both on the east and on the west, there have been laid out restrictive residential plats upon which residences have been erected.”

While in that case the entire theory of zoning was under attack, some of the arguments made in that ease are made in the instant case. It was asserted there, as here, that the effect of the enforcement of such an ordinance is to deprive the owners of their property without due process of law. This contention was disposed of in that case. On the reasoning of that case and the other cases, a relatively small number of which we have cited and discussed, we are compelled to sustain the validity of the ordinance challenged here and as it applies to plaintiff’s property.

Up to the present time there have been no changes in the conditions and circumstances surrounding plaintiff’s property which would justify judicial interference with the legislative process. Conceivably, at some future time conditions will change sufficiently to warrant a further consideration of this subject or a plan of development eventually will materialize which, while retaining the Tiedeman road frontage for residence purposes to a reasonable depth, will enable plaintiff to use the remainder of the property for some purpose other than exclusively residential, if then desired, but this, as well as the other questions herein discussed, are legislative problems which must of necessity be left to the consideration of the village council. Certainly these questions cannot be determined in the first instance by the judicial process.

This leaves for consideration the third question above cited relating to jurisdiction. Defendant contends that the trial court erred in overruling plaintiff’s motion for judgment on the ground that the court was without jurisdiction because of the failure of plaintiff to comply with the provisions of Section 12102-11, General Code, which in substance provides that in any proceeding which involves the validity of a municipal ordinance, where the ordinance is alleged to be unconstitutional, the attorney general of the state shall also be served with a copy of the proceedings and is then entitled to be heard.

In view of our holding on the merits of the case and in view of the fact that the question of jurisdiction in relation to the statute was not raised in the trial court, we are not constrained to consider it here.

In conclusion, we hold that on the face of the record and the admitted facts, it is not clearly established that the zoning ordinance of the defendant village is unreasonable, arbitrary or capricious or that it has no relation to the public health, safety, morals or the general welfare. Therefore, the trial court erred prejudicially in holding that the zoning ordinance as applied to plaintiff’s property is an unconstitutional exercise of the police power.

In view of this, the trial court should have granted the motion of defendant for judgment at the close of all the evidence.

For the reasons stated, the judgment of the Common Pleas Court is reversed, and, proceeding to enter the judgment which the trial court should have rendered, final judgment is entered for the defendant.

Judgment reversed.

Skeel, P. J., and Thompson, J., concur.


author: Thompson, J.

text:
    Save-Way, Inc., Appellee and Appellant, v. New York Central Rd. Co., Appellant and Appellee. (Three cases.)
    (Nos. 4587, 4602 and 4607
    Decided December 14, 1951.)

      Messrs. Fuller, Harrington & Seney, for Save-Way, Inc.

      Messrs. Doyle, Lewis & Warner, for New York Central Railroad Company.
   Thompson, J.

Three cases are in this court on appeals on questions of law as the result of a judgment in favor of the plaintiff in the Common Pleas Court of Lucas County, in a negligence action brought by Save-Way, Inc. against the New York Central Railroad Company.

On June 5, 1951, the Common Pleas Court entered judgment on a verdict of a jury in favor of plaintiff and against defendant in the sum of $18,510.66 and costs. On June 12, 1951, the defendant filed a motion for new trial. This motion was overruled by the trial court on June 29. The defendant thereupon filed a notice of appeal on July 17, and the case was docketed in this court under Court of Appeals case No. 4587. No bill of exceptions was filed by the defendant by August 8th, which was the fortieth day after the overruling of the motion for new trial, and no further action of any kind in the ease was taken by defendant subsequent to the notice of appeal on July 17 until September 6th. On the latter date, defendant filed a motion in the Common Pleas Court to vacate the trial court’s order of June 29, overruling defendant’s motion for new trial, and requested an oral hearing on the motion.

On September 7,1951, over plaintiff’s objection, and after oral hearing, the trial court granted defendant’s motion to vacate the order of June 29, 1951, which had overruled the motion for new trial and thereupon set that motion for new trial for rehearing at 2 o’clock in the afternoon of the same day. Subsequently, on the same date, the trial court again overruled the motion for new trial.'

On September 24, defendant filed a notice of appeal from the trial court’s order of September 7th, which had overruled the motion for new trial, and this appeal was docketed in this court as Court of Appeals case No. 4602. On September 26, plaintiff in turn filed a notice of appeal from the court order of September 7th which had granted defendant’s motion to vacate the order of June 29, which appeal is docketed in this court as Court of Appeals case No. 4607.

On October 10, defendant’s bill of exceptions was filed in the Common Pleas Court. On the same day, plaintiff, in Court of Appeals case No. 4587, filed a motion to dismiss defendant’s appeal on the ground that the latter had failed to file assignments of error, brief, and a bill of exceptions within the time required by Rule VII of the Court of Appeals. Also, on October 10th, in case No. 4602 in this court, plaintiff moved to dismiss the appeal for the reason that no notice of appeal was filed in the trial court within the time limited by Section 12223-7, General Code.

On October 26, defendant’s bill of exceptions was filed in Court of Appeals case No. 4602, and on the same date plaintiff filed its bill of exceptions in case No. 4607.

On November 13, plaintiff filed a motion to strike the bill of exceptions in case No. 4602 on the ground that the bill of exceptions had not been timely filed.

The foregoing recitation of facts will indicate that this court, therefore, now has before it for decision three motions and one case on its merits.

All the pertinent facts sufficient for understanding of the grounds for decision of the motions have been recited but to make clear the precise question raised by the case pending for decision on the merits (Court of Appeals case No. 4607), and the alleged error of the trial court, we should note certain additional facts contained in the bill of exceptions, taken at the oral hearing before the trial judge on September 6, 1951, on defendant’s motion to vacate the entry of June 29, and for rehearing of the motion for new trial. The motion to vacate, filed on September 6, was not accompanied by affidavit and merely asked the court for an order vacating the entry of June 29, and for an oral rehearing ‘ ‘ for reasons to be presented to the court on hearing-”

At the hearing on September 6, in support of its motion asking the trial court to vacate its entry of June 29, overruling the motion for a new trial, defendant offered the professional statement of its attorney concerning the reasons why a bill of exceptions had not been filed within the 40-day period subsequent to June 29, and this statement was accepted by plaintiff’s counsel. Under the circumstances, the facts disclosed in the professional statement constitute evidence. These facts show that the original request to have the trial court vacate its entry of June 29, overruling the motion for new trial, was to secure an extension of time for filing the bill of exceptions.

Defendant’s counsel, in his professional statement to the trial court, prefaced his remarks with the explanation that, due to circumstances over which he had no control, it had not been possible to file a bill of exceptions within the period limited under Section 11564, General Code.

Counsel for defendant then referred to various matters he was handling subsequent to June 29, and admitted working at his law office daily from June 29 to July 26. He stated that he worked eight nights and apparently also every day during that period on three or four separate pending cases although suffering considerable physical discomfiture. Rest and medical treatment had been prescribed by a physician and counsel was out of his office for three days after July 26. He was again in his office attending to law business on July 30, and left for Canada at 3 o’clock that afternoon to take a rest, as urged by his physician. He was back at his office on August 9. He admitted working at his office August 15 and 16th and the morning of August 17th. He was then away for a few days but was back at his office on August 23, and was there each day from August 27 through August 31.

The foregoing abbreviated statement concerning the time spent at his law office on legal work does not cover counsel’s reference to the court reporter. As to the latter, there was a purported conversation suggesting that the court reporter was at some time intending to take a vacation, but there is no statement that he went on a vacation or was ill or that he was in any way responsible for failing to prepare the bill of exceptions.

Defendant’s counsel concluded his professional statement with the plea that on the basis of circumstances beyond his control, his health and other matters which he did not believe could be possibly construed as wilful neglect or bare negligence on his part, the court ought to vacate the ruling theretofore made.

Despite a reference to the court reporter, the record shows that defense counsel in argument before the trial judge frankly declared that his own inattention and indisposition constituted the primary reasons for failure to file a bill of exceptions. He further frankly conceded that the sole purpose of asking the trial court to vacate the entry of June 29, overruling the motion for new trial and of having the order reentered on September 7, 1951, was to extend the time for filing the bill of exceptions. The situation involved was one naturally arousing the sympathy of the trial court, and of this court, for courts are reluctant to see a case finally disposed of on a basis other than the merits.

The question for our decision, however, is the extent of discretion vested in the trial court under the statutes of this state, which provide for the time within which a bill of exceptions shall be filed and an appeal perfected. Section 11564, General Code, with reference to the time for filing a bill of exceptions, declares:

‘ ‘ When the decision is not entered on the record, or the grounds of the objection do not sufficiently appear in the entry, or the objection is to the decision of the court on a motion to direct non-suit, or to arrest the evidence from the jury, or for a new trial for misdirection to the jury, or because the verdict, or if a jury is waived, the finding of the court is against the law and the evidence, or on the admission or rejection of evidence, the party excepting must reduce his objections to writing, and file them in the cause, not later than forty (40) days after the overruling of the motion for a new trial, or the decision of the court, when the motion for a new trial is not filed. * * *”

Examination of the foregoing language fails to reveal any opportunity for the exercise of discretion by the trial court in interpretation of the statute, either in the interest of substantial justice or otherwise. There is no provision giving the court the right, for good cause shown, or due to unavoidable accident, or to prevent a miscarriage of justice, to extend the 40-day period for filing the bill of exceptions. Employment of the word, “must,” in the statute, in connection with the provision for filing the bill of exceptions within 40 days, evidences the mandatory character of the requirement. That the time mentioned is mandatory has been held in numerous Ohio cases. Pace v. Volk, 85 Ohio St., 413, 98 N. E., 111; Amicon v. City Ry. Co., 86 Ohio App., 186, 87 N. E. (2d), 889; Brainard Instrument Co., Ltd., v. F. H. L. Corp., 55 Ohio App., 127, 9 N. E. (2d), 178.

The only question then remaining is whether the trial court is elsewhere vested with such authority over its own orders that it may vacate them as or when it sees fit, in such fashion as to be able to accomplish indirectly what it cannot do directly. To declare that a bill of exceptions must be filed within 40 days after the entry of a judgment or order, and to find at the same time that a court may vacate its judgments or orders at will, and re-enter them again at a later date to accommodate counsel who have not filed a bill of' exceptions within the period prescribed, would be to permit a court to do by indirection what it has no authority directly to accomplish.

In the instant case, the attempted vacation of its previous order by the Common Pleas Court was during term, a period as to which a court recognizedly has greater authority than with respect to judgments and orders sought to be vacated after term. As to the latter, Section 11631, General Code, is controlling. In the case of vacation of judgments and orders during term, the authority of the Common Pleas Court is limited by common-law principles. To the effect that it has not been regulated by statute, see Martinka v. Cleveland Ry. Co., 133 Ohio St., 359, 13 N. E. (2d), 910.

A discussion of the authority of the Common Pleas Court over its judgments and orders during the term of their rendition is found in 23 Ohio Jurisprudence, 1117, 1216, “Judgments,” Sections 959 and 1121. The latter section, discussing the power of the Common Pleas Court to vacate or modify its judgments during term, declares:

“It is a general rule that courts of record or of general jurisdiction, such as the Court of Common Pleas, possess the inherent power of controlling their own judgments, and of correcting, modifying, or vacating such judgments during the term at which they were rendered. This is an inherent power, which in no way is regulated or abridged by statute in Ohio.”

Although the Common Pleas Court has common-law authority to vacate or modify its judgments and orders during term, the law in Ohio recognizes that such court may not vacate an order overruling a motion for new trial and re:enter the same at a subsequent date for the sole purpose of extending the time provided by law for the filing of a bill of exceptions, and that to do so constitutes an abuse of discretion.

On this subject, see 2 Ohio Jurisprudence, 714, “Appellate Review,” Section 387, as follows:

“A Common Pleas Court may not vacate an order overruling a motion for new trial and re-enter the same ruling as to such motion at a subsequent date, for the sole purpose of extending the time provided by law for the filing of a bill of exceptions in an appeal of the cause on questions of law, even though such entries are made within the same term of court, and to do so constitutes an abuse of discretion. A purported bill of exceptions filed under such procedure but more than forty days from the date of the first order is not filed within time. Also, where a motion for new trial is overruled and a formal judgment on the verdict duly entered, and without any attempt during that term of the court to change or expunge from its record or journal the formal judgment so entered, the trial court later puts on another entry overruling the motion for a new trial and entering formal judgment in practically the same language as the previous entry, a bill of exceptions not filed within the statutory period after the first entry overruling the motion, although within such period after the second entry, is not filed within the statutory time and will be stricken on motion. The power of the court over its entries, judgments, and decrees does not encompass the right to extend or change statutory procedural rules. Such action re-entering an order to assist in the perfection of an appeal beyond the time prescribed by law would constitute judicial legislation and cannot be sustained. If a court has no power to extend such time directly, it cannot do it indirectly by changing the date of its overruling of a motion for new trial for that sole purpose. ’ ’

That the Ohio law follows the law generally on this point, see 3 American Jurisprudence, 141, “Appeal, and Error, ’ ’ Section 418, as follows:

“Extension of Time. — The trial court has no inherent power to extend the time for taking an appeal or error proceeding, either directly or indirectly. Thus, where an appeal has not been taken within the required time, the court has no power indirectly to extend the time for appealing by vacating, for such purpose, the judgment, order, or decree, and entering it as of a later date, by a repetition or renewal of an order or judgment, a nunc pro tunc order, an amendment of judgment, notice of appeal, or assignment of errors, a resettle order, a writ of error, or a motion for reargument. ’ ’

See, also, exhaustive annotations on the inability of a trial court indirectly to extend the time for appeal in 89 A. L. R., 941 and 149 A. L. R., 740, and cases cited.

Among the cases cited in 2 Ohio Jurisprudence. 714, Section 387, in support of the foregoing proposition, is Schnitzler v. Lake Shore Coach Co. (Eighth Appellate District, 1942), 69 Ohio App., 265, 41 N. E. (2d), 436, 438. In that case a Common Pleas Court, 42 days after judgment and during the same term, granted a motion to vacate its own order overruling a motion for new trial and thereafter re-entered the same order, it having been admitted by the moving party that the motion to vacate was filed due to the inadvertence of attorneys for plaintiff in failing to file a bill of exceptions. On appeal on questions of law to the Court of Appeals, that court found that the trial court had committed an abuse of discretion.

In the opinion by Judge Skeel, it was declared:

“ * * * There can be no question that the sole purpose of the plaintiff’s motion requesting the vacating and re-entering as of a later date the entry of July 18th overruling plaintiff’s motion for a new trial, was to extend the time for filing the bill of exceptions beyond the 40 days allowed by Section 11564, General Code. * * *

“* * * Ohio recognizes to the full extent of the common-law rule the power of a court over its judgment during term.

it* * *

“But the power of the court over its entries, judgments and decrees does not encompass the right to extend or change statutory procedural rules. Such an act constitutes judicial legislation and cannot be sustained.

“In the instant case, the plaintiff, for reasons not explained in the record, except that by her motion of August 29th she alleges that it was ‘overlooked,’ did not file her bill of exceptions within the 40 days as provided by Section 11564, General Code. If the court, in the sound exercise of its discretion, when considering the facts and circumstances of the case after the motion for new trial had been overruled and after more than 40 days had passed from the date of overruling such motion but yet within term, should find that justice had not been done, the entry could have been vacated, the motion granted and the case ordered retried. But it is quite a different matter to attempt to assist in the perfection of an appeal beyond the time prescribed by law. If the court has no power to extend such time directly it cannot do it indirectly by changing the date of overruling the motion for new trial for that sole purpose.”

For other cases indicating that the action of the trial court in vacating an order overruling a motion for new trial, for the sole purpose of extending the time for filing a bill of exceptions, constitutes an abuse of discretion, see Friedman v. Brown (First Appellate District, 1930), 35 Ohio App., 450, 172 N. E., 565 (Motion to certify overruled April 3, 1930); Sullivan v. Cloud (First Appellate District, 1939), 62 Ohio App., 462, 24 N. E. (2d), 625; Cleveland Provision Co. v. Murphy (Seventh Appellate District, 1934), 17 Ohio Law Abs., 392.

Counsel for defendant have argued that the recent decision of the Supreme Court of Ohio in Tims v. Holland Furnace Co., 152 Ohio St., 469, 90 N. E. (2d), 376, supports the view that a trial court during term may vacate its order overruling a motion for new trial for the sole purpose of extending the time for filing a bill of exceptions, and that that case is controlling of the case before us. We have, therefore, re-examined the Tims case with care to ascertain whether the views of the Ohio Supreme Court are indeed contrary to the cases we have cited, including the Schnitzler case. We find no conflict between them.

The Tims case sets forth the law as understood by this court and lends added support to the reasoning in the Schnitzler case. In the Tims case, there was a failure to file the bill of exceptions within 40 days after the original order overruling the motion for new trial, the failure being due to the illness of the court reporter and not due to inadvertence of litigants or counsel.

The plaintiff Tims recovered a verdict against the Holland Furnace Company. A motion for new trial was overruled and on November 23, 1948, a judgment was rendered for the plaintiff. Subsequently on December 3, 1948, counsel for defendant advised the court that the court reporter who took the testimony in the case was ill and would be unable to prepare a transcript of the record within the statutory period for filing the same in the Court of Appeals, and that, unless such time could be extended, there would be no practicable way of having the bill of exceptions prepared and filed. The trial judge thereupon advised counsel that, since he had control over his orders during term, he would vacate the entry of November 23, and that such entry would again be made as soon as the court reporter had recovered from his illness and was able to prepare the transcript. Accordingly, the order of November 23 was vacated on December 3, and the same order was re-entered on December 23, 1948. Notice of appeal on questions of law to the Court of Appeals was thereafter filed by the defendant on January 8, 1949. Plaintiff then filed a motion in the Court of Appeals to dismiss the appeal on the ground that it was not filed in time, the notice of appeal having been filed on January 8, 1949, within 20 days of the December 23rd judgment entry, but not within 20 days of the November 23rd judgment entry which the plaintiff contended was the final judgment date. The Court of Appeals granted the motion to dismiss. A motion to certify was filed in and allowed by the Supreme Court of Ohio. That court reversed the judgment of the Court of Appeals. The first and second paragraphs of the syllabus of the case by the Supreme Court declare as follows:

“1. To permit the preparation and timely filing of a bill of exceptions by a litigant who is without fault, the Court of Common Pleas, for good cause shown and in the exercise of sound discretion may vacate its judgment during the term in which it was rendered and before an appeal has been instituted, and, later, during the same term, may enter a new judgment, from the date of which latter judgment the period for perfecting an appeal will begin to run.

“2. Such procedure does not contravene Section 12223-7, General Code, which provides that an appeal from the Court of Common Pleas to the Court of Appeals shall be perfected within 20 days after the filing of the journal entry of the judgment.”

The differentiating features between the Tims case and the present case may be noted:

1. In the Tims case, the sole cause of the inability to have the bill of exceptions filed within 40 days after the original order was because .of the illness of the court reporter, the litigant himself and his counsel being without fault, while, in the presént case, the extension of time for perfecting an appeal was sought by counsel to correct and aid his own inadvertence.

2. The illness of the court reporter in the Tims case was called to the attention of the trial court before a notice of appeal was filed, and before the expiration of the 40-day period within which the bill of exceptions was required to be filed.

3. In the Tims case the vacation of the order complained of, that of overruling the motion for new trial, was for good cause shown, i. e., the illness of the court reporter, while in the instant case no good cause was shown and the sole reason for vacating the order was to re-enter the order as of a later date and thereby to extend the time for perfecting an appeal.

That the decision in the Tims case turned upon the features mentioned and that it is clearly to be differentiated from the present case, is. seen in the following language from the opinion by Judge Zimmerman:

“Because of the temporary disability of the reporter who had recorded the evidence at the trial, it was impossible to have prepared and filed, within the period prescribed by statute, a bill of exceptions containing the evidence. Recognizing the dilemma in which the defendant found itself, the Court of Common Pleas, during the same term in which the judgment against the defendant had been rendered, vacated such judgment and later entered a new one to afford the defendant the review which, if possible, should be preserved to it. * * *

ii* # *

“In our view of the matter, then, the Court of Common Pleas, in the exercise óf a sound discretion, in the furtherance of justice and before the filing of an appeal, possessed the ppwer to vacate its judgment during term in order to permit the official reporter, temporarily incapacitated, to prepare a complete bill of exceptions, which was necessary to enable defendant to have the Court of Appeals pass on assigned errors; and such vacation of the judgment and the entry of a new one did not operate to extend the time for appeal in contravention of Section 12223-7, General Code, which provides that an appeal from the Court of Common Pleas to the Court of Appeals shall be perfected within 20 days after the filing of the journal entry of the judgment.

“We submit that a difference exists between arbitrarily re-entering a judgment for the sole purpose of extending the time for appeal and vacating a judgment for good cause, such as the one disclosed in the instant case, and entering judgment at a later time during the same term to save to a litigant, who is without fault, the privilege of appeal — a valuable and substantial remedy.” (Italics of last quoted paragraph added.)

We recognize that the statutory limitations requiring a notice of appeal to be filed within 20 days and a bill of exceptions within 40 days after final judgment have frequently caused hardship to litigants and counsel. Throughout the entire field of law, both with respect to presentation of claims and commencement of actions and perfection of appeals, we find time limitations which have often tolled actions and caused severe hardships to litigants, and these same statutes are likely to continue to be vexatious in the future. Yet the hardship in application of a rule in a particular case cannot blind us to the wisdom or necessity of rules. Uncertainty, which the law aims to guard against, would inevitably prevail and there would be widespread confusion if a statutory time limit observed by the diligent were to be set aside in the interests of a few. Until Absolute Justice can be guaranteed, absolute rules in the form of time limitations governing appeals must be enforced if we are to approximate equal justice for all. To give to the trial judge the right to vacate judgments and final orders for the sole purpose of permitting one of the litigants to perfect an appeal he had neglected to take during the statutory period would open the door to grave abuse and ignorance of rights by courts and litigants and counsel, in a field which should be clear and understood by all. No one would have means of knowing when litigation would be terminated or what might be his rights with respect to prosecution of appeals.

It should be stated that at the time of hearing of the instant case this court also heard arguments in the case of Hebert v. New York Central Rd. Co., post, 512, 105 N. E. (2d), 438, in which questions similar to the questions herein were argued. We therefore refer to that case for a further discussion of the law on the subject, opinion by Judge Hurd, rendered of even date herewith.

It is our decision in case No. 4607, on the merits, that the trial court abused its discretion in granting defendant’s motion for an order vacating its previous order overruling a motion for new trial, and final judgment is entered in favor of plaintiff appellant.

With respect to plaintiff’s motion to dismiss defendant’s appeal in case No. 4587, the motion is granted for failure of defendant to file its bill of exceptions within the statutory period.

In case No. 4602, plaintiff’s motion to dismiss defendant’s appeal is granted on the ground that no notice of appeal was filed within the time provided by Section 12223-7, General Code. Plaintiff’s motion to strike the bill of exceptions in the same case is likewise granted.

Judgments accordingly.

Skeel, P. J., and Hurd, J., concur.

Skeel, P. J., and Hurd and Thompson, JJ., of the Eighth Appellate District, sitting by designation in the Sixth Appellate District.