text:
    Billings, Appellee, v. Lambert et al., Appellants.
    (No. 3864
    Decided January 22, 1946.)

      Mr. H. Z. Bostwick and Mr. W. B. Cockrell, for appellee.

      Mr. JameS F. Little, for appellants.
   Hornbeck, P. J.

This appeal is on questions of law from a judgment of the Court of Common Pleas, In favor of plaintiff and against defendants, for $500 with interest at six per cent and costs.

The petition recites that on April 30, 1930, plaintiff loaned to the defendants the sum of $500, and that as evidence of such loan the defendants executed their promissory note, a copy of which note is set out verbatim.

It is further averred that the defendants have paid no part of the principal or interest, and that there is due and owing plaintiff the sum of $500 together with interest at six per cent per annum from October 30, 1930.

Defendants moved to make the petition definite and certain, which motion was overruled. They then demurred generally and on the ground that the action was not brought within the time limited for the commencement thereof. The demurrer was overruled. Defendants then answered, setting up three defenses, the first of which is substantially a general denial; the second, that the cause of action is barred by the statute of limitations; the third, that plaintiff made no presentation demand for payment on the instrument sued on and was therefore estopped from recovery thereon.

The cause was presented upon the issues drawn, and judgment was entered as hereinbefore stated.

The first assignment of error is that the court erred in overruling defendants’ motion to make the petition definite and certain. This motion was predicated on the theory that the note set out in the petition stated that it was secured by a mortgage executed by the mak-. ers of the note on lands in Columbus, Ohio, “fully therein described. ’ ’ The motion sought to require the plaintiff to set out a full description of the property set forth in the mortgage. The motion was not well taken for the obvious reason that the suit was one at law for the recovery of a money judgment and not for any relief under the mortgage, which relief could be secured only under the equitable jurisdiction of the court.

The second assignment of error is directed to the overruling of the demurrer. The first branch of the demurrer is that the petition does not state a cause of action on the note because the petition is predicated upon a loan on the theory of money lent or assumpsit and fails to state a cause of action for recovery on the note in that no averment is made of the amount claimed to be due to the plaintiff on the note.

The petition conforms to Section 11334, General Code, in that it sets forth a copy of the note and states “that the defendants have paid no part of principal or interest and that there is now due and owing plaintiff from the defendants the sum of $500, ’ ’ etc. There is no doubt that the action is predicated upon the note, the loan averment merely indicating the consideration for which the note was executed and delivered.

The second branch of the demurrer is that because the action is in assumpsit it is barred by the statute of limitations. What we have said respecting the action being on a note disposes of this claim.

The third assignment of error is two-fold: First, it is claimed that there is no basis for an award of interest at six per cent from the date the note is due because the note is silent as to any rate of interest. The judgment in that respect is in accord with Section 8305, General Code. The second branch of the third assignment is that the plaintiff should not have recovered because there was no proof of presentation of the note for payment, before the filing of the action.

Section 8175, General Code, provides:

“Presentment for payment is not necessary in order to charge the person primarily liable on the instrument * V’

The judgment is affirmed.

Judgment affirmed.

Wiseman and Miller, JJ., concur.


source: Caselaw Access Project

author: Geiger, J.

license: Public Domain

text:
    Cox et al., Appellants, v. Boulger, Admr., et al., Appellees.
    (No. 3755
    Decided June 30, 1945.)

      Mr. Worthington E. Babcoch, for appellants Louise Deshler Cox and Helen Desbler Brown, executrices.

      Mr. James I. Boulger, administrator, in. propria persona.

      Mr. W. Glover Porter and Mr. Latvrence D. Stanley, for appellees Marie Gwynne Crotti, Andre Crotti, Louise Gwynne Burr and Marie Brown Caren.

      Mr. R. E. Weaver, for appellees Karl E. Burr and J ohn M. Oaren, trustees.

      Mr. James F. Henderson, for appellee, Baldwin J. Gwynne.
   Geiger, J.

This is an appeal on questions of law and on questions of law and fact from a judgment and decree of the Court of Common Pleas of Franklin county, entered June 15,1944, in favor of deféndant (an appellee herein) James I Boulger, as administrator of the estate of Emma Jones, deceased, and against the plaintiffs, appellants herein.

The persons involved in this case are many, and the history of the transactions is rather long and complicated, but as briefly stated as possible, the facts alleged in the petition are as follows.

The plaintiffs, Louise Deshler Cox and Helen Deshler Brown, are the duly appointed, qualified and acting executrices of the estate of Mary Elizabeth Deshler who died May 6, 1936. The above-named executrices were appointed May 11, 1936, and they bring this action as such executrices.

' The defendant James I. Boulger is the duly appointed, qualified and acting administrator of the estate of Emma Jones, deceased, and was appointed February 5,1940, Emma Jones having died on October 9,1939, intestate. She is alleged to have been seized in fee simple of certain real estate described in the petition as inlot No. 552, located at the northeast corner of State and Third streets in the city of Columbus, Ohio. Emma Jones left no personal property of any value.

The defendants Marie Gwynne Crofti, Louise Deshler Cox and Helen Deshler Brown are each seized in fee simple of an undivided one-fourth of the above-described real estate and Louise Gwynne Burr, Baldwin J. Gwynne and Marie Brown Caren are each seized in fee simple of an undivided one-twelfth of the above-described real estate, as the only heirs at law and next of kin of Emma Jones; the claims of the above-named persons being subject to expenses of last illness, funeral expenses, taxes, costs of administration and claims of plaintiffs.

It is alleged that from time to time Mary Elizabeth Deshler, deceased, the mother of the plaintiffs, Louise Deshler Cox and Helen Deshler Brown, at the request of her sister, Emma Jones, paid the taxes levied against the real estate above described, pursuant to a written agreement; and that these payments constitute a lien against such real estate.

By the terms of the instrument of agreement, Emma Jones recited that, in consideration of the sum of $1,~ 285.49 paid to her and such further sums that might thereafter be paid for the purpose of taxes on the real estate by the defendant Marie Gwynne Crotti and Mary Elizabeth Deshler, now deceased, Emma Jones agreed to grant to Mary Elizabeth Deshler and Marie Gwynne Crotti, their heirs and assigns, a lien on the real estate for the sum of $1,285.49 and all other sums which might thereafter be paid by them for the purposes of taxes on such real estate. The agreement was dated February 19, 1915.

The amounts of money alleged to have been advanced and the dates of the advancements in accordance with the terms of the agreement are given in detail and such amounts total $51,921.77, covering a period from May 19,1913, to and including August 5,1932.

The amount of money so advanced to Emma Jones by Mary Elizabeth Deshler for the payment of taxes was acknowledged, in writing, by Emma Jones, on May 10, 1932, to be $50,000.78. Thereafter, on August 5, 1932, Mary Elizabeth Deshler advanced .the. further sum of $1,920.99 at the request of Emma Jones, making the total amount advanced by Mary Elizabeth Deshler to Emma Jones for payment of taxes up to August 5, 1932, $51,921.77. This amount plaintiffs allege is due the estate of Mary E. Deshler from the estate of Emma Jones, with interest at six per cent, and plaintiffs allege that such indebtedness is a lien on the real estate described.

Plaintiffs say that they presented their claims to James I. Boulger, administrator, who has taken no action thereon.

The prayer is for judgment against James I. Boulger,' administrator,, in the sum of $51,921.77, with interest at six per cent.

For answer the defendants Baldwin J. Gwynne and Charlotte XT. Gwynne admit that plaintiffs are the duly appointed executrices under the will of Mary Elizabeth Deshler, deceased; that James I. Boulger is the duly appointed, qualified and acting administrator of the estate of Emma Jones, deceased; that Emma Jones died intestate on October 9, 1939; that the defendants Marie Gwynne Crotti, Ijouise Gwynne Burr, Baldwin J. Gwynne, Marie Brown Caren, Louise Deshler Cox and Helen Deshler Brown are the only heirs at law and next of kin of Emma Jones, deceased; that Marie Gwynne Crotti, Louise Deshler Cox and Helen Deshler Brown are each seized in fee simple of an undivided one-fourth of the real estate described in the petition ; that Louise Gwynne Burr, Baldwin J. Gwynne and Marie Brown Caren are each seized in fee simple of an undivided one-twelfth of the above-described real estate; and that Andre Crotti, Charlotte U. Gwynne, Charles Edward Brown and John M. Caren each have inchoate dower interests in the real estate.

It is alleged that Karl E. Burr and John M. Caren have been made parties as trustees of Edmiston Gwynne,.and were appointed as such trustees on March 21, 1905, and December 9, 1937, respectively; that they have a legal estate in and .are entitled to the immediate possession of the two undivided one-twelfths of the real estate described, by reason of the fact that Ichabod G. Jones, the grandfather of' Edmiston Gwynne, died on March 9, 1857, seized in fee simple of the real estate described in the petition; that Lonise J ones Gwynne was the mother of Edmiston Gwynne; that Edmiston Gwynne was survived by his widow, Marie C. Gwynne, now deceased, his daughter, Louise G. Burr, his son, Baldwin J. Gwynne, and his daughter, Marie Andrews, now deceased, whose only issue was and is Marie Brown Caren; and that by item III of his will Edmiston Gwynne devised all his real estate to the trustees named in the will, their heirs and successors (of which trustees these answering defendants are the successors appointed as aforesaid), in trust for their benefit, the income thereof to be paid to his wife and their children and the issue of any deceased child, until the death of Louise Gwynne Burr, surviving daughter of Edmiston Gwynne.

Karl E. Burr and John Caren as trustees under the will of Edmiston Gwynne filed an answer setting up in detail a description of the property involved. They state that they are the testamentary trustees of Edmiston Gwynne, deceased; that Ichabod G. Jones was the grandfather of Edmiston Gwynne; that Louise Jones Gwynne was his mother; and that Edmiston Gwynne died in 1887 leaving surviving him his widow, Marie Gwynne, now deceased, a daughter, Louise Gwynne Burr, and a son, Baldwin J. Gwynne.

It is alleged that the daughter, Marie Andrews Gwynne, now deceased, had as sole issue the defendant Marie Brown Caren.

It is alleged that, by the third item of the last will and testament of Edmiston Gwynne, he divided his real estate in the manner therein detailed; that by reason of such devise two one-twelfth interests in the real estate described in the petition and other pleadings are vested-in the defendants as trustees and not in defendants Louise Gwynne Burr and Marie Brown Caren who are entitled to only the income thereof as beneficiaries of the trust; and that the provisions of the will of Edmiston Gwynne do not apply to the one-twelfth interests of Baldwin Gwynne. These answering defendants pray that as trustees they be declared to be the owners in trust in fee simple of two one-twelfth interests of the real estate (first parcel), and that their title thereto be quieted accordingly. These trustees filed a cross-petition as to the third parcel, alleging that, in addition to owning in fee simple at the time of his death, Ichabod Jones died seized in fee simple of the entire inlot, all of which was devised by his will and which the trustees describe as three successively adjoining parcels. They set out a description of the- first parcel, the second parcel and the third parcel, all included within the bounds of the real estate originally owned by and devised by Ichabod Jones. The trustees assert that they are concerned with only the third parcel and are entitled to the immediate possession of the two undivided one-twelfth interests thereof by reason of the facts asserted under paragraphs 11, 12, 13 and 14 of their answer and cross-petition. They assert in paragraph 15 certain facts on account of which Marie Gwynne Crotti claims to be the owner of one-fourth of the third parcel in fee simple. Each of the defendants Louise Gwynne Burr, Baldwin J. Gwynne and Marie Brown Caren claims to be the owner of an undivided one-twelfth in fee simple.

Certain allegations are made in succeeding paragraphs of the cross-petition, touching the alleged ownership of the various parties mentioned in. the several pleadings of certain portions of the real estate originally devised. °

The defendants aver that the titles to the one-twelfth interest in the third parcel claimed by the defendant Louise Gwynne Burr and to the one-twelfth thereof claimed by the defendant Marie Brown Caren are not in them or either of them but in the answering defendants. The trustees pray that by reason of the terms of the wills they be declared to be owners in fee simple and entitled to the immediate possession of the two one-twelfth interests in the third parcel of the real estate in trust, and that their title thereto be quieted.

The defendants Marie Gwynne Crotti, Andre Crotti, Louise Gwynne Burr and Marie Brown Caren, answering, assert that Emma Jones died in 1939 intestate, but deny she was then or at any time thereafter seized in fee simple of the real estate described in the petition or of any other estate which she left or could have left; and assert that she left no personal property, and that the answering defendants are the only heirs at law and next of kin of Emma Jones, deceased, owning the real estate in the proportions set out, but deny their interest in or title to the real estate is subject to the claims of the plaintiffs as set forth in the petition or to any other claims. It is asserted that Emma Jones during her lifetime signed a paper writing attached to the petition, but her authority or competency to execute the instrument, to pledge the real estate or encumber the same with any liens or to bind the same for the payment of any debts is denied. These answering defendants allege that, apart from the other issues raised by the admissions and denials of the pleadings, any action to collect the payment of any debts set forth in the petition is barred by the statute of limitations.

The defendants set out in detail the family relations of the several parties and their relationship to Ichabod Jones.

The cross-petitioners exhibit the will of Ichabod Jones and describe in detail the property of which Ichabod Jones died seized, as an estate in fee simple, and describe the nse of the property by the various parties subsequent to the death of Ichabod Jones and prior to the death of Emma Jones.

The cross-petition sets out in detail items IX, X, XI, and XII of the will of Ichabod Jones. These are too long to be quoted here.

It is asserted that, under the authority of item X of the will, the trustees, in pursuance of their power granted in such item, did on the 29th of July 1872 execute an instrument wherein it was recited that since the death of Ichabod Jones, certain of his children had married as therein stated, and that the trustees were of the opinion that it was consistent with the general welfare of the family to give to each one of the children, except Emma who was then unmarried, the share of the property to which each might be entitled and to retain the share of Emma, as trustees. The trustees set off to Cynthia K. Jones, the widow of Ichabod, as her dower the estate described in the petition, being the garden or yard and house, reciting that “we left the real estate set off to the widow undivided.”

It is asserted that by item V of her will, Cynthia, who died in 1898, undertook to devise the first parcel to Emma, although without words importing a fee, and that, thereafter, Emma was permitted to occupy the property until her death on October 9, 1939.

The defendants further, in paragraph 24 of their answer and cross-petition, assert that, by reason of the terms of items XI and XII of Ichabod Jones’ will and item V of the will of the widow, no one of his children received a fee simple title as to the property described in the petition; that by the will of Ichabod Jones it appeared that it was his intention that his wife’s share should go to his children by virtue of his will, not hers, that such property so bequeathed to each child was to constitute part of the share of such child in his estate, and that on the death of the child the property would go to the lawful issue of such child or children in fee simple, and if such issue failed, then to the survivor of his children with the result that in respect to the premises described in the petition the' children of lehabod Jones were joint tenants and the occupancy thereof by Emma was for the benefit of such children and in no sense adverse to them; that Emma, having no issue, her proportionate title consisted of either a life estate or an estate tail, neither of which gave Emma the right to encumber any portion of the property beyond the period of her lifetime; and that the parties therein named are the only issue of the children of lehabod Jones and are the owners in fee simple of the property in the proportions therein set out.

James I. Boulger, the duly appointed and acting administrator of the estate of Emma Jones, filed a cross-petition for declaratory judgment, reciting the facts already appearing from other pleadings, and asserting that a controversy had arisen between the plaintiffs and the defendants in which such administrator is interested, the nature of which is set forth in detail in such cross-petition which covers many pages. The administrator also detáils certain questions arising under the wills of lehabod and Cynthia Jones, and the cross-petition assorts that it is necessary that such administrator have a determination of the questions involved in the title by virtue of the two wills, for the purpose of determining whether he has the right to bring an action to sell the real estate for the payment of the debts of Emma Jones, as if she owned the fee simple title to the property in question or'any interest therein at the time of her death subject to the payment of her debts. The administrator also asserts that the question arising under item V of the will of Cynthia Jones involves a construction of both wills, and whether, if she had the power of appointment, she exercised it. It is asserted that the determination of the questions arising require the determination of whether it was the testator’s intent that whatever interest Cynthia Jones took as to the property was to be enjoyed by her only for life or a longer .tenure. The administrator sets out the action of Cynthia Jones in devising the house and lot to Emma Jones on the theory that they were her property. It is stated that Emma Jones asserted adverse possession from the death of her mother in 1898 until her death in 1939 and claimed complete ownership.

It is asserted by the administrator that it is necessary that he have a determination of the questions arising out of the execution and delivery of the writing signed by Emma Jones, dated February 19, 1915, acknowledging a debt to Mary Elizabeth Deshler in a sum in excess of. $50,000 furnished by her to Emma Jones for the purposes of paying taxes upon the property in question. The administrator says that it is necessary for him to be instructed as to whether such instrument constitutes a lien upon the real estate described in the petition, whether the title to such real estate was vested in fee simple in Emma Jones, and whether the administrator has the right to sell the real estate to satisfy the lien. The further question is whether, if the instrument does not create such a lien, the claim of the plaintiffs based upon the payment of taxes in the amount specified is a valid claim against the estate to be allowed by the administrator, and further, if Emma Jones died seized of the real estate subject to sale to pay the claim, does any general statute of limitations bar the enforcement of payment of part of the claim? It is asserted that plaintiffs and defendants are not in agreement on these questions and that such administrator cannot in safety perform his duties as such fiduciary without a determination and declaration of his rights and obligations, nor without a construction of the wills of Ichabod Jones and Cynthia Jones. He prays for judgment declaring his rights and obligations, and that the court determine the several rights of the various parties.

The plaintiffs for reply to the answer of the defendants deny that Emma Jones was without authority or was incompetent to execute the agreement in question. They further deny that Emma Jones was without authority to pledge the real estate described in the petition or to encumber the same with any lien or to bind the real estate for the payment of any debt. They allege that Emma Jones’ possession of the real estate, after her mother’s death to the date of her own, was solely and exclusively on her own behalf under a fee simple title and was adverse to such defendants and continuous from July 18, 1898, to October 9, 1939, a period of more than 41 years, all of which was known to the defendants; and that by reason thereof any claim of the defendants to the real estate is now barred by the statute of limitations. Plaintiffs admit that the defendants Louise Deshler Cox, Helen Deshler Brown and Marie Gfwynne Crotti are each seized of an undivided one-fourth of the real estate described in the petition, and that the defendants Louise Burr, Baldwin J. Gfwynne and Marie Brown Caren are each seized of an undivided one-twelfth.

It will be readily seen .that — due to the long course of years during which this valuable real estate in the city of Columbus was occupied by various heirs or devisees of Ichabod Jones under his will and the several other wills incident to the title, the question of the title of Emma Jones and the final devolution of the property upon her death, the question of her right to give a valid lien upon the property occupied by her to her sister, Mary Elizabeth Deshler, to secure to her the money advanced by Mary Elizabeth Deshler for the payment of the taxes daring the course of years, the question as to the various statutes of limitation asserted by the parties as controlling the right to recover this sum of money, and the right of Emma Jones to acquire a title to the real estate by adverse possession — the determination of the legal questions raised by the petition and the answer and cross-petition of the administrator is exceedingly complicated and difficult of an analysis within a space that can justly be given to the decision of this matter. It will be impossible for us within the proper limits of this decision to make a critical examination of the reasoning of the court below.

The court below, in treating the matter, apparently combined finding of facts and conclusions of law in the same entry. In the entry dated June 15,1944, covering 10 pages, we find the court’s views. The entry includes the court’s ruling on certain matters that are of no immediate consequence, as they relate to procedural matters.

During the course of the procedure several interrogatories were submitted to the court, to which answers were given by the court, but we will refrain from further noting these, due to lack of space. The court made certain findings of fact which form the background of its conclusions of law. There is no conflict on the facts asserted by the several pleadings.

The whole matter in controversy arises from the provisions of the will of Ichabod Jones, which, according to counsel for defendants, is an inartistic home-made will raising many intricate questions.

Ichabod Jones died testate on the 9th of March 1857 survived by his widow, Cynthia, and by four children, one son and three daughters. All of the children except Emma married and have since deceased, leaving heirs.' Emma, the decedent, against whose estate the claims of the plaintiffs are asserted, was never married. There was vested in Emma as one of the daughters of Ichabod Jones an undivided one-fourth interest in the real estate, subject to the life estate set off by the trustees to the widow of Ichabod Jones, as her dower. The property in question consisted of 112.5 feet off the west end of inlot No. 552 of the city of Columbus.

Cynthia, the widow of Ichabod, had neither the right nor the power to dispose by her last will the remainder or any other interests she had in the real estate, and the provisions of her will' attempting to devise the same to Emma were void, and by virtue thereof Emma acquired no interest in the real estate, her only interest being the undivided one-fourth part received by her as part of her father’s estate, under Ms will.

After the death of Cynthia, who was vested with the life estate, Emma occupied the premises as the owner in fee simple of the undivided one-fourth interest therein and as a tenant in common with Mary Elizabeth Deshler and other owners, whose interests are not now before the court. Emma Jones by her occupancy of the property over a long period of time acquired no right by adverse possession to the three-fourths interest. Due to the failure of Mary Elizabeth Deshler to file certain certificates pursuant to Section 5682 et seqGeneral Code, the plaintiffs have acquired no statutory lien against the real estate or any part thereof. However, any attempt to assert such statutory lien would have been barred by the statute of limitations, as having occurred more than six years prior to the filing of the present suit. Under Section 11222, General Code, there is a limitation of six years against the enforcement of the lien.

As distinguished from the statutory lien, an equitable lien has been created by the contract in writing between Emma Jones and Mary Elizabeth Deshler, being exhibit “A” attached to the petition, but only to the extent that such contract was based upon a valuable and equitable consideration. Such lien can be only to the extent of one-fourth of the amount advanced by Mary Elizabeth Deshler for the payment of taxes, that being the extent of the interest of Emma Jones in the real estate for which the taxes were paid, and the one-fourth of the amount of the claim has not been barred by the statute of limitations because of the written acknowledgment of May 10, 1932. The acknowledgment by Emma Jones of the amount due her sister in the sum of more than $50,000 was made because of the mutual mistake of Mary Elizabeth Deshler and Emma Jones in assuming that, at the time of the execution of the instrument and thereafter until the death of Emma, she was obligated to pay all the taxes and assessments levied on the real estate, both Mary Elizabeth Deshler and Emma being unaware that Emma owned only a one-fourth interest in the real estate and that Mary Elizabeth Deshler had a life 'or greater interest as tenant in common with others who were not parties to the instrument. This mutual mistake with respect to the rights of Emma Jones was one that arose out of private rights of ownership through a misapprehension of the respective interest’s in the real estate, and the instrument should be reformed so as to reduce the claim of the plaintiffs against the estate of Emma to one-fourth of the total taxes listed in the instrument attached to the petition, in accordance with the prayer for amendment of the administrator in his cross-petition.

The one-fourth of the $51,921.80, the total show by the claimed lien, to wit, the sum of $12,980.45 with certain interest payments, is the amount which the plaintiffs as executrices are entitled to recover from the administrator and no more.

In the conclusion of the entry, the court directed that James I. Boulger, as administrator of the estate of Emma Jones, shall allow and pay out of her estate to the plaintiffs as executrices, the sum of $12,980 with proper interest, which shall be in full payment and discharge of the claimed lien asserted in the petition, and in payment of all indebtedness of Emma Jones and of her estate to the plaintiffs. The balance of the charge in the amount appearing in exhibit “A” is without consideration and unenforceable, and the administrator of such estate as to this is relieved of any liability. Exhibit “A” should be corrected and reformed so as to reduce each item of charge therein by 75 per cent and so as to show that the consideration passing to Emma Jones instead of being the amount shown, is as a matter of fact, one-fourth thereof. The claim for taxes should be reformed by striking out certain words and substituting the words, “one-fourth in the premises,” and so as to further show that the lien in favor of Mary Elizabeth Deshler on the one-fourth interest in the property is in an amount of $12,980 instead of the amount of over $50,-000 admitted by Emma Jones.

The decree should have the force and effect of a reformation to that extent.

To these findings, insofar as they limit the title of Emma Jones to one-fourth of the real estate, and her liability to plaintiffs as executrices to one-fourth of the. sum of $51,921.77, the plaintiffs except. To all the findings, so far as they accord to the estate of Emma Jones any portion of the real estate in fee simple and are declared in the exhibit attached to the petition as creating a lien payable by the administrator in any amount whatsoever, the defendants, Marie Gwynne Crotti and others, except.

James I. Boulger, administrator, excepts to the finding in favor of the plaintiffs for $12,980.45.

This court has carefully gone over and considered in detail the learned opinion of the trial court and is of opinion that the court below has arrived at a proper conclusion in this matter.

The judgment and decree of this court is the same as that rendered by the Common Pleas Court.

Judgment and decree accordingly.

Hornbeck, P. J., and Sherick, J., concur.

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


author: Ross, J.

text:
    Schulte, Appellant, v. Langenbrunner, Appellee.
    (No. 6697
    Decided October 26, 1946.)

      Messrs. Freiberg & Simmonds, for appellant.

      Messrs. Schott, Tieman & Neyer, for appellee.
   Ross, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas, reversing a judgment of. the Municipal Court of Cincinnati for the plaintiff.

The action was instituted by the plaintiff to recover from the defendant the cost of repairs to plaintiff’s automobile which the defendant agreed to pay. The damage to plaintiff’s automobile was caused by the son of the defendant, to whom the father loaned his automobile in order that the son might take “his girl” to the court house “to arrange for a marriage license.” It appears that the defendant went to a garage, where the plaintiff, the defendant, his son and a police officer were discussing the collision and damage to plaintiff’s automobile. There were no threats of arrest, or suit. The defendant, however, told the plaintiff to have the automobile repaired and he, the defendant, would pay the cost of such repairs. The plaintiff stated he had called a repairman to come and get the automobile. The defendant said he would prefer another repairman, but since plaintiff had employed one, would make no objection to the one selected by plaintiff, and that he, the -defendant, would pay the costs of such repairs.

The defendant, later in the day being advised by plaintiff that the repairman selected by plaintiff had not yet presented an estimate of such repairs, stated to plaintiff that “he was not interested in it any more.”

The repairs were made by the repairman selected by plaintiff and the costs of such repairs were paid by plaintiff, for which amount plaintiff recovered judgment against defendant in the Municipal Court of Cincinnati.

The defendant now claims that the judgment of reversal by the Common Pleas Court is correct upon the basis (1) that the agreement of the defendant to pay was not in writing; (2) that there was no consideration for the defendant’s promise.

The defendant admits he gave his son permission to use his automobile, and stated further: •

“Q. Whom did you have the conversation with? A. With the officers. They came to me and said ‘Now, we don’t want to arrest your boy.’ I won’t say sure whether they told me he didn’t have a driver’s license on him or he did. It was figured we don’t want to arrest the boy but this man wants the damages paid for. I asked who was at fault. It was the boy’s says he. The officers says ‘it is his fault, he run into him.’ He had a signal device on his machine that he operated by hand on the windshield. I am not acquainted with that. I made the simple statement if it is our fault we will pay for it.”

The son was 23 years old. He had no driver’s license upon his person.

The credibility of the witnesses was for the trial court. There is evidence that the defendant made a direct promise to the plaintiff to% pay for the cost of repairs. This is not a guaranty and such promise is not covered by the statute of frauds. 19 Ohio Jurisprudence, 559.

On the question of consideration, there is evidence that the collision was caused by the fault of the defendant’s son; that the son was subject to arrest for failure to possess a driver’s license while operating the automobile; and that, although no actual threats of arrest were made, a police officer was present and remained with the parties until an amicable agreement was reached by them. There are circumstances under which an owner of a motor vehicle has been held liable for injuries caused by its use when entrusted to a person known to be incompetent to properly operate the same. Williamson v. Eclipse Motor Lines, Inc., 145 Ohio St., 467, 62 N. E. (2d), 339.

There is no evidence sustaining the conclusion that such circumstances were involved in the instant case. The real question here presented is whether there is any substantial evidence showing that the plaintiff suffered any detriment or the defendant received any advantage or is guilty of conduct which would estop him from denying liability. Certainly, there is no evidence that the plaintiff relinquished any legal rights he may have possessed. He did not bind himself not to sue or prosecute. Any rights he possessed when the conference in -the garage occurred'were still possessed by plaintiff when the defendant, on the same day, refused to be bound by his direct promise to plaintiff to pay the costs of repairs.

Hid the defendant do or say anything which caused the plaintiff to change his position, resulting in injury or damage to plaintiff? It is to be borne in mind that according to the plaintiff’s own testimony before he incurred any expense he was advised by the defendant that “he was no't interested in it any more.” Again, according to plaintiff’s own testimony, he told defendant he would secure an estimate of the costs of repair and submit it to defendant, and if this was not satisfactory the defendant could have his own “man” look at the automobile and make his own estimate.

It is apparent, therefore, that the plaintiff incurred no’ expense before he was notified defendant had rescinded his offer to pay the costs. Plaintiff, before any statement was made by defendant, had ordered his repair man Sieve & Lange to come for the automobile. There is apparent in the evidence, therefore, no facts justifying a conclusion that plaintiff changed his position by reason of anything the defendant said or did. Plaintiff relied upon the bare promise of the defendant to pay the costs of repairs. This promise' was entirely unsupported by any consideration, consisting either of benefit to the defendant or detriment to plaintiff. The promise of defendant having been rescinded by defendant before the plaintiff had incurred any expense in reliance upon the promise, no element of estoppel appears in the evidence.

For these reasons, the judgment of the Court of Common Pleas, reversing the judgment of the Municipal Court of Cincinnati, and rendering judgment for the defendant, is affirmed.

Judgment affirmed.

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


author: Hurd, J.

text:
    The State, ex rel. Dana, Appellant, v. Gerber, Coroner, Appellee.

      (No. 20333
    Decided October 14, 1946.)

      Messrs. Krewson S Williams, for appellant.

      Mr. Frank T. Cullitan, prosecuting attorney, and Mr. Saul S. Fanrweau, for appellee.
   Hurd, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas. A petition in mandamus was filed on behalf of Susan Dana, widow of one Oscar Dana, directed against the coroner of Cuyahoga county. The prayer of the petition was for an order of the court to direct the coroner to change his verdict from “suicide” to “accidental death” under and by virtue of the provisions of Section 2855-16, General Code, effective October 12, 1945.

The coroner filed an answer to the petition, containing certain admissions and denials and an allegation that the facts stated in the petition did not state a cause of action, to which the relator filed a reply traversing certain of the allegations of new matter contained in the coroner’s answer.

The case was assigned for trial but before the introduction of testimony an oral motion was made by resjjondent to dismiss the petition, which motion was granted by the court.

There are two assignments of error: (1) The court erred in dismissing the petition on the ground that it did not contain facts sufficient to constitute a cause of action; (2) the court erred in holding that mandamus was not a proper remedy.

The motion granted by the court being in the nature of an oral demurrer, the facts well pleaded in the petition must be admitted to be true for the purpose of the ruling, and it is therefore necessary to set forth the pertinent allegations of the petition, which are briefly summarized as follows:

The deceased husband of appellant was admitted to University Hospital, Hanna House, Cleveland, Ohio, on or about November 8, 1945, where he underwent Surgical treatment. Thereafter he was placed in a room on the fourth floor of the hospital. During the period between the 8th and 11th of November, 1945, and until shortly before his death, he was given several dosages of phenobarbital as part of the essential medical treatment prescribed for him. It was alleged that the gradual cumulative effect of the administration of phenobarbital, coupled with post-operative shock, was such as to cause his physical and mental processes to become impaired so that on or about the hour of 1:40 p.m. on November 11, 1945, the decedent was not responsible for his conduct; that at about the same time on the same day, the body of decedent was discovered on the ground outside the hospital building; that the exact manner and means by which the body of decedent came to that place are unknown; that the coroner on the same day made a finding that the immediate-cause of death was multiple fractured ribs, internal injuries, suicide, jump from window,” but that the relator believes and avers that when the coroner made this decision he was not in possession of all tfie facts and information relating to the death of decedent, especially such as relate to the influence of the administration of phenobarbital as a sedative and that the coroner would and should have rendered a different decision as to the cause of death and the manner and mode in which the death occurred, had he been in possession of all the facts relating thereto; that the coroner incorporated in his verdict and in the death certificate, filed with the registrar of vital statistics of Cleveland, his decision hereinbefore set forth and that the decision is in part erroneous in that it recites the deceased committed “suicide” and that he “jumped” from a window; that the acts and conduct of decedent were wholly involuntary, due primarily to post-operative shock and the administration of phenobarbital, by reason whereof his physical and mental processes were impaired to the extent that he was incapable of forming an intention to take his life; and that the verdict of the coroner should have been that decedent came to his death by “accidental” means.

The first assignment of error, namely, that the court dismissed the petition on the ground that the facts stated were not sufficient to constitute a cause of action, calls into question the validity of Section 2855-16, General Code, which is a new section providing for and defining in part the jurisdiction of the coroner. Prior to the adoption of this new section of the General Code, the duties of the coroner were defined by Section 2856 cl seq., General Code, which in effect limited the jurisdiction of the coroner to inquests and proceedings in which, in the language of the statute, “death is supposed to have been caused by unlawful or suspicious means.” When such eases came to the attention of the coroner it was his duty, again in the language of the statute, to ‘ ‘ appear forthwith at the place where -(¿he body is, issue subpoenas for such witnesses as he deems necessary * * * and proceed to inquire how the deceased came to his death, whether by violence from any other person or persons, by whom, whether as principals or accessories before or after the fact, and all circumstances relating thereto.” Under that section it was considered that the jurisdiction of the coroner was confined to cases where there was a “suspicion of death” by criminal means. Section 2856, General Code, and certain succeeding sections were repealed at the last regular session of the Legislature, new Sections 2855-3 to 2855-18, General Code, were,enacted, and only the provisions of original Section 2856-3, General Code, relating to the qualifications of the coroner were retained.

An examination of the new sections of the Code defining the rights, duties and obligations of the coroner discloses that the jurisdiction and authority of the coroner, heretofore confined to cases involving crimes, is, for the first time in the history of Ohio, enlarged to cover cases involving civil liability. For instance, Section 2855-5, General Code, provides for cases where “any person shall die as a result of criminal or other violent means, or by casualty, or by suicide” and Section 2855-7, General Code, contains the words “whether by violence to self or from any other person or persons.” (Emphasis ours.)

Section 2855-16, General Code, provides:

‘ ‘ The cause of death, the manner and mode in which the death occurred, as delivered by the coroner and incorporated in the coroner’s verdict and incorporated in the death certificate filed with the registrar of vital statistics, shall be the legally accepted manner and mode in which the death occurred and the legally accepted cause of death, unless the Court of Common Pleas of the county in which the death occurred, after hearing, directs the coroner to change his decision as to the cause, mode and manner of death.”

From the plain language of that section we conclude that the Legislature intended to enlarge the jurisdiction of the coroner to cases of death where civil rights and liabilities may be involved.

It is not the purpose of this court to question the wisdom of the Legislature in so enlarging the jurisdiction of the coroner. It has been well said that:

“There are frequent expressions to the effect that courts may not determine the wisdom of the law under consideration. The wisdom or want of wisdom of a statute is a question not for the courts, but solely for the Legislature, which body is presumed to have acted wisely in the enactment of the statute. It is the duty of the courts to interpret the law as they find it, without reference .to whether the provisions are wise or unwise, politic of impolitic.” 37 Ohio Jurisprudence, Section 355, Subject: Statutes, at pages 650-651, and numerous cases cited thereunder in support of the tex-t as early as Wayne Township v. Green Township, Wright, 292 (June, 1833), and as late as State, ex rel. Downing, v. Dowers, 125 Ohio St., 108, 180 N. E., 647 (March 30, 1932).

It is urged by the prosecuting attorney representing the county coroner that the language providing for a hearing by the Court of Common Pleas, found in Section 2855-16, General Code, is so incomplete, so vague, indefinite and uncertain that it is impossible to determine by any valid rule of construction with any reasonable degree of certainty what the Legislature intended. It is argued further that inasmuch as there is no other provision of law, statutory or otherwise, to supplement or render complete such provision, the deficiency is such as to render it impossible of execution and for that r'eason the particular section must be held inoperative and void.

The prosecuting attorney, in support of his argument cites 25 Ruling Case Law, Section 62, under the subject “Statutes,” as follows:

“Where an act of the Legislature is so vague, indefinite and uncertain that the courts are unable to determine, with any reasonable degree of certainty, what the Legislature intended, or is so incomplete or is so conflicting and inconsistent in its provisions that it cannot be executed, it will be declared to be inoperative and void. * * *.”

See, also, 37 Ohio Jurisprudence, 829, Section 509, as follows:

“Legislative enactments may be declared by the courts to be inoperative and void for uncertainty in the meaning thereof. This power may be exercised if the statute is so incomplete or so vague and indefinite that the court is unable to determine, with any reasonable degree of certainty, what the Legislature intended,” and numerous cases cited thereunder.

However, it is also the law of this state “that questions relating to the invalidity of a law, based on its indefiniteness and uncertainty, should be approached with cautious circumspection. The basis of the principle that courts will not, in doubtful cases, pronounce a legislative act to be contrary to the Constitution applies with equal force where the courts are called upon to declare a statute to be so meaningless and unintelligible as to be inoperative.” 37 Ohio Jurisprudence, 82.9, 830, “Statutes,” Section 510 and cases thereunder cited.

It is clear that the Legislature by enacting Section 2855-16, General Code, intended to clothe the Court of Common Pleas with jurisdiction to hear evidence and after such hearing direct the coroner to change his decision as to the cause, mode and manner of death, if in the judgment of the court the coroner’s verdict is not justified by the evidence. But the serious question remains as to how or in what manner the intent of the Legislature is to be effectuated under the statute as written. It will be noted from an analysis of that particular section and the other new sections of the General Code (see Sections 2855-3 and 2855-18, General Code) that there is no method prescribed as to the manner in which the decision of the coroner shall be brought before the Common Pleas Court. There are no provisions describing the person or persons, or class of persons, who shall be made parties or who may become parties to such action and the section is wholly silent as to how parties whose rights or liabilities may be affected shall be brought before the court for adjudication. Nor does there appear to be any other provision of law conferring jurisdiction upon the Court of Common Pleas to decide such questions either in original or review proceedings and no other statutory provision setting forth the nature of such proceeding.

There is another important question in this case and that is whether there is a grant of judicial power to the coroner, a ministerial officer, to make a finding in an ex parte proceeding affecting constitutional rights in civil matters, for while we are not concerned with the wisdom or policy of the Legislature, we must be concerned with the constitutional rights, of any persons who may be prejudiced by an ex parte finding of a ministerial officer in a proceeding in which they are not made parties and in which they are not afforded means of becoming parties for the purpose of asserting their rights.

So far as we are aware, the question of the validity of Section 2855-16, General Code, has never before been raised.

Counsel have cited two cases which, while not directly in point, are claimed to be analogous. The first is Meunier’s case, decided by the Supreme Judicial Court of Massachusetts, on April 9, 1946, 66 N. E. (2d), 198, and the second is Spiegel’s House Furnishing Co. v. Industrial Commission, 288 Ill., 422, 123 N. E., 606, 6 A. L. R., 540, decided by the Supreme Court of Illinois on June 18, 1919.

Meunier’s case was heard on appeal from the Superior Court wherein proceedings were had under the Workmen’s Compensation Act on a claim for disability arising from injury to the lungs in the course of employment. The insurer appealed from a decree awarding compensation. The court had under consideration a statute governing the admissibility and probative effect to be given to the reports of medical referees in workmen’s compensation cases. The statute, so far as material, provided for the appointment of a board of medical referees consisting of three impartial physicians. The referees, by the terms of the statute, were directed to examine the employee, if living, and examine the body of the employee, if dead, and after study and consideration report to the department of workmen’s compensation. It was further provided that the report of the referees shall be “binding” on the parties and be included in the decision of the single member and of the reviewing board. The controversy hinged on the meaning to be given the word “binding,” the court using the following language: “The word ‘bind’ or ‘binding’ appearing in our statutes has been construed to mean conclusive.” (See 66 N. E. [2d], 200, supra,.)

The Massachusetts court concluded that the Legislature, by the statute, attempted to make the report of the referees a final determination of fact. The court called attention to the proposition that no provision was made for the representation of either party at any investigation conducted by the board and that the party who was adversely affected by the report could not explain, contradict or refute it and that he was therefore denied a fair opportunity to introduce all available material evidence in support of or against the claim and to have it considered and weighed by the trier of facts. The court decided that the statute giving that effect to the report of an ex parte investigation deprived a party of his fundamental rights and was violative of Articles I, X and XII of the Declaration of Rights of the Constitution of Massachusetts and was contrary to the due process clause of the Fourteenth Amendment to the Constitution of the United States, citing numerous cases in support of its conclusion.

The analogy between that and the instant case is obvious. The words used in the Ohio statute to the effect that the finding of the coroner “shall be * * * the legally accepted cause of death” if binding and conclusive, would mean an adjudication of substantive rights without the right of any party adversely affected thereby to appear, to be represented, to offer evidence in support of or against a claim, and to have it weighed by the trier of the facts.

It would also appear that the term “legally accepted” in the instant ease has a connotation at least equal to the word “binding” in the Meunier’s case. We think Section 2855-16, General Code, attempts to make the finding of the coroner a final determination of fact to be “legally accepted.”

In the case of Spiegel’s House Furnishing Co. v. Industrial Commission, supra, Mr. Justice Duncan, delivering the opinion of the court said, at page 426:

“Plaintiff in error was not a party to the proceedings before the coroner’s jury, was not present and had no right to be present or represented in that proceeding, had no choice or right of choice in the selection of the jury, did not cross-examine and had no right to cross-examine the witnesses before that jury or to contradict the evidence tending to prove the liability against it, which it is claimed the verdict of that jury now establishes. To hold that that verdict has that effect is to condemn plaintiff in error without a hearing and to violate the most elementary and sacred rules for the administration of justice between private individuals guaranteed by our laws and our constitutions, both state and national. * * *”

And at page 431:

“The allowance of coroner’s verdicts as evidence in civil suits is wrong in principle and necessarily results in much injustice to litigants. A coroner, under our law, has no judicial power. Such power is vested by the constitution in the courts thereby created. (Peoria Cordage Co. v. Industrial Board, supra [284 Ill., 90].) At common law the office of coroner was judicial in its nature. But if he were a judicial officer, invested with judicial powers and duties, we are unwilling to further indorse the holding that any litigant should be bound by the verdict of a coroner’s jury in whose inquest he had no right to participate and did not do so. The most solemn finding or judgment of a court is not admissible against a litigant, either as res judicata or as an estoppel by verdict, unless he was a party to that judgment. (Chicago Title & Trust Co. v. Storage Co., 260 Ill., 485 [103 N. E., 227].) The rule has always been recognized that no person shall be affected by any judicial investigation to which he is not a party, unless his relation to some of the parties was such as to make him responsible for the final result of the litigation. (1 Freeman on Judgments, Section 154.) ’1 (Emphasis ours.)

This decision by the Supreme Court of Illinois is cogent, particularly so because the Illinois statutes are comparable in content and scope to our Ohio statutes concerning the authority and jurisdiction of the coroner (see Smith Hurd Illinois Annotated Statutes, Chap. 31, Statutes) and because the provisions in the constitutions of Ohio and Illinois vesting judicial power in the courts are similar. To the same effect it has been held in Ohio that the finding of 'an inquest is inadmissible as evidence against the accused on his trial. State v. Turner, Wright, 20. And that the record of the testimony taken by the coroner likewise is not admissible in a civil case. Ins. Co. v. Schmidt, 40 Ohio St., 112.

In the ease of State, ex rel. Attorney General, v. Hawkins, 44 Ohio St., 98, 5 N. E., 228, Minshall, J., speaking for the court, said:

“What is judicial power can not be brought within the ring fence of a definition. It is undoubtedly power to hear and determine; but this is not peculiar to the judicial office. Many of the acts of administrative and executive officers involve the exercise of the same power. Boards for the equalization of taxes, of public works, of county commissioners, township trustees, judges of election, viewers of roads, all, in one form or another, hear and determine questions in the exercise of their functions, more or less directly affecting private, as well as public rights. It may be safely conceded, that power to hear and determine rights of property and of person between private parties, is judicial, and can only be conferred on the courts. (Emphasis ours.)

See, also, Cincinnati, Wilmington & Zanesville Rd. Co. v. Commissioners of Clinton County, 1 Ohio St., 77, and State, ex rel., v. Guilbert, Aud., 56 Ohio St., 575, 47 N. E., 551, 60 Am. St. Rep., 756, 38 L. R. A., 519.

These authorities are important in considering the question of the validity of the statute in the instant case and in considering whether the Legislature, by the provisions of the statute, has attempted to clothe the coroner, a ministerial officer, with full judicial power. It is certain that the record made by the coroner can not be reviewed as upon error proceedings because the testimony adduced before the coroner is not admissible in the absence of some statutory provision making it so. There is no such provision for review in the new section or in other sections of the General Code. It is clear also that by the new section, the Court of Common Pleas is not authorized to do more than direct the coroner to change his finding. If such a direction is given it would still be according to the wording of the statute, a finding of record by the coroner, although made by the direction of the Court of Common Pleas. It is clear also that if, after hearing, the court does not direct the coroner to change his finding, the finding of the coroner is intended to have the force of a judicial decision because it shall be the “legally accepted cause of death.”

In the case of State, ex rel., v. Guilbert, Aud., supra, it was held that the original act of 1896, entitled “Art act to provide for the registration of land titles in Ohio,” was unconstitutional and among other things the court found (paragraph three of the syllabus) as follows:

“Said act is repugnant to Section 1, of Art. 4, of the Constitution, because it attempts to confer judicial; power upon the county recorder.”

The county recorder was held to be a ministerial officer who could not exercise judicial power. It was not until the Constitution was amended providing for due process through the courts that a Torrens Act was adopted which survived the test of constitutionality.

We conclude from a consideration of the authorities and an analysis of the statute that Section 2855-16, General Code, is an attempt by the Legislature to vest the coroner with judicial power in civil matters between private parties, which is repugnant to Section 1 of Article IV of the Ohio Constitution vesting full judicial power in the court.

We conclude also that by that section the Legislature has attempted to authorize the coroner to make “legally accepted findings” having the power of judicial decisions affecting civil rights in ex parte proceedings, without making adequate provisions or defining means for persons adversely affected thereby to be made parties or become parties for the purpose of asserting and protecting their rights.

We conclude further that the Legislature by that section attempted to vest the 'Court of Common Pleas with power to direct the coroner to change his finding in a civil matter so that it will thereafter have the force of a judicial decision without providing the method or means by which such jurisdiction shall be exercised and without providing some mode or method which will guarantee the parties their constitutional rights to have their day in court and that it is, therefore, inoperative and void for uncertainty and indefiniteness.

Finally, we find that the statute deprives a party of his fundamental rights and is violative of Sections 1 and 16 of Article I of the Bill of Rights of the Ohio Constitution and of Section 1, Article IV, of the Ohio Constitution and is contrary to the due process clause of the Fourteenth Amendment to the Constitution of the United States.

In view 'of these holdings in respect to the first assignment of error it is unnecessary to consider the second assignment of error as to whether mandamus is a proper remedy.

For the reasons stated the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Skeel, P. J., and Morgan, J., concur.


author: Nichols, P. J.

text:
    The Fidelity & Casualty Co. of New York, Appellant, v. The Niles Bank Co. et al., Appellees.

      (No. 1114
    Decided January 10, 1946.)

      Messrs. Howell, Roberts & Duncan, for appellant.

      Mr. Paul Z. Ilóclge and Mr. W. F. MacQueen, for appellees The Niles Bank Company and The Niles Holding Company.

      Mr. William P. Barnum, for appellee The Mahoning Valley-Sanitary District.
   Nichols, P. J.

The Mahoning Valley Sanitary District, hereinafter referred to as the district, is an Ohio corporation organized and existing under authority of the “Sanitary District Act of Ohio” (Sections 6602-34 to 6602-106, inclusive, G-eneral Code). The district operated a sanitary water district in Trumbull and Mahoning counties.

The Niles Trust Company was an Ohio corporation doing a general banking business in Niles, Ohio, and will be referred to herein as the trust company. The name of that company was subsequently changed to The, Niles Bank Company, under which name it is now doing a general banking business at Niles. The new company will be referred to herein as the bank company.

The Niles Holding Company is an Ohio corporation organized for the purpose of receiving and liquidating certain assets of The Niles Trust Company.

The plaintiff, The Fidelity & Casualty Company of New York, is a corporation engaged in the business of writing surety bonds and authorized to transact business in Ohio. It will be referred to herein as the surety.

On the 17th. day of February 1926, the directors of the district adopted resolution No. 7, as follows:

“Be it hereby resolved that the following depositories be designated as three of the depositories, and others shall be designated at a later date, for the deposit of funds of The Mahoning Valley Sanitary District :

“The First National Bank of Youngstown, Ohio, The Commercial' National Bank of Youngstown, Ohio, The Niles Trust Company, Niles, Ohio.”

At no time did the district directors designate any of the named depositories as “temporary or assistant treasurer or treasurers.”

On December 15, 1930, on written application of the trust company, the surety executed a $50,000 bond, guaranteeing that the trust company would pay to the district its deposit, the district then having on deposit with the trust company a much larger amount of money than $50,000. Further reference will hereinafter be made to the written application of the trust company to the surety for the execution of its $50,000 bond, since we conclude that the information contained in such application, upon the form furnished by the surety, is of vital importance to the decision of this appeal.

At the close of business on the 28th day of September 1931, while such $50,000 surety bond was in full force and effect, the district had on deposit with the trust company the sum of $435,379.07 and held as security therefor certain collateral in the form of public bonds and notes secured by mortgages, all of the face value of $454,000.09, in addition to the $50,000 surety bond executed by the surety.

On that day, The Niles Trust Company was closed by order of the Superintendent of Banks of the state of Ohio. Shortly thereafter, the district made demand upon the- surety and the Superintendent of Banks for the payment of all sums then on deposit with the trust company to the credit of the district, and particularly made demand, with threats of suit, upon the surety for the payment of $50,000, secured by its bond. On January 12, 1932, the. surety paid to the district $50,000, the district then delivering to the surety its receipt therefor in writing, and in writing assigning to the surety an undivided interest, in the amount of $50,000, in the deposit of the district with the trust company and subrogating the surety, to the extent of its payment, to all rights of recovery which the district had against the trust company and any other person on account of loss in connection with the deposit.

The language of such assignment agreement by the district to the surety, designated “assignment,” makes no mention of an assignment to the surety of any portion of 'the collateral held by the district as security for its deposit, but the assignment specifically states that the purpose of this instrument is “to subrogate The Fidelity & Casualty Company of New York and to endow it with any and all rights of whatsoever nature by or accruing to the said The Mahoning Sanitary District to the extent of the above mentioned payment. ’ ’

On January 22, 1932, a “certificate of proof of claim” was issued by the Superintendent of Banks to the district in the sum of $50,000, and such certificate was assigned and transferred by the district to the surety.

Although the surety was a paid one, its bond provided that if the amount of the assured’s deposit at the time of default of the bank exceeded the amount of the bond, the surety should be entitled to share with the assured the amount of any dividend or payment received from the bank in the proportion that the amount of the bond bore to the total deposit at the time of default, and, further, that, the surety should be subrogated in the same proportion to all other rights of the assured against any person or corporation, as respects a default on the part of the bank, and the assured should execute all papers required to secure the surety such rights. The “assignment” referred to above was doubtless executed pursuant to the provisions of the bond.

The bond executed by the surety provided also that if the assured at the date thereof or at any time thereafter should hold in addition to the bond any guarantee, bond or other security, against the loss covered, the surety should not be liable for a larger proportion of any loss than the proportion that the amount of the bond bore to the total amount of security against the loss. Why the surety, when demand was made upon it, did not avail itself of this provision, is not clear, but it seems probable that it relied on its subrogation rights.

It is clear from the foregoing recital that the surety, being the owner by assignment of the claim of the district against the trust company in the amount of $50,-000, was clothed with authority to settle with the trust company, or its reorganization committee, hereinafter referred to, all its rights and claims against the trust company.

Subsequent to the Superintendent of Banks’ taking-over of the trust company for liquidation, a reorganizing committee was formed as a part of a program leading- to the reopening of the bank, and that committee negotiated with the surety and with other surety companies which carried liability covering certain other deposits of public funds, such negotiations resulting in an agreement, dated November 11,1932, and entered into in writing between the surety and the reorganization committee, whereby the committee proposed to pay on the day of the reopening of the bank and the surety agreed to accept, in full settlement of its claim, the sum equivalent to 50 per cent of its claim.

In such agreement there is a recital that by reason of the payment of the sum of' $50,000 to the district by reason of its bond, the surety “has become a common creditor of the said bank to the extent of $50,000, ’ ’ and a further recital that the surety “desires to cooperate and participate in the program leading- to the reopening- of the bank.”

In the written agreement between the surety and the reorganization committee it is stipulated that on the day of the opening of the bank, the bank shall pay to the surety “a sum equal to 50% of its present .claim against the bank, said claim being $50,000 and 50% thereof being $25,000.”

It is further stipulated and “mutually agreed that upon payment of the said 50% that said party of the first part will execute and deliver to the said bank a full and complete release of any and all claims that it may have against the said bank by reason of having-paid any amount as surety upon the bond of said bank to secure its said deposits.” And it is provided that this agreement is contingent upon similar agreements being made with other surety companies and like settlements being made with each company according to its respective interest, and in the event any common creditor receives a settlement greater than 50 per cent in cash at the time of reopening, the party of the first part will receive as good a percentage- of its deposit as the most favored common creditor who receives a cash settlement with the' bank.

After securing like agreements with other surety companies which had issued bonds securing deposits of other public funds, the trust company filed its application in the Common Pleas Court of Trumbull county praying for approval of its plan for the reopening of the bank and for an order authorizing the reopening of the bank upon the terms and conditions set forth in such application.

An “order to show cause” why the application of the trust company should not be granted and the plan approved for the reopening upon the terms and conditions set forth was duly entered and notice was given pursuant to such order. p

Among other matters set forth in the reopening application, it was alleged that “agreements of settlement have been entered into by the bank with the surety companies covering the liability of the bank upon .surety bonds which were required by law in connection with the deposit of public funds upon terms for the best interest of the depositors, and that said agreements of settlement with said surety companies have been approved by the Superintendent of Banks of the state of Ohio and which settlements provide for the payments to the said surety companies an amount equal to fifty per cent (50%) of their claims.”

The application further set forth certain proposed changes in the capital structure of the reopened bank, consideration of which makes it appear that the shareholders’ rights and liabilities would be materially altered.

The prayer of the application, as well as the notice given pursuant to the order to show cause, among other things provided that cause be shown by a day fixed why the rights of the depositors should not be materially altered as therein set forth, and why “the agreements of settlement made by The Niles Trust Company with the various surety companies covering the liability of the batik in connection with surety bonds which were required by law in connection with deposit of public funds, should not be ratified, confirmed, approved and made binding upon said bank and said surety companies.”

In due course the plan was approved, the bank was reopened pursuant to the order of the court, the name of The Niles Trust Company was changed to The Niles Bank Company and the various surety companies, including the surety, were paid 50 per cent of their respective claims. Beceipt for $25,000, dated June 15, 1933, was delivered to the bank by the surety, such receipt reciting that the payment was “in full for all claims and demands which we have or claim to have against the said The Niles Bank Company, particularly those shown and referred to in a memorandum of agreement between The Fidelity & Casualty Company of New York and the reorganization committee of The Niles Trust Company dated November 11, 1932.”

That receipt, prepared by the attorney for the surely, further recites:

“It is the intention of this receipt to release The Niles Bank Company and the reorganization committee of The Niles Trust Company from any and all liabilities of whatever kind or nature growing out of the said surety company having paid to various political subdivisions having deposits of public funds with The Niles Trust Company previous to its closing. And further, as an acknowledgment of the receipt of the amount provided for in the said agreement dated November 11, 1932.”

Much being made of it by counsel for the surety, it is hero proper to set forth that in the reopening application it is stated “that in the event said bank is permitted to open and resume business there will immediately be released and paid upon demand to depositors the following amounts: * * * (e) all trust funds.”

In the journal entry of the court, approving the plan and authorizing the reopening of the bank upon the terms set forth therein, it is stated:

“That upon the reopening of said The Niles Trust Company the following deposits shall be released for payment in full: * * *

“(d) All trust funds.”

In that connection, however, it is proper to say that the reopening journal entry also sets forth:

“That the contracts of settlement between said The Niles Trust Company and the several insurance and indemnity companies are found to be fair and reasonable and they are hereby approved and made binding upon said companies and the said The Niles Trust Company.”

There is no claim of any irregularity or illegality in the proceeding .to reopen the bank pursuant to the provisions of Section 710-89a, General Code, the application having been filed subsequent to March 23, 1933, the effective date of that section, which provides the jurisdiction of the Common Pleas Court, and among other things provides: ' ‘

“All depositors and creditors, including the state or any political subdivision thereof, if a creditor, who shall fail to file such objections within snch time fixed by the court, shall be conclusively deemed to have consented to the resumption of business by such bank upon the conditions approved by the court, and shall be bound by the order of the court approving the same.” (Italics ours.)

The surety’s status was that of an assignee of a political subdivision, the district, and stood in its position in certain respects. Aside from that, the surety was a creditor of the bank by reason of the agreement between it and the trust company as set forth in the application for surety bond, whereby the trust company agreed to indemnify and save harmless the surety from and against any and all losses of every kind that the surety might for any cause sustain or incur by reason or in consequence of its having executed the bond.

In the agreement of settlement the surety represented that it was a common creditor of the trust company (and it was such under the terms of the application for bond) and it agreed, for the consideration named, to release all its claims of whatever kind or nature. There was, therefore, no mutual mistake of fact at the execution of the settlement agreement, whether or not the parties at the time fully appreciated the nature of all rights of the surety against the trust company. Of course, the surety’s position could be either that of a common or preferred creditor on account of the same obligation, but satisfaction of the obligation terminated all its rights.

The provisions of Section 710-89&, General Code, above quoted, make no distinction between a common and a preferred creditor.

After the bank resumed business on June 15, 1933, under its changed name, and the $25,000 was paid to the surety in settlement of its claims in accordance with the agreement approved by the court, certain of the collateral held by the district as security for its deposit was sold and the liability of the bank to it thereby reduced to $147,610.97 as of September 22, 1934, after allowing credit by the district for the $50,-000 received from the surety. On that date, the directors of the district passed a resolution authorizing the withdrawal of the balance of its funds from the bank and the surrender of the remaining collateral held by the district, and this was accordingly done. At that time, as shown by the record, the value of the collateral surrendered to the bank was from $70,000 to $100,000.

In the meantime, about December 30, 1933, the Attorney General of Ohio rendered an opinion that the deposit of the district funds with the trust company was an illegal deposit and the transaction was null and void, assigning as reason therefor that at the time the trust company was selected and designated a depository the district had failed in its resolution, to designate the banks therein named as “temporary or assistant treasurer or treasurers,” and cited the following ' language of Section 6602-79, General Code:

“* * # [f [¶] should be deemed more expedient to the board of directors, as to moneys derived from the sale of bonds issued or from any other source, said board may by resolution, select some suitable bank or banks or other depository, which depository shall give good and sufficient bond, as temporary or assistant treasurer or treasurers, to hold and disburse said moneys on the orders of the board as the work progresses, until such fund is exhausted or transferred to the treasurer by order of the said board of directors. For such deposits the district shall receive not less than two nor more than four per cent interest per annum.” (Italics onrs.)

The opinion of the Attorney General is reported in Yol. 3, Opinions of Attorney General (1933), 1998, No. 2088. The opinion seems to proceed on the theory that- the statute requires the board of directors to designate the banks, in which its funds are deposited, as temporary or assistant treasurer or treasurers, and, since a treasurer, has no title to funds coming into his hands, such funds are trust funds and entitled to preference in payment from the assets of a bank in liquidation.

In our judgment the cases cited by the Attorney General in support of the above theory are not authority for the opinion that the funds in question here were trust funds, the facts in those cases being entirely dissimilar to the situation presented here.

The Niles Trust Company, designated as a depository, agreed to and did pay interest on the funds deposited with it by the district, in accordance with the interest rate provided in the statute.

It is our view that the quoted provision of Section 6602-79, General Code, clearly authorizes the district directors to select the banks as depositories, which was done, and that the words, “as temporary or assistant treasurer or treasurers,” modify bond and mean simply that such selected" depositories shall give the kind and character of bond as a temporary or assistant treasurer or treasurers are required to give. The proper interpretation of the word, “as,” is that it means “like” or “similar to.” See 4 Words and Phrases (Perm. Ed.), 286, which cites Van Pelt v. Hilliard., 75 Fla., 792, 78 So., 693, 697, L. R. A. 1918E, 639. See, also, the definition of the word, “as,” given in Webster’s International Dictionary.

Certainly no reasonable construction of the statute can be that the bank selected as a depository shall in fact be a treasurer or assistant- treasurer of the district, for the law is well settled that no treasurer of public funds can use the same for his or its own profit, it being definitely contemplated by the statute that the depository bank will have the right to use and invest such deposited funds in the same manner as it may invest the deposits of private individuals, since the depository must, by the provisions of the section, pay the district for such deposit not less than two nor more than four per cent interest per annum. We have not discovered an instance where a treasurer, assistant treasurer or temporary treasurer, as such, has been required to pay interest on the funds held by him or it, or where a treasurer, either assistant or temporary, has any right to use public funds for his own profit.

The question remains, however, whether the appointed depository bank gave “good and sufficient bond” as or similar to that required of a temporary or assistant treasurer. Until the giving of the $50,-000 bond executed by the surety, the depository bank had not given any “bond” in the technical meaning of that word, which imports a written instrument, with surety or sureties, guaranteeing the faithful performance of the acts or duties contemplated.

Nowhere in the “Sanitary District Act of Ohio” do we find any provision for the appointment of a temporary or assistant treasurer.

Section 6602-44, General Code, provides that “the secretary shall serve also as treasurer of the district, unless a treasurer is otherwise provided for by the board. ’ ’

Section 6602-79, General Code, provides:

“Said district treasurer shall, at the time of taking office, execute and deliver to the president of the board of directors of the said district, a bond with good and sufficient sureties, to be approved by the said board of directors, conditioned that he shall account for and pay over as required by law, and as ordered by said board of directors, any and all money received by him on the sale of such bonds, or any of them, or from any other source.”

Here the board of directors required the depository bank to furnish collateral security in the first instance, later supplemented by the surety bond executed by the surety. Can it now be claimed that the district’s voluntary act in accepting such collateral security for the deposit of its funds, instead of a written bond with good and sufficient sureties, was such an unlawful act as to constitute the deposit an unlawful deposit, creating the relationship of trustee on the part of the depository bank and securing tó the district a preference over other depositors upon liquidation of the bank? In a court of equity, the question answers itself.

We are not unmindful of the recent decision of the Supreme Court of Ohio, in the case of In re Cattell, 146 Ohio St., 112, 64 N. E. (2d), 416, in which the majority of the court gave a strict interpretation of the word "bond,” and held that this word as used in Section 11882, General Code, necessarily imports a written instrument executed by a surety. In the opinion Judge Turner clearly indicated that the decision is limited to a case involving the personal liberty of one found guilty of contempt for claimed violation of a restraining order of the court and who challenges the jurisdiction of the court.

No doubt the Legislature, in its wisdom, could have provided that the funds of the district when deposited in a depository bank, either with or without the required bond, would have a preference oyer other deposits, but it did not do so. Had the law so provided, all other depositors in such bank would have been bound with notice thereof. The result of such provision of law would ruin any bank. That was the appealing reason for the decision of the Supreme Court of Ohio in the case of Fidelity & Casualty Co. of New York v. Union Savings Bank Co., 119 Ohio St., 124, 162 N. E., 420. In that case, in which the plaintiff was the surety here, the court held that the depository act involved, Section 321 et seq., General Code, neither expressly nor impliedly gave to the state priority of payment out of funds of a banking institution in the event of insolvency. True, the deposit there was a legal deposit, but how much stronger the reason would apply to the situation in this case.

The instant case is clearly distinguishable from that of Franklin National Bank of Newark, Ohio, v. City of Newark, 96 Ohio St., 453, 118 N. E., 117, L. R. A. 1918E, 676, where the city treasurer, without any authority of law or direction of the city council, deposited city funds in the bank, without any requirement of the bank to pay interest on such deposit, and where the bank made a profit from the use of such funds. What the court did in that case was to require the bank to account for and pay over to the city the fund and all profits arising from the use of the deposit. There was' no question of insolvency of that bank or determination of a preferential status of the deposit on liquidation.' There was no necessity of the court to make such determination.

After the opinion of the Attorney General, above referred to, was rendered, this action was instituted, in which the surety seeks an accounting of the collateral security held by the district at the time of the execution of the $50,000 bond, still held by the bank when it was taken over for liquidation. The surety seeks the recovery of $25,000, with interest, being the difference between the amount paid to the district and the amount received from the bank on settlement of the surety’s claims. It is the claim of the surety in its second amended petition that the district was a preferred creditor of the trust company, such claim being based on the theory that the district’s deposit constituted trust funds in the possession of the trust company when it closed and on the reasoning of the Attorney General in his opinion; that the district was entitled to be paid in full under the reopening order of the court; that upon the surety being subrogated to the extent of $50,000 to the right of the district in such trust funds the surety was entitled to be paid in full instead of the $25,000 which it received upon its settlement agreement with the reorganization committee; and that such agreement and the receipt given pursuant thereto were executed by reason of a mutual mistake of the parties, it being alleged that at the time all of the parties acted in the belief that the district was a common creditor of the trust company, and that it was never the surety’s intention to settle its claim as a preferred creditor.

The surety further claims that by reason of its right to subrogation, either in accordance with its contract with the district or under the equitable doctrine of subrogation, the district was without authority to surrender, in return for the balance of its deposit, the collateral security held by it, without accounting to the surety therefor.

We have not attempted to state in the language of the second amended petition the claims of the surety, but give our understanding of the substance of such claims.

As stated above, the judgment and decree of the Common Pleas Court was for defendants. In its conclusions of law, the triál court held that the deposits by the district were not made in the manner required by Section 6602-79, General Code, as the bank was never selected as a temporary or assistant-treasurer; that the $50,000 bond given by the bank was not a good and sufficient bond for a half million dollar deposit; and that, therefore, the deposit was a trust fund and the right to its withdrawal constituted a preferred claim. However, the trial court held that the surety had, by the settlement agreement, released its rights as either a preferred or common creditor and found against the surety.

On this appeal it is stated in the surety’s brief that the issues in this court are purely legal and are as follows:

“1. Whether this court will order the enforcement of the decree of the Common Pleas Court which ordered, upon the reorganization of The Niles Trust Company, that all trust funds should be paid by the bank in full.

“2. Whether the court will apply the law which gives to either party the -right to avoid a settlement when such settlement contract has been made under a mutual mistake of facts.”

The second proposition, above quoted, has been amplified in oral argument and reply brief of the surety, and it now claims that the court should avoid the settlement contract if made under a mutual mistake of law .and fact, and that the trial court, sitting as a court of equity, should have avoided the settlement contract even though it was entered into solely because of a mutual mistake of law.

Being impressed with the sincerity and force with which the claims of able counsel representing all parties have been presented in this court, the writer of this opinion has painstakingly examined the pleadings, the transcript of the proceedings in the Common Pleas Oourt and the vohiminous record with numerous exhibits, as well as the briefs and authorities cited. This has consumed much time as the case was submitted at our September 1945 term in Trumbull county, but since the action was pending for 11 years in the trial court, all without unnecessary delay on the part of the trial judge or counsel, we have felt it our duty to set forth at length the material facts gathered from the record.

Was there a mutual mistake of facts which avoided the settlement agreement? Our answer to this question, arrived at from our thorough consideration of the pleadings and evidence, is “no.”

The application of the trust company to the surety, for the issuance of the surety bond plainly set forth that the trust company then had on deposit $425,943.24 of the funds of the district, bearing 2, 2% and 3 per cent interest and secured by “state and county” collateral in the amount of $493,575.64.

The application showed also that the bank held other deposits of certain cities and school districts, secured by “surety” bonds.

It was thus apparent to the surety that the only portion of the funds of the district which were secured by a bond, as distinguished from collateral, was such as would be secured by the $50,000 bond applied for and which the surety executed pursuant to such application. The application did not purport to be made by the trust company as a temporary or assistant treasurer of the district.

The application gave a list of public and other deposits covered by personal or corporate surety bonds or secured by collateral, in detail listed the names of such depositors, the amount deposited, the rate of interest paid thereon, the name of surety or description of collateral and the amount of bond and eollateral, and gave answer to every question contained in the printed form furnished by the surety. We find that the surety had full knowledge of all facts which it now claims rendered the deposit an illegal one thus making the deposit “trust funds” in the possession of the trust company. It follows that the mistake, if any, in assuming, at the time of entering into the settlement agreement, that the relationship between the trust company and the district was that of debtor and creditor was purely and only a mistake of law, if we consider the question in the most favorable, but not tenable, aspect.

We need not determine whether, when the surety executed and delivered its surety bond for $50,000, that portion of the deposit thereby became a legal deposit because secured by a good and sufficient bond, in the strict meaning of that word. Whether a trust relation existed between the trust company and the district is not decisive of this case. The surety with the advice and assistance of able counsel and with full knowledge of the facts executed the settlement agreement, and did so with the expressed intention of inducing the reopening of the bank, filed no objection to the plan of reopening, consented to the court’s approval of the settlement agreement, in effect caused the reopening order and assisted in altering the position of the shareholders and other depositors of the bank, as well as other surety companies, all of whom, including the district, had the right to rely upon the representations of the surety that its claims would be settled in full upon payment of $25,000,' which it received with the approval of the court.

We do not find the defense of estoppel specifically alleged in the pleadings of the defendants, but therein are recitals of facts constituting estoppel and a denial of right to relief, and at the hearing evidence was reeeived, without objection, of facts which clearly raised that defense. It would have been proper, on motion, to have allowed amendment, but without amendment the issue was in the case, especially in view of the statute which specifically and conclusively bars the surety from assailing the reopening order of the court.

The court of equity, in considering whether the contract of settlement should be avoided on the ground of mistake of law only, and some authority has been presented to that effect, would properly weigh the equities of all parties concerned and was not required to avoid the settlement on that ground.

We find no merit in the claim of the surety that it is entitled to relief because the reopening application, as well as the court’s order approving same and authorizing the bank to resume business, set forth that all trust funds be first paid. The court which rendered the decree in this case is the same court which granted the reopening order and was the proper tribunal to give construction to that order as set forth in its journal, and we find no error in the interpretation given thereto. It is clear that the court did not consider at that time that the district’s deposit was a trust fund or that the surety’s claim was a preferred one. The court certainly did not intend that the deposit should be paid in full and at the same time approve the settlement agreement whereby the surety was to and did receive $25,000 in full settlement of all its claims.

The reopening order of the Common Pleas Court has the force and effect of a final judgment and the surety is a party thereto and bound thereby in the absence of fraud, there having been no appeal therefrom. It will not do to say that the surety should be relieved of the force and effect of that judgment because the surety was mistaken in its legal rights. That would destroy the finality of judgments and set a dangerous precedent. Every other party to that proceeding could as well claim some relief on the ground that it did not know of its legal rights at the time. It is conceded that there was no fraud practiced by defendants, but that there was only a mutual mistake.

The district was not a party to the agreement of settlement between the surety and the reorganization committee of the ti;ust company. There was no failure of the exercise of good faith on the part of the trust company or the district, which would be due the surety by reason of the trust relationship arising from the execution and, delivery of the surety bond. There is no claim of any fraud or untruthfulness in the answers of the trust company to the questions in the application for the bond, nor can we perceive any material information then within the knowledge of the trust company or the district which was not set forth in the application for bond.

Emphasis has been placed by the surety upon the fact that in the district’s separate answer and cross-petition it alleges and admits that its deposit was a trust fund, and that it. was entitled to be paid in full as a preferred creditor of the trust company. Such allegations are mere conclusions of law and not statements of fact, but in any event would not bind the bank.

It is further claimed by the 'surety that the settlement agreement with the reorganization committee and the receipt for $25,000 executed pursuant thereto were intended to release only the bank, the district not being a party thereto, and, therefore, the surety has not released the district from liability for surrendering the collateral security upon payment of the balance of its deposits; and that under the subrogation agreement with the district the latter violated its terms and should be held liable in this action. ■ The answer to that claim is that when the surety settled with the trust company, and that settlement was approved by the court, all rights of the surety to subrogation, whether under its agreement with the district or upon the equitable doctrine of subrogation, perished with such settlement. Subrogation cannot exist independent of a right of recovery against the party causing the loss.

No prejudicial error is found in the judgment and decree of the Common Pleas Court, and, accordingly, such judgment and decree must be and is affirmed.

Judgment and decree affirmed.

Carter and Phillips, JJ., concur.