author: Metcalf, J.

text:
    Bond et al., Appellees, v. Littleton et al., Appellants.
    (No. 556
    Decided May 10, 1949.)

      Mr. Emory F. Smith, for appellees.

      Mr. Lowell C. Thompson, for appellants.
   Metcalf, J.

This is an appeal on questions of law from the Court of Common Pleas of Scioto County, wherein certain members of the fire department of the city of Portsmouth, plaintiffs, appellees, brought suit against the city manager, the chief of the fire department and the city of Portsmouth asking that the defendants be restrained from requiring the plaintiffs to work longer, than eight hours in any.one day or more than forty-eight hours in any week.

The trial court found in favor of the plaintiffs and granted the injunction prayed for.

The fire department of the city of Portsmouth and all the firemen of that department have been for considerable time and are now operating under the two platoon system as provided by Section 17-la, General Code. This section reads:

“It shall be the duty of the chief of the fire department of each city, unless said city is exempt from this provision as hereinafter stated, to divide the uniform force into not less than two platoons, and where the uniform force is so divided into two platoons the said chief shall keep a platoon of the uniform force on duty twenty-four consecutive hours, after which the platoon serving twenty-four hours shall be allowed to remain off duty for at least twenty-four consecutive hours, except in cases of extraordinary emergency. Each individual member of the platoon in addition to receiving a minimum of twenty-four hours off duty in each period of forty-eight hours shall receive an additional period of twenty-four consecutive hours off duty in each period of fourteen days so that no individual member shall be on duty more than a total of one hundred and forty-four hours in any period of fourteen days. The chief of the fire department shall arrange the schedule of working hours to comply with the provisions of this section. In each city all employees of the fire department shall be given not less than two weeks’ leave of absence annually, with full pay. The provisions of this section relating to the off duty periods shall not apply to any city that may have adopted or may hereafter adopt the eight hour regulation for its fire department, but the provisions relating to the two weeks ’ leave of absence shall apply thereto.”

The city of Portsmouth has the charter form of government and Section 164 of the charter reads:

“Hours of Labor.

“Section 164. Except in the case of extraordinary emergencies, not to exceed eight hours shall constitute a day’s work and not to exceed forty-eight hours a week’s work, for any city employe of the city of Portsmouth in the classified service thereof, and for any workman engaged in any public work carried on or aided by the municipality whether done by contract or otherwise. Provision shall be made by ordinance for the enforcement of this section.”

This case was tried on an agreed statement of facts and for clarity we set forth two paragraphs of the stipulation which are pertinent.

“4. That for a long period of time at the time of the filing of this action and now, the plaintiffs and other employees of the fire department of said city of Portsmouth similarly situated, have been assigned by the administrative executives of said city and required to be on duty as such employees seventy-two (72) hours per week under what is commonly known as the two-platoon system, which in effect requires said employees to report for work and be at their posts of duty as such employees 24 hours and then be off duty 24 hours, with one 24-hour period allowed them as a day off every 14 days, such one 24-hour period being an extra day off every 14 days.”

“7. It is further agreed that there is no ordinance of the city of Portsmouth specifically prescribing the work day or hours of employment of the plaintiffs, but that the assignment of their work days and hours of work as mentioned aforesaid has been made by the defendants as an administrative practice by them in their official capacities.”

The sole question in issue in this appeal is whether Section 17-la, General Code, or Section 164 of the city charter controls the working hours of the fire department of the city of Portsmouth.

It will be noted that the last sentence of Section 17-la, General Code, supra, provides that the off-duty periods therein set out shall not apply to any city that may adopt the eight hour regulation for its fire department. Plaintiffs claim that Section 164, supra, of the charter is such an adoption, is self-executing and therefore governs. The defendants contend that this section of the charter is not self-executing and that since no legislation has been provided thereunder by the council of the city of Portsmouth, Section 17-la, General Code, controls.

While counsel for both parties have ably briefed the law not only of Ohio but other jurisdictions as well, we need look no further than the Supreme Court of Ohio for the correct solution of the question presented.

Section 164 of the charter, supra, stems directly from and is almost in the same phraseology as Section 37, Article II of the Constitution, save and except the city charter includes the words “for the city employee of the city of Portsmouth in the classified service thereof.”

The Supreme Court of Ohio in the case of Stange v. City of Cleveland, 94 Ohio St., 377, 380, 114 N. E., 261, held that Section 37, Article II, supra, is not self-executing, saying:

“This provision was not self-executing within the definition that a self-executing provision is one which supplies the rule or means by which the right given may be enforced or protected or by which a duty enjoined may be performed.”

The holding in the 8tange case is a direct and definite negative answer to plaintiffs’ contention that Section 164 of the charter under consideration is self-executing.

The Supreme Court has also held in Haas v. Jennings, 120 Ohio St., 370, 166 N. E., 357, that a provision in a city charter that does not carry with it the mode or manner of enforcement is not self-executing.

Until such time as the city of Portsmouth provides by proper legislation under the exception in the last sentence of Section 17-la, General Code, the eight-hour regulation for its fire department, that department is controlled by the state statutes. Under such circumstances the case of State, ex rel. Strain, Dir. of Dept. of Indus. Relations, v. Houston, Chief of Fire Dept. of City of Cincinnati, 138 Ohio St., 203, 34 N. E. (2d), 219, is dispositive of this appeal. The Supreme Court there holds that Section 17-la is valid and does not violate the principle of local self-government in municipalities of this state.

The city of Portsmouth, having been granted and having accepted the privileges of charter or home-rule government under the Constitution, is not exempt nor has it immunity from legislative control relating to employment of firemen in the fire department simply by setting forth in its charter that “not to exceed eight hours shall constitute a day’s work and not to exceed forty-eight hours a week’s work, for any city employe of the city * * * in the classified service thereof.” If Section 164 of the charter so exempts the city from the statutory regulation provided by the Legislature for the regulation of fire departments, then violence is done to those safeguards that have been thrown around the employment of city firemen. The Legislature of Ohio recognized that something more was necessary to protect firemen and the fire department than the mere pronouncement of the maximum hours of employment, otherwise Section 17-1, General Code, which provides the number of hours constituting a day’s work or week’s work would not have specifically excepted firemen. Not only did the Legislature except firemen but enacted the following section, Section 17-la, General Code, specifically providing for the maximum consecutive hours for firemen on duty as well as off-duty periods, and leaves of absence.

The very nature and purpose of a city fire department are too important not only to the firemen employed but the public generally to be lightly treated. The section of the charter under consideration recognizes this when it is provided therein that provision shall be made by ordinance for the enforcement of the eight-hour day and forty-eight hour week. Considering the function of a fire department as it affects life and property, not only of the citizens of Portsmouth but of the public generally, it is a serious question whether Section 164 of the city charter even applies to the fire department when it refers to the classified service. Certainly the plaintiffs in this case should hesitate to acquiesce in nullifying the protective legislation afforded by the state. Standing alone, this section of the charter is in direct conflict with the general law provided by the state. As declared in the Houston case, supra, at page 212, “The protection of life and property from the hazards of fire, conserves the private as well as the public resources of the country and consequently is a matter of public welfare and concern.

“Likewise, adequate fire protection calls for the employment of great numbers of men who are obliged to live under modes of life and conditions of employment which take them away from their homes for longer intervals of time than most employments, and which expose them to unusual dangers of life and limb. Likewise, the health of such employees is constantly placed in jeopardy by the incidents of their employment. These are considerations which call for the exercise of the police power in the interest of the public and the state. The Legislature is given large discretion in determining the measures which are necessary or appropriate to secure the public welfare.”

Because of the applicability of the Houston case to the situation that confronts us, we take the liberty of setting forth the comment of the court on the various provisions of the Ohio Constitution affecting the hours of employment and the conditions under which firemen of cities shall work together with the power granted and reserved to cities to enact such regulations as well as those reserved to the state. The court in the Houston case, supra, said at page 209:

‘ ‘ Section 1 of Article II of the Constitution provides that the legislative power of the state shall be vested in a General Assembly consisting of a Senate' and House of Representatives; and that except where authorized under the initiative and referendum, all legislative authority of the state must be exercised alone by the General Assembly.

“Authority exists in the Legislature to diminish, regulate or resume the powers it has conferred on all municipal corporations, unless interdicted by the Constitution. This necessarily results from the fact that under the Constitution all legislative power of the people is granted to the Legislature subject to the initiative and referendum, unless such legislative power is expressly or by clear implication granted to .municipalities or other governmental subdivisions as arms of state government. People v. Pinckey, 32 N. Y., 377. The constitutional grants of power to municipalities in this state are contained in Sections 3 and 7 of Article XVIII of the Constitution which are as follows:

“ ‘Sec. 3. Municipalities shall have authority to exercise all powers of local self-government and to adopt and enforce within their limits such local police, sanitary and other similar regulations, as are not in conflict with general laws. ’

“ ‘Sec. 7. Any municipality may frame and adopt or amend a charter for its government and may, subject to the provisions of Section 3 of this article, exercise thereunder all powers of local self-government.’ “In this connection, attention must be given to the broad powers reserved under the Constitution to the Legislature of the state by Sections 34 and 37 of Article II, which are as follows:

“ ‘Sec. 34. Laws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety and general welfare of all employees; and no other provision of the Constitution shall impair or limit this power.’

“ ‘Sec. 37. Except in cases of extraordinary emergency, not to exceed eight hours shall constitute a day’s work, and not to exceed forty-eight hours a week’s work, for workmen engaged on any public work carried on or aided by the state, or any political subdivision thereof, whether done by contract, or otherwise. ’

“Thus, power is granted to municipal corporations to legislate in the interest of public peace and the protection of persons and property within their territorial limits, but such legislation must not conflict with state legislation on the same subject, and there is reserved to the Legislature power to direct the manner and method by which municipal corporations shall effectively carry out their functions having to do with the preservation of the peace and the protection of persons and property. Niehaus, Bldg. Inspector, v. State, ex rel. Board of Education of City of Dayton, 111 Ohio St., 47, 52, 53, 144 N. E., 433; State, ex rel. Ramey, v. Davis et al., County Commrs., 119 Ohio St., 596, 599, 165 N. E., 298. As was said * * * in the case of Schneiderman v. Sesanstein, 121 Ohio St., 80, 82, 167 N. E., 158, 64 A. L. R., 981, ‘ The police power thus conferred by the Constitution cannot be denied municipalities by statute, but that power is restricted, in that such “local police, sanitary and other similar regulations” must not be “in conflict with general laws.” Thus the legislative branch of the state government enacts laws to safeguard the peace, health, morals, and safety, and to protect the property of the people of the state, and these are the general laws referred to. They apply to all parts of the state alike. Municipalities may adopt and enforce local regulations covering the same subject so long and so far as the same are not in conflict with general laws. ’ See, also, City of Fremont v. Keating, 96 Ohio St., 468, 118 N. E., 114.

‘ ‘ On the other hand, matters which have to do with city management, the distribution of official function and responsibility, the improvement of the territory comprised within the limits of the corporation and its adaptation to the purposes of residence and business, are within the peculiar jurisdiction and control of local municipal government. 28 Ohio Jurisprudence, 228, Section 120.

“Section 17-1 a, General Code, the validity of which is here drawn in question, regulates the hours of employment and the conditions under which firemen of cities shall work. The question before the court must necessarily be whether this is a matter of general public concern having implications which transcend municipal boundaries. ’ ’

In holding that the question presented is a matter of general public concern transcending municipal boundaries, the Supreme Court in the Houston case, supra, points out the policy of the state of Ohio relating to fire protection and to the welfare of firemen, as expressed both in state legislation and in court decisions, that the state, through legislative enactment, has established a state-wide fire protective policy in providing an exhaustive state building code to protect against fire hazards, and a department of workshops and factories to inspect buildings and eliminate fire hazards by ordering alterations and preventing the use of buildings until compliance with lawful orders; and that the state also has established a tenure subject to removal for cause for the members of the fire departments of villages and a civil service status for firemen in cities together with a state-wide system of firemen’s pensions, all of which are considered matters of statewide concern subject to state legislation. See Thompson v. City of Marion, 134 Ohio St., 122, 16 N. E. (2d), 208.

In the instant case it should readily be seen that the welfare of the firemen of the city of Portsmouth together with the fire protection afforded by the fire department transcends the narrow limitations of the phraseology of Section 164 of the city charter.

To hold otherwise would deprive both the firemen and the city of the protective legislation afforded by the state. To find that it was the intent of the city to enact, under Section 164 of its charter, not only the “hours of work” but the working conditions and the protective legislation referred to as well, the court in the instant case must legislate and that the court cannot do. The framers of the charter recognized ¿his principle when it was specifically stated that “provision shall be made by ordinance for the enforcement of this section.”

For the reasons hereinbefore given and more especially those set forth in the Houston case, supra, the injunction heretofore entered by the trial court must be dissolved, its judgment reversed and judgment entered for the defendants.

Judgment reversed and judgment for defendants.

McCurdy, P. J., and Gillen, J., concur.


source: Caselaw Access Project

author: Wiseman, J.

license: Public Domain

text:
    In re Calhoun.

      (No. 2073
    Decided December 19, 1949.)

      Mr. Louis G. Gapelle, for petitioner.

      Mr. Herbert 8. Beane, city attorney, and Mr. William P. Keane, for respondent.
   Wiseman, J.

This is an action in habeas corpus, originating in this court, in which the petitioner seeks his release from the Dayton workhouse where he is now confined on two sentences imposed by the Municipal Court of Dayton. The petitioner claims that he is unlawfully restrained of his liberty on two grounds:

The petitioner was convicted in the Municipal Court of Dayton in case No. 91457 for assault and in case No. 71415 for assault and battery in violation of ordinance- No. 943-2 of the city of Dayton, which he claims is a void ordinance for the reason that it is in conflict with the general laws of this state, particularly Section 12423, General Code. Petitioner claims that he pleaded not guilty and was tried by the court without the intervention of a jury in violation of Sections 1579-46 and 13442-4, General Code. Being found guilty on both charges, the petitioner was sentenced to one year imprisonment in the Dayton workhouse and the payment of a $1,000 fine in each case, the sentences to run consecutively.

The ordinance under which the petitioner was tried provides that the penalty for assault or assault and battery shall be “not more than one thousand dollars ($1,000), or imprisoned not more than one (1) year in the city workhouse, or both.”

Section 12423, General Code, provides that the penalty for assault or assault and battery shall be “not more than two hundred dollars, or imprisoned not more than six months, or both.” Section 3628, General Code, is cited by the petitioner in support of his contention that the ordinance is invalid since it prescribes a penalty for a misdemeanor in excess of that prescribed by such Code section. Section 3628, General Code, confers authority on municipalities to provide punishment for violation of city ordinaneés, and provides as follows:

“To make the violation of ordinances a misdemean- or, and to provide for the punishment thereof by fine or imprisonment, or both, but such fine shall not exceed five hundred dollars and such imprisonment shall not exceed six months. ’ ’ •:

Petitioner contends that ordinance No. 943-2 of the city of Dayton is invalid because it prescribes a penalty in excess of five hundred dollars and imprisonment in excess of six months.

Under the home-rule amendment of the Ohio Constitution, adopted in 1912, municipalities are given all powers of local self-government.- Under this amendment (Section 3, Article XVIII, Ohio Constitution) municipalities derive their- authority to enact municipal legislation relating to minor offenses and such authority is 'limited only by the proviso that such legislation-shall not be in conflict with the general laws.

We have presented for determination the narrow question whether ordinance No. 943-2 is in conflict with the general laws of the state, since the penalty prescribed is in excess of that permitted under Section 3628,"General Code,-and greater than that prescribed in Section 12423, General Code. It has been held that since’ the adoption of the home-rule amendment Section 3628, General Code, is ineffective as a limitation on -the powers of a municipality to enforce within their limits local police regulations: The only limitation which now exists is -that such regulations shall not be in conflict with general laws upon the same subject matter. City of Youngstown v. Evans, 121 Ohio St., 342, 168 N. E., 844. Whether a municipal ordinance conflicts with the general laws is not determined by ■ the. penalties prescribed but rather whether the ordinance permits or licenses that which the statute prohibits, and forbids, and vice versa. State, ex rel. Cozart, v. Carran, City Mgr., 133 Ohio St., 50, 11 N. E. (2d), 245; Struthers v. Sokol, 108 Ohio St., 263, 140 N. E., 519; Kistler v. City of Warren, 58 Ohio App., 531, 16 N. E. (2d), 948; Village of Leipsic v. Folk, 38 Ohio App., 177; Ermekiel v. State, 8 Ohio Law Abs., 121; Marko v. City of Youngstown, 6 Ohio Law Abs., 477. In those cases it was held that a conflict did not arise between a municipal ordinance and the general laws from the fact that the municipal ordinances prescribed a penalty in excess of that permitted by Section 3628, General Code.

The petitioner contends also that the ordinance in question prescribes cruel and inhuman punishment as it permits the court to sentence a prisoner to. one year in the workhouse and the payment of'a $1,000 fine for simple assault. Section 9, Article I of the Ohio Constitution, forbids the infliction of “cruel and unusual punishments.” Whether a penalty prescribed constitutes cruel and unusual' punishment is determined not by the amount of the fine or the length of the sentence in a penal institution which may be imposed, but rather by the nature of the punishment. “Cruel and unusual punishment” has been defined to mean punishment by torture or where'the prisoner was drawn and dragged to the place of execution; where he was disemboweled alive; beheaded and quartered; or publicly dissected and burned' alive. Holt v. State, 107 Ohio St., 307, 314, 140 N. E., 349. Certainly it cannot be successfully contended that the punishment' prescribed by ordinance No. 943-2 is cruel and unusual.

The petitioner contends that he was tried by the court without the intervention of a jury. The point is made that since the petitioner did not waive a jury trial in writing, as provided by Section 13442-4, Gen eral Code, he was entitled to be tried by a jury rather than by the court. It is contended that under Section 1579-46, General Code, the police court of the city of Dayton is a court of record and, therefore, the provisions of Section 13442-4, General Code, are applicable. This section provides that in all criminal cases pending in courts of record in this state the defendant shall have the right -to waive a trial by jury and such waiver shall be in writing, signed by the defendant and .filed in the cause and made a part of the record thereof. The right to a jury trial in the Municipal Court of Dayton is controlled by Section 1579-60, General Code, which in part provides as follows:

“All causes, both civil and otherwise, in the Municipal Court shall be tried to the court, unless a jury shall be demanded in writing by either party to the action. The court shall have power to determine by appropriate rule the time and manner in which a jury shall be demanded.”

This section preserves the right to a trial by jury, but prescribes that the cause shall be tried to the court unless a jury is demanded in writing. In the instant case, the record does not show that the petitioner made a written demand to be tried by a jury. We are required to rely on the presumption that, in absence of a showing to the contrary, the proceedings in the trial court were regular and in all respects in conformity to law. Therefore we must assume that the petitioner made no written demand to be tried by a jury.

It has been held that a municipal court act which provides that a jury must be demanded is not in violation of the constitutional provisions guaranteeing the right to a jury trial. Hoffman v. State, 98 Ohio St., 137, 120 N. E., 234. Furthermore, it has been held that Section 13442-4, General Code, does not supersede a provision in a municipal court act that a cause shall be tried by the court unless a jury is demanded in writing. Holub v. State, 127 Ohio St., 34, 186 N. E., 708. See, also, State v. Partanen, 67 Ohio App., 248, 36 N. E. (2d), 422, wherein the court had presented to it the same question which is presented in the instant case. In that case the court held that the provision in the act creating the Municipal Court of Painesville, relative, to the procedure to be followed if a jury trial is desired, controls over the general provisions relative to the subject of jury trials.

Petitioner remanded to custody.

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


author: Hildebeant, J.

text:
    Volmer, Appellee, v. Hoel, Appellant.
    (No. 7207
    Decided February 6, 1950.)

      Messrs. Dolle dé Rueger, for appellee.

      Mr. Robert G. McIntosh, for appellant.
   Hildebeant, J.

Plaintiff’s cause of action, upon which he recovered a verdict and judgment, arose when he sustained bodily injuries in an automobile accident which occurred on Spring Grove avenue in the city of Cincinnati, Hamilton county, Ohio, on April 23, 1946.

The principal contention made on this appeal on questions of law is that the suit is now barred by the two-year statute of limitation set forth in Section 11224-1, General Code, for such bodily injuries, for the reason that no valid service of process was had on the defendant in this case.

Under favor of Section 6308, General Code, plaintiff chose Hamilton county as the venue and filed his petition on April 10, 1948, within the two-year limitation referred to above, with praecipe for summons directed to the sheriff of Darke county, Ohio, for the defendant who had given his address at the time of the accident as 509 West Wayne street, Versailles, Ohio.

On April 19, 1948, this summons was returned endorsed: “Received this writ on the 12th day of April, 1948, one Joe Hoel can not be found in our bailiwick.

“Evert Snyder, sheriff Darke county.”

On May 5, 1948, Robert E. Dolle, counsel for plaintiff, made and filed with the clerk of courts the following affidavit, included in the original papers in this case, to wit:

“State of Ohio,' County of Hamilton, ss:

“Robert E. Dolle, being duly sworn, says that he is attorney for the plaintiff in the above entitled action, which is an action to recover money damages for personal injuries arising out of an automobile collision which occurred in Hamilton county, Ohio; that the defendant’s place of residence at the time of the collision was 509 West Wayne street, Versailles, Ohio, which is his last known residence; that his present residence is unknown and cannot, with reasonable diligence be ascertained ; that plaintiff has made diligent effort to locate the defendant herein and serve him with summons, but said defendant has concealed himself or moved from the state of Ohio, so that service of summons cannot be made within the State of Ohio on him.

“Robert E. Dolle.”

On the same day praecipe for alias summons was filed and returned on May 31,1948, as follows:

“Ralph J. Paul, sheriff of Franklin county, Ohio, first being duly sworn, deposes and says that he has been duly authorized and deputized by the sheriff of Hamilton county, Ohio, • to serve this writ, and that pursuant to his command, on the 10th day of May, 1948, he served the within named defendant, Joe Hoel, by leaving a true and certified copy of this writ with all the endorsements thereon, and a check for two dollars ($2.00), at the office of Edward J. Hummel, Secretary of the State of Ohio, as agent for said defendant in this process.

“Ralph J. Paul,

“sheriff, Franklin county, Ohio.”

(The return was duly verified according to law.)

“State of Ohio, Hamilton County, Received this Writ 5th day of May, 1948, at 11:21 o’clock, a. m. and on the 10th day of May, 1948, I served the within named Joe Hoel of' 509 West Wayne St., Versailles, Ohio, by deputizing the sheriff of Franklin county for such purpose, who as such deputy left at the office of Edward J. Hummel, Secretary of State, a true and certified copy of this writ with all the endorsements thereon. And on the 15th day of May, 1948, I served the within named Joe Hoel of 509 West Wayne St., Versailles, Ohio, by sending to him addressed to his last known address, by registered mail, postáge prepaid, a true and certified copy of this writ with all the endorsements thereon, of the service upon the Secretary of State in the case; the mailing receipt and the returned envelope, marked moved, left no address is .attached herewith and made part of this return.

“C. Taylor Handman, sheriff of

“Hamilton county, Ohio,

“By Jámes E. Molloy,

“Deputy.”

Continuing the chronology, on August 18, 1948, by leave, motion to quash service of summons was filed, together with two affidavits of'the defendant and, later, on November 4, 1948, counter-affidavits on behalf of plaintiff were filed.

On November 4, 1948, the court orally directed and granted plaintiff leave to amend his petition, and hearing on the motion to quash was continued for 30 days, and actually never heard, and none of the affidavits filed in connection therewith being brought on the record by attachment to the bill of exceptions, they are not before the court.

On November 20, 1948, plaintiff filed an amended petition with praecipe for summons thereon, which was directed to the sheriff of Madison county, Ohio, whose attached return shows personal service on the defendant.

Defendant demurred to the amended petition, contending the above record shows no valid service within the time limited for the commencement of the action.

The substituted service shown by this record was had in conformity to Section 6308-1, General Code, which provides:

“Any nonresident of this state, being the operator or owner of any motor vehicle, who shall accept the privilege extended by the law of this state to nonresident operators and owners, of operating a motor vehicle, or of having the same operated, within the state of Ohio, or any resident of this state, being the licensed operator or owner of any motor vehicle under the laws of this state, who shall subsequently become a nonresident or shall conceal his whereabouts, shall, by such acceptance or licensure, as the case may be, and by the operation of such motor vehicle within the state of Ohio, make and constitute the Secretary of State of the state of Ohio his, her, or their agent for the service of process in any civil suit or proceeding instituted in the courts of the state of Ohio against such operator or owner of such motor vehicle, arising out of, or by reason of, any accident or collision occurring within the state in which such motor vehicle is involved.” Section 6308-2, General Code, provides for deputizing the sheriff of Franklin county to serve the Secretary of State, which part of this record is not questioned here.

Section 6308-5, General Code, provides:

“This act shall be construed to extend the right of service of process upon nonresidents and upon residents who subsequently become nonresidents or who conceal their whereabouts, and shall not be construed as limiting any provisions for the service of process now or hereafter existing.”

In a case decisive of the one at bar, our Supreme Court in Hendershot v. Ferkel, 144 Ohio St., 112, 56 N. E. (2d), 205, held in the second paragraph of the syllabus:

“Section 6308-2, General Code, providing in substance that process shall be served by the officer to whom directed or by the sheriff of Franklin county, upon being deputized, upon the Secretary of State of Ohio and by sending to the defendant by registered mail, postage prepaid, a like, true and attested copy thereof with an endorsement thereon of the service upon said Secretary of State, • addressed to such defendant at his last known address and that ‘The registered mail return receipt of such defendant shall be attached to and made a part of the return of service of process ’ makes it reasonably certain that such notice will be received by the defendant and does not require actual delivery of the notice to give the court jurisdiction in the cause, and is not constitutionally invalid.”

In that case the attested copy of the substituted service,. sent by registered mail to tbe last known address of tbe defendant, was returned by tbe postal establishment, endorsed, “Unknown at address,” just as the return here shows, “Moved left no address;” In commenting on whether Section 6308-2, General Code, required actual notice to the defendant, the court said at page 119:

“The provision for mailing the copy of summons ‘to the last known address’ in itself evidences -a legislative intent to provide for cases in which notice is not actually delivered to the defendant. Were it intended in every case that notice be actually delivered to a defendant, there would be no necessity for providing that notice should be sent to a particular place, to wit, the ‘last known address.’ ”

The court then observed that Section 11286, General Code, providing the method of service in civil actions, effective for many years, does not require actual delivery of the summons to the defendant, but makes service valid by “leaving a copy at his usual place of residence.”

As to the effect on due process of the want of delivery to the defendant personally of the registered letter containing the attested copy of the summons and absence of a signed receipt therefor, the court said at page 118:

“It is now well established by the case of Wuchter v. Pizzutti, 276 U. S., 13, 72 L. Ed., 446, 48 S. Ct., 259, 37 A. L. R., 1230, and the case of Hess v. Pawloski, 274 U. S., 352, 71 L. Ed., 1091, 47 S. Ct., 632, decided by the Supreme Court of the United States, that actual notice to a nonresident defendant in such a case is not essential to due process. In the opinion in the Wuchter case-, Chief Justice Taft, after citing numerous cases, made the following pertinent statement:

“ ‘These cases and others-indicate a general trend of authority toward sustaining the validity of service of process, if the statutory provisions in themselves indicate that there is reasonable probability that if the statutes are complied with, the defendant will receive actual notice, and that is the principle that we think should apply here.’ ”

As to whether the summons was sent to the place which was the last known address and whether the requirement of due diligence was met, the court stated at pages 117 and 118:

“Whether the summons was sent to the place which was ‘the last known address’ of the defendant is a question of fact, presumably determined by the court upon competent evidence. It is claimed in argument that the trial court heard such evidence, although the testimony is not brought into the record and is not before this court. See 5 American Jurisprudence, 831, Section 591; 82 A. L. R., 772; 96 A. L. R., 597; 125 A. L. R., 469 — citing State, ex rel. Nelson, v. Grimm, 219 Wis., 630, 263 N. W., 583, 102 A. L. R., 220.

“Conceding the insurance company’s claim that the plaintiff must use diligence to ascertain the ‘last known address’ of the defendant, nevertheless that’Was a question for the determination of the Court of Common Pleas in the original damage action and presumably was there determined. ” ■ •

We, therefore, presume from the record here that those questions were determined by the trial court upon competent evidence.

While Sections 6308-1 and 6308-2, General Code, pro-' viding for the substituted service here involved, are in derogation of common law, and to be. strictly ■ construed in investing the court with jurisdiction, and do not specifically provide for the affidavit filed by plaintiff’s attorney prior to filing a praecipe for substituted service herein, yet Section 6308-5, General .Code, states that the act shall be construed to extend the right of service of process upon those named in the act and shall not be construed as limiting any provisions for service of process now or hereafter existing. So, by analogy to those code provisions wherein affidavits for constructive service are required, it would appear to be a logical practice even though not specifically required.

We, therefore, conclude that the substituted service had herein was valid. The action is deemed to be commenced according to the provisions of Section 11231, General Code, which reads as follows:

Within the meaning of this chapter, an attempt to commence an action shall be deemed to be equivalent to its commencement, when the party diligently endeavors to procure a service, if such attempt be followed by service within sixty days.”

It is urged that by the filing of the amended petition herein, plaintiff abandoned his original petition so that clearly no service has been had within the two-year statutory limitation. Examination of the amended petition shows no different additional cause of action requiring the issuance and service of further summons. .

Without passing upon the efficacy of the personal service on the defendant obtained in Madison county in November 1948, shown by the record herein, we call attention to the case of Couts v. Rose, 152 Ohio St., 458, 90 N. E. (2d), 139, decided January 11, 1950, since this court began its consideration of the instant case, wherein it is held:

“A person injured in an automobile collision occurring in this state is not obliged to institute his action for his injury against a nonresident defendant and secure service through Section 6308-1, General ■Code, within the time limitation provided by Section 11224-1, General Code, but under favor of the provisions of Section 11228, General Code, he may proceed to institute his action through Section 6308-1, General Code, at any time before the defendant returns to the state. ’ ’

By analogy, the cause of action here would seem to be similarly protected from the limitation of Section 11224-1, General Code, upon opportunity given to make the record as to the time of concealment so that the validity of the personal service here might possibly be established.

The court has examined the other assignments of error herein and found no error prejudicial to thé dedefendant upon the record.

The judgment is affirmed.

Judgment affirmed.

Hildebbant and Matthews, JJ., concur in the syllabus, opinion and judgment.

Ross, J., dissents. The record fails to show any support for the application of the provisions of Section 6308-1, General Code. The judgment should be reversed, and judgment here entered for defendant.


author: Guernsey, P. J.

text:
    Central National Bank of Cleveland, Appellee, v. International Sales Co., Appellant ; et al., Appellees.

      (No. 21532
    Decided January 4, 1950.)

      Messrs. Lay tin é Smith, for appellee, Centra] National Bank.

      Mr. Jack J. Y els on, for appellant.

      Messrs. Baker, Hostetler <& Patterson and Mr. Albert J. Williams, for defendant appellees.
   Guernsey, P. J.

This is an appeal on questions of law from a judgment of the Municipal Court of Cleveland, in an action for a declaratory judgment instituted in that court and known as case No. A-11204 in that court.

The case was filed by the Central National Bank of Cleveland, plaintiff* appellee herein, making International Sales Company and Milton Goldberger, Universal Sales Company and James F. Rogers defendants. For simplicity, the International Sales Company and Milton Goldberger will hereinafter be referred to as defendant appellant, and the Universal Sales Company and James F. Rogers will be referred to as defendant appellee. The plaintiff will be referred to as the bank.

The bank sets forth in its petition that defendant appellant issued its check No; 428 on August 8, 1947, in the amount of $561.46 payable to the defendant appellee; that on August 9,-1947, defendant appellant orally requested the bank' to stop payment on the check and on the same day. defendant appellant sent a telegram- to defendant appellee, 'Stating that payment upon such check had been stopped; and that the bank sent a written confirmation of its “stop” order to defendant appellant. This written confirmation provided that the bank should not be liable if the check should be paid through inadvertence, accident or oversight of the bank. The bank further sets forth that on August 11, 1947, through inadvertence, oversight and accident it made payment on the check; -that on August 12, 1947* defendant appellant issued its check No. 440 in the amount of $500 to the order of the defendant appellee; and that on August 14, such check was paid.

The bank then sets forth that the commercial account maintained by the defendant appellant was subject to the rules and regulations of the bank wherein ■the bank was not to be held- liable on account of payment contrary to the “stop” payment requested if the same should occur through inadvertence, accident or oversight of the bank.

The bank alleges further that the defendant appellee claims that the defendant appellant was indebted to defendant appellee in a sum greater than the amount of both such checks. The bank then prays that the Municipal Court declare the rights and liabilities of the parties hereto growing out of the payment of the two checks and that the court declare whether the bank’s failure to comply with the “stop payment” order is excused by its rules and regulations and that the court completely settle the rights and liabilities of the parties growing out of the payment of. the two checks.

The defendant appellee filed its answer, setting forth substantially that the defendant appellant was indebted to defendant appellee in an amount greater than the sum of the two checks, and prayed that the court declare and decree that there remain due and owing to the defendant appellee from defendant appellant the sum of $115.39.

Defendant appellant filed two motions, one to quash service of summons in that there was no partnership known as International Sales Company, and the second to elect against whom to proceed, either the International Sales Company, a partnership, • or Milton Goldberger, doing business as International Sales Company. Both motions were overruled.

Defendant appellant then filed two answers, one to the answer of defendant appellee denying defendant appellee’s claim and the other being an answer to the bank, setting forth as- its second defense that there was a prior action pending in the same court between the bank and the defendant appellant wherein the defendant appellant sued the bank for the amount of the first check, being in the amount of $541.46 or check No. 428.

Defendant appellant filed an amended answer setting forth in the second defense, at greater length, the fact of the prior pending action, and praying that this action be dismissed or, in the alternative, to render judgment for defendant appellant. '

Defendant appellant then filed its motion to dismiss this action upon two grounds: (1) That there was a prior pending action upon the same cause of action and between the same parties wherein a jury trial had been demanded, and (2) that this cause is not a proper subject for declaratory judgment.

Defendant appellee was granted leave to amend its answer which amendment increased the amount of indebtedness claimed to be due and owing from defendant appellant to defendant appellee and praying for the court to declare and decree that there remains due and owing from defendant appellant to defendant appellee the sum of $661.60.

A demurrer to the second paragraph on page two of the amended answer of the defendant appellee was filed by defendant appellant, the paragraph referred to being in the words and figures following, to wit: ■

“That at the time of the execution of both checks International Sales Company was indebted to-Universal Sales Company in a sum greater than the combined amounts of both checks, and that International Sales Company still owes Universal Sales Company a balance upon an account, due and payable at the time both checks were issued.”

The court took the motion to dismiss and the de - murrer under advisement, but in the meantime, the parties were ordered to trial, and on July 9, 1948, trial was had before the court without a jury.

On March 17,1949, there was a finding and judgment for the bank. On March 21, 1949, the entry of March 17,. 1949, was corrected to read that judgment was also.. rendered for defendant appellee against defendant appellant in the amount of $661.60.

. A motion for new trial was filed by defendant appellant and the court was asked to dismiss the petition on the ground of lack of jurisdiction, and was further asked for judgment notwithstanding the verdict..

On April 26, 1949, the court overruled the motion for new trial and for judgment notwithstanding the verdict. On the same date defendant appellee’s motion to. dismiss was overruled- On May 12, 1949, notice, of appeal was filed, together with praecipe to the clerk., On May 24, 1949, the transcript and original papers were filed in this court. ■■■.■ -

• The appeal is based on the errors apparent upon, the face of the record. There is no bill of exceptions of the proceedings had in the cause in. the Municipal Court.

The defendant appellant assign's: error in the following-particulars :

1. The court lacked jurisdiction.

(A) Declaratory judgments are not within the jurisdiction of the Municipal Court..

(B) Prior action pending.

,2. Errors of law.

: (A) Verdict and. judgment of the court below are contrary to law. ■ ■ ,-

(B) Overruling to motion to dismiss.

,(C) Lack of. jurisdiction.....

3. For other errors apparent on the face of the record.

(A) Failure to grant judgment notwithstanding the verdict. -.

(B) Failure-to rule on the-motion to dismiss-.

(C) Failure to rule- on the demurrer.

(D) Defendant appellant deprived of right to jury trial.

(E) Improper party defendant.

These assignments of error will be considered-in the order above set forth.

1(A). Under this assignment of error, the defendant appellant makes the general contention that declaratory judgments are not within the jurisdiction of the Municipal Court of Cleveland. It admits, however, that under the provisions of Section 12102-1, General Code, jurisdiction is conferred upon courts of record within their respective jurisdictions to declaré rights, status and other legal. relations whether further relief is or could be claimed; and further admits that the Municipal Court of Cleveland is a court of record, and concludes that a court of record may grant a declaratory judgment if it stays within its jurisdiction and that the jurisdiction to which he refers relates to the subject matter. ■ ' ' '

In the case of Soul, Rear., v. Lockhart, 119 Ohio St., 393, 164 N. E., 419, the Supreme Court held that the only original, civil jurisdiction conferred upon' the Cleveland Municipal Court is that found in Section 1579-6, General Code, and that the sections following are merely supplementary or ancilliary thereto, having for their object the conservation and enforcement - of its original jurisdiction conferred- by the foregoing section.

Under the provisions of paragraph three of Section 1579-6, Genera] Code, original civil jurisdiction within the limits of the City of Cleveland is conferred on the Municipal Court in all actions on contract, express or implied, in law or in fact, when the amount claimed by the plaintiff does not exceed $5,000.

The claim pleaded by the bank, for which it seeks a declaratory judgment, is one of the class recognized as coming within the money counts of general assumpsit, under the specific designation of either indebitatus assumpsit or indebitatus counts, for money paid to the defendant’s use.

The following comment is made with reference to this class of cases, in 4 American Jurisprudence, 499, 500, Assumpsit, Section 10:

“As shown above, assumpsit will lie for the breach of an express contract or one implied in fact; but there is another large class of obligations, to enforce which the action of general assumpsit is a well-established remedy. The priniciple upon which this latter class of obligations rests is equitable in its nature, and was, like most other equitable principles derived from the civil law. This obligation was, under the civil law, designated ‘quasi contractus.’ Stated as a civil-law principle, it was an obligation similar in character to that of a contract, but which arose not from an agreement of parties, but from some relation between them or from a voluntary act of one of them, or, stated in other language, an obligation springing from voluntary and lawful acts of parties in the absence of any agreement. In quasi contracts, the obligation arises not from consent, as in the case of contracts, but from the law or natural equity. The class of obligations now under consideration, and which are treated in works on contracts as contracts implied in law, or quasi contracts, is recognized and enforced in common law courts by means of a general assumpsit. The liability exists from an implication of law that arises from the facts and circumstances independent of agreement or presumed intention.”

Under the text on page 500 is a citation supporting the principles announced, as follows:

“ ‘The mythical creation of the law, called a quasi contract, was adopted for the purpose of enforcing a legal duty by an action in form ex contractu, but in reality in the nature of a bill in equity.’ Schaeffer v. Miller, 41 Mont., 417, 109 P., 970, 137 Am. St. Rep., 746.”

As the Municipal Court has jurisdiction in all actions on contracts “implied in law,” it has jurisdiction to render judgments to declare the rights, status and other legal relations of the parties to such contracts.

Subdivision (A) of this assignment is therefore without merit.

1(B). Under this subdivision of assignment number one the defendant appellant contends that by reason of the pendency of another action in the Municipal Court between the defendant appellant and the bank, involving the same subject matter, the Municipal Court was without jurisdiction or power to render a declaratory judgment in the instant action.

As there is no bill of exceptions of the proceedings had by the trial court in the instant case, it does not affirmatively appear that there was another action in the Municipal Court pending between the parties, as contended by the defendant appellant. In reviewing a case a court may consider such errors only as affirmatively appear of record, and as the claimed error does not affirmatively appear of record, the court will not consider it.

(2). Errors of law.

(A). Under this subdivision, the defendant appellant discusses the question whether the bank may be relieved from liability for its failure to stop payment, on the check, after notice had, by virtue of its rules and regulations.

As we are basing our opinion and decision in this case solely on the proposition that the bank has pleaded, and, by virtue of the presumptions attending a judgment in its favor in the trial court, has proved that .it has a counterclaim against defendant in the amount of the check paid by it after receipt of notice to stop payment, by way of a cause of action in general assumpsit under the money counts for money paid by it for the defendant’s use, it is unnecessary to discuss this subdivision of the second assignment of error.

2(B). Under this subdivision of the second assignment of error, the defendant appellant charges error of the court in overruling the motion to dismiss.

'The motion to dismiss was based upon the ground that -the Municipal Court did not have jurisdiction of the subject matter of the action for declaratory judgment, and upon the further ground that another action was: pending between the parties in the Municipal Court, involving the same subject matter.

We have heretofore held that the Municipal Court had1 jurisdiction of the action for declaratory judgment, and we have also heretofore held that we cannot consider the pendency of any other action in the Municipal Court between' the parties, as it does not appear in the record before us for review that any such action was pending.

For these reasons this subdivision of assignment number two is without merit.

2(C). Under this subdivision the defendant appellant contends the Municipal Court did not have jurisdiction of the action.

' We have already discussed this question and held that the Municipal Court had jurisdiction, so it is unnecessary to further discuss this assignment.

3. For other errors apparent on the face of the record.

•3(A). Under this subdivision, the defendant appellant again raises a question of the jurisdiction of the court, and also claims error of the court in not granting defendant appellant judgment notwithstanding the verdict of the Municipal Court.

We have heretofore held that the court had jurisdiction and that the bank had proved a counterclaim to the claim of the defendant appellee. It follows that the court properly overruled the motion to dismiss.

3(B). Under this subdivision of this assignment the defendant appellant charges error in that the motion to dismiss was not ruled on until after judgment had been rendered and after motion for new trial was filed.

The motion to dismiss was wholly without merit and the fact that it was not ruled on until after judgment and after motion for new trial was filed, was not in any way prejudicial to the defendant appellant.

3(C). Under this subdivision, defendant appellant charges error in the failure of the court to rule on the demurrer referred to in the statement of facts, until six days after the filing of the notice of appeal.

The demurrer was wholly without merit and the failure to rule on the same, as stated, was not in any way prejudicial to the defendant appellant.

3(D). Under this subdivision the defendant appellant charges error in that the trial court deprived- it of -its right to have his cause tried to a jury.

Under the statutes creating the Municipal Court of Cleveland and describing its functions and procedure, a jury trial may be had only upon demand made in -the manner prescribed in the statutes.

While this case was purely a civil action at law and the defendant appellant was entitled to trial by jury if he demanded such trial, the record does not show that he made such demand in conformity with the statute. Not having made such a demand, there is no basis for his claim of error in the respect mentioned.

3(E). Under this subdivision■ the defendant appellant charges error in the bank making defendant appellee a party defendant.

The defendant appellee was a proper party defendant, as the bank, in order to establish the validity of its counterclaim concerning which it asked the declaration, had to establish that it paid the check of $561.46 in question, to a creditor of the defendant appellant who had a valid and subsisting claim against defendant appellant, which was then due and payable, to show that such payment was made for the use of the defendant appellant.

The general rule applicable to the substantive rights of the parties in the instant case, are as follows:

In general, if a creditor has received payment of his claim from someone other than the debtor, that other person can not recover the payment made to the credr itor in the absence of some fraud or misrepresentation by the creditor. More specifically a bank which has by mistake paid a check on which payment has been stopped, cannot recover if the holder of the check acquired it in good faith and for valuer\ Restatement of Law of Restitution, Sections 14 and\3^

With reference to the bank’s right to charge the defendant appellant’s account, we quote from Section 162, Restatement of Law of Restitution, which states:

“Where property of one person is used in discharging an obligation owed by another or a lien upon the property of another, under such circumstances that the other would be unjustly enriched by the retention of the benefit thus conferred, the former is entitled to be subrogated to the position of the obligee or lien-holder.”

That section further states that a plaintiff asking for subrogation is not “officious,” e., a volunteer, where the payment is made under mistake.

The general rule applicable to mistakes of this character is stated in Restatement of Law of Restitution, Section 59, as follows:

“A person who has conferred a benefit upon another by mistake is not precluded from maintaining an action for restitution by the fact that the mistake was due to his lack of care.”

While Section 162 of Restatement of Law of Restitution refers to equitable actions for restitution, the principles enunciated apply with full force to actions based upon quasi contracts, for, as hereinbefore stated, the mythical creation of the law, called a quasi contract was adopted for the purpose of enforcing a legal duty by an action in form ex contractu, but in reality in the nature of a bill in equity.

The justice of the above principles is apparent. They correct the mistake if the holder of the check has been guilty of fraud in obtaining payment, and prevent unjust enrichment of the maker if he stops payment.

Finding no error prejudicial to the defendant appellant in any of the particulars assigned, the judgment of the Municipal Court is affirmed at the costs of the defendant appellant.

Judgment affirmed.

Middleton and Doyle, JJ., concur.

Guernsey, P. J., and Middleton, J., of the Third Appellate District, and Doyle, J., of the Ninth Appellate District, sitting by designation in the Eighth Appellate District.


author: FeSs, J.

text:
    DeVille, Appellant, v. DeVille, Appellee.
    (No. 4360
    Decided May 23, 1949.)

      Mr. Barry B. Kirtland, for appellant.

      Mr. August M. Streicher, for appellee.
   FeSs, J.

This is an appeal on questions of law from an order of the Juvenile Court changing custody of three minor children from' their mother to their father.

The mother, as plaintiff, obtained a divorce from the father in 1943 and sin1 whs awarded custody of the three children. As a pai’Fdf the decree, the case was certified to the Juvenile Court for further proceedings as to the children. On Septeriiber 11, 1948, the defendant filed an application for custody of the three children — Virginia, then 17,' Robert, 14, and Diane, 11 years of age. In his application, defendant stated that he would return to Japánín'the service of the United States government on September 29, 1948, and that the three children had expressed a desire to be under the custody of the defendant. On September 22, 1948, the application was referred to a réferee of the Juvenile Court and on motion the father was enjoined from removing the children from the jurisdiction of the court until the matter of custody was decided. Testimony was taken before the referee, the record ‘of which consisted of 199 pages. The hearing was fraught with tears, scandal and bitterness bordering on vituperation. The proceedings before the referee disclose a lack of that judicial composure and restraint comporting with the dignity which should attend a judicial hearing.

In the bill of exceptions, at the conclusion of the hearing before the referee, the following is recited:

“Thereupon all of the evidence was submitted to the-court, whereupon the court, being fully advised upon the matters submitted, found the issues joined against the plaintiff and in favor of the defendant, as more fully set forth in the record of this cause and the following memorandum by the court,' specifically made a- part of the record: ’ ’

In the memorandum the court found that, the children having chosen to live with their father, the mother had failed to prove the father unfit to have their custody, and, therefore, granted his application. The memorandum states also that, because the father was required to leave within 24 hours, custody should be transferred to the father forthwith. It was further ordered that, if such transfer be circumvented by motion for new trial or appeal, the mother should be charged with the cost of transporting the children with a suitable companion, such cost to be covered by a supersedeas bond in the sum of $5,000. Bond for appeal was set at $300.

The journal entry awarding custody of the children to the father and fixing the bonds was not entered until October 6, 1948. No certificate by the referee of his findings and no recommendation as to the order of the court appear in the record.

The record discloses further that no notice was given the parties of the presentation of any findings prior to the entry of the order of the court. These discrepancies are assigned as error, together with a number of other assignments.

Section 1639-21, General Code, provides for the appointment of referees ivith the usual poiver of masters in chancery cases; that in each case submitted to them they shall hear the testimony and certify to the judge their findings upon the case, together with their recommendation as to the judgment or order to be made in the case; and that “the court, after notice to the parties in the case of the presentation of such findings and recommendation, may make the order recommended by the referee, or any other order in the judgment of the court required by the findings of the referee, or may hear additional testimony, or may set aside said findings and hear the case anew. ’ ’

In enacting Section 1639-21, General Code, the General Assembly may: have overlooked the distinction between referees and master commissioners made in Sections 11475 to 11486 and 11487 to 11492, Genera! Code. Prior to 1880 it was provided that a reference should be “according to the usages of courts of chancery” and the proceeding was according to rules in equity practice relating to masters. These old rules were cumbersome and technical and in 1880 the quoted phrase was deleted and the words, “appointed by the court for that purpose,” were inserted, and since that time proceedings before a master, instead of being according to the uses of chancery, have been regulated by Sections 11487 to 11492.

In employing the phrase, “who shall have the usual power of masters in chancery cases,” we do not believe that the General Assembly intended to revert to the ancient powers of masters in chancery but rather intended to confer upon Juvenile Court referees the .powers of master commissioners as defined in Sections 11490 and 11491, General Code.

Section 11490 provides that upon a reference a master shall take the testimony in writing, report it to the court, and therewith his conclusions on the law and facts involved in the issues, which report may be excepted to by the parties, and confirmed, modified or set aside by the court. Section 11491 empowers masters.to summon and enforce the attendance of witnesses and to grant adjournments, the same as the court. Sections 1685 and 1686 require motions affecting the confirmation, modification or vacation of a report of a referee or master to be determined within 30 days after submission, but this provision has been held to be directory. James v. West, Admr., 67 Ohio St., 28, 65 N. E., 156.

It will be noted that a commissioner makes a recommendation to the court for confirmation, modification or vacation. On the other hand, referees conduct a trial as by the court and must separately state the facts found and conclusions of law. Their decisions must be given, and may be excepted to and reviewed, as in a trial by the court. Their report upon the whole issue shall stand as the decision of the court, and judgment may be entered thereon as if the court had tried the action. Sections 11478 and 11479, General Code. But a referee does not reduce the testimony to writing unless directed to do so by the court. Section 11481, General Code. However, when an action is referred to a master commissioner, he must reduce the testimony. to' writing and report the same to the court with his conclusions on the law and facts. A case is referred to a referee for trial and to a master commissioner to take testimony. The reference to a master commissioner is ancillary and his report is in aid of the court. See Brooks v. Scobie, 1 C. C., 348, 1 C. D., 194; Cairns v. Hedges, 2 C. C., 103, 1 C. D., 387; James v. West, 67 Ohio St., 28, 65 N. E., 156.

It will be noted that Section 1689-21, General Code, provides that the referee-shall -hear the testimony-and certify his'findings to the-court, together with1, his mcommendation, which is quite similar to the functions of a master commissioner. We, therefore, hold that the principles applying to master commissioners should likewise apply to Juvenile Court referees. ’

•The motion'to change the-custody of the children-involved a fispecial proceeding” and as to the parents affected a substantial right — the' custody of the children. In re Anteau, 67 Ohio App., 117, 36 N. E. (2d); 47. The parties were entitled to have the referee certify his findings and recommendation to the court in writing. They were likewise entitled to notice "in writing of the presentation of such findings and recommendation and to the right-to file exceptions thereto and to a hearing by the court thereon prior to the entry by tbe court of any order upon tbe motion. In Mennel Milling Co. v. Slosser, 140 Ohio St., 445, 45 N. E. (2d), 306, tbe Supreme Court affirmed a judgment of this court bolding that a court is required to consider exceptions and motions duly filed with it for the purpose of objecting to the report of a referee.- This principle applies with even greater force to the report of a referee having the powers of a master commissioner. Cf. In re Hobson (Ohio App.), 62 N. E. (2d), 510.

The mother, having been originally awarded the custody of the children, was entitled to retain sueh custody until a lawful order duly entered by journal entry was made changing such custody. From an order adverse to her right to retain custody, she had a right to. appeal to this court. But, she having taken an appeal on questions of law only, the trial court’s order stands until reversed and plaintiff might be subject to an order of that court directing her to deliver the children to the defendant. In order to avoid that contingency, she might be required to give a supersedeas bond.

The conditions of a supersedeas bond are to ■•the effect that a party appealing shall abide by-and perform the order and judgment of the appellate court and pay all money, costs and damages which may be- re-required of or awarded against him upon the final determination of the appeal and are such other ¡conditions as the court may provide. Section 12228-14, General Code. We do not believe that the italicized phrase should be interpreted to permit a trial court to prescribe any conditions which it may feel should be imposed as a deterrent to an appeal. The other conditions referred to in Section 12223-14, General Code, are such as might reasonably be deemed necessary and appropriate to secure and enforce compliance witfi a judgment or other order of the court. In the instant case, plaintiff, by the order of the court as finally entered, lost her right to retain custody of her children, but no'monetary consideration involving damages to the defendant was involved. It may have been imperative that the defendant return to Japan immediately, but the inconvenience and expense which may have been encountered in having the children travel alone to Japan do not warrant imposing a condition on the plaintiff that she pay such expense, including that of a suitable companion. Upon any further proceeding as to the fitness of the father to have custody of the children, as an element of fitness, consideration should be given to determining whether the father is able to support the children and the expense of their travel to Japan.. This may or may not he a moot question, since we are advised in the argument that the day following the announcement of the court’s decision the father and children departed for Japan.

Since the proper procedural steps were not taken below to permit this court to pass upon other errors assigned, the order of the court is reversed and the cause remanded for further proceedings, including the certifying by the referee of his findings and recommendation, the notice to the parties of the presentation thereof, and the hearings of exceptions, if any, to such proceedings. Mennel Milling Co. v. Slosser, unreported, Court of Appeals for the Sixth Appellate District.

The reversal, as of course, vacates the order below, including that portion fixing the bonds.

Judgment reversed and cause remanded.

■Conn and Carpenter, JJ., concur.


author: McClintock, J.

text:
    Asher et al., Appellants, v. Asher, Appellee.
    (No. 775
    Decided May 12, 1948.)

      Mr. John A. Schlupp and Mr. Robert R. Stephenson, for appellants. , '

      Messrs. FisherSmith & Renner, for appellee.
   McClintock, J.

This is an action for a declaratory judgment commenced in the Court of Common Pleas, in which the living descendants of one Henry C. Asher were- plaintiffs and Nettie Asher, widow of George W. Asher, deceased, was defendant. The court was requested to determine whether certain real estate owned by George W. Asher, who died intestate on March 26, 1930,-passed as ancestral or nonancestral real estate. The case was tried in the court below upon certain stipulations and exhibits and comes into this court upon appeal on questions of law.

The record shows the following facts: Henry C. Asher died intestate January 26, 1901, survived by his wife, Amanda, and eight children. At the time of his death he owned about 1,500 acres of land in Tuscarawas and Guernsey counties, as well as certain lots in the village of Newcomerstown. No administration was.had of his estate.

On January 13, 1902, Amanda Asher, the widow of Henry C. Asher, and his eight children and their spouses, if any, entered into a certain written agreement which, in substance, provided that the widow and children were desirous of executing a settlement, compromise, adjustment and partition of their several interests in the real estate, amicably among themselves. The agreement provided for three appraisers who were to appraise the real estate belonging to Henry C. Asher. Each tract was to be separately appraised, and Amanda Asher, in lieu of her dower, agreed to accept yearly, from each of the children, during her natural life the sum of $100 and agreed to quitclaim her dower interest in the real estate to be sold.

It was provided also that Araphael B. Asher was to take the land described as tract No. 1 at the value to be returned by the appraisers; that in as much as Araphael Asher had at his own expense and labor improved the land by erecting buildings and otherwise, he was.to have the benefit, of such improvements; and that the land was to be appraised without considering such improvements which were to be appraised separately.

George W. Asher, under such agreement, agreed to take the tract known as tract No. 6, containing in all 273.5 acres, at the appraised value. Certain other héirs agreed to take certain tracts at the appraised-value. In detail the children took tracts that were appraised as follows:

George W. Asher $ 5,740.00

Stewart Asher 7,950.00

Emma Morris 2,700.00

John H. Asher 6,000.00

Amanda Asher 2,700.00

Araphael B. Asher 6,441.00

Elza P. Asher 2,610.00

Mary B. Hursey 1,496.00

Total $35,637.00

Also, certain tracts were sold by the children and the widow of Henry C. Asher, deceased, to other parties, as follows:

Newcomerstown Water Company $1,000.00

Lloyd Murphy 3,200.00

Guernsey County lands 3,900.00

Deeds were thereafter executed to the various parties, signed by all the heirs and Amanda Asher, the widow of Henry Asher. Each deed recited as the consideration the appraised value and contained a clause that the grantee agreed to pay $100 per year to Amanda Asher during her lifetime.

Thereafter, George W. Asher sold 50 acres from the tract he purchased, leaving 223.5 acres, which is the real estate in question.

George W. Asher died intestate on March 26, 1930, leaving his widow, Nettie Asher, and no children, and the rights of the parties to this action must be determined by the laws of descent and distribution in effect at the time of the death of George W.’ Asher, which were Sections 8573 and 8574, General Code.

It was agreed by counsel that one-eighth of the real estate owned by George W. Asher at the time of his death passed by descent and was ancestral property, and the court below so found it to be ancestral property. As to the seven-eighths of such real estate owned by George W. Asher at the time of his death, the court below held that it came to George W. Asher by purchase and was nonancestral property and that Nettie Asher, the widow of George W. Asher, took a life estate in one-eighth of such real estate and a fee simple title to the remaining seven-eighths.

The plaintiffs, appellants, allege.four assignments of error committed by the court below:

First: That the trial court erred in its finding and judgment as to the total value of the lands of the ancestor.

Second: That the trial court erred in its finding and judgment that the value of George W. Asher’s interest in the ancestral realty was limited to one-eighth of the value of such parcels as were actually taken by the children of Henry C. Asher.

Third: That the trial court erred in its finding and judgment that the collateral agreement as to dower interest operated so as to effect purchase rather than inheritance.

Fourth: That the judgment of the trial court is contrary to the law applicable to the undisputed evidence.

As to the first assignment of error, this court has examined in detail the facts in this case. It is claimed by plaintiffs that the proper value to be placed on the property of Araphael B. Asher is $9,141, instead of $6,441, in as much as the actual appraisement, including the improvements, was $9,141. For the sake of argument, let us concede this to be true. Then the total value of the real estate taken by the children and heirs of Henry Asher would be $38,337 and one--eighth of that amount would be approximately $4,800, which would be less than the appraised value of the propert-v taken bv George W. Asher, which was $5,740. *

It is also claimed by plaintiffs that the selling price of the land to third parties should be taken into consideration and added to this total. To this we cannot agree, as the real test is the value of the portions taken by the heirs under the agreement, and that if the value of the part taken by George W. Asher was greater than his one-eighth interest in the total, that the excess of his one-eighth interest in such tract would be real estate acquired by purchase and passed as nonancestral property. In support of this we cite the following authorities:

“Where tenants in common of land inherited by them, proceeded to make partition thereof .under the ‘act to provide for the-partition of real estate,’ and one of the parties elected to take the land under section 8 of the act, and, after obtaining a deed therefor pursuant to that section, died intestate: Held—

“1. That the title to so much of the land as came to the decedent by inheritance, remained a title in him by descent, notwithstanding the proceedings in partition; but the remaining title acquired by such proceedings was a title by purchase.

“2. That, under the ‘act regulating descents,’ so much of the estate as came to the intestate by descent, passed to his brothers and sisters of the blood of the ancestor from whom the estate came, whether they were of the whole or half-blood of the intestate; but the remaining part thereof, which came to him by purchase, passed to his brothers and sisters of the whole blood only.” Freeman v. Allen, 17 Ohio St., 527.

“1. The line of descent is not broken by partition of an estate theretofore held in common, whether the partition be made in a legal proceeding, or by the interchange of mutual releases. In either case the title of each parcener in the share set off to him in severalty remains the same as that by which his undivided interest in the land was held.

“2. Where the estate in common came by descent, devise, or deed of gift, the parcel allotted to a parcener who dies seized of the same descends according to the provisions of Section 4158, of the Revised Statutes.

‘ ‘ 3. When partition is made by mutual releases, they should be read and construed together, in the light of the circumstances attending their execution; and it is competent to show that their only purpose was to accomplish the partition, and no other consideration passed between the parties, though a pecuniary consideration be expressed in the deeds.” Carter v. Day, 59 Ohio St., 96, 51 N. E., 967.

“Where tenants in common of land devised to them make partition of same under the partition statutes of Ohio and one of the tenants in common becomes a purchaser of a portion of the common property and after obtaining a deed therefor died intestate; Held: That the title to so much of the land as came to the decedent by devise, remained a title in her by inheritance, notwithstanding the proceeding in partition; but the remaining title acquired by such proceeding was a title by purchase.” Lawson v. Townley, 90 Ohio St., 67, 106 N. E., 780.

“Five coparceners entered into an amicable partition of land descended from a common ancestor. The land was surveyed and divided into tracts of equal area but of unequal value. By arrangement of the heirs, each of them could bid for a farmhouse or homestead located upon one of the tracts, and the highest bidder was to have a quitclaim deed therefor from the other heirs. It was not agreed by nor was it within the contemplation of the heirs that this building was to be removed. After competitive bidding, one coparcener, C. H., bid $2,975 for the homestead, and received from the others a quitclaim deed therefor. This sum was equally distributed among the several coparceners. Mutual releases were executed for the other four tracts taken by the other heirs.

Held: To the extent of one-fifth of the tract selected by her, C. H. took title by descent, which upon her ■dying intestate passed under Section 8573, General Code. To the extent of the remaining title acquired by her under the amicable partition as aforesaid, she obtained the title thereto by purchase, which upon her intestacy passed under the provisions of Section 8574, General Code.” Huseman v. Fingermeyer, 106 Ohio St., 113, 139 N. E., 862.

Counsel for plaintiffs dwelt at length on the case of Lee v. Fike, 28 Ohio App., 283, 162 N. E., 682. With that decision this court is- in accord, but the ■ facts in that particular case are entirely different from the facts in the case under consideration. In the Fike case there was an interchange of mutual releases in the form of quitclaim deeds by the heirs and the real estate so deeded was of equal value. In the instant case the real estate was of unequal value.

It is claimed also by plaintiffs that George W. Asher at the time of receiving his deed did not pay any money. This is true, but the price that he agreed to pay for his farm was greater than his one-eighth interest in the land taken by the heirs and in the final settlement, by reason of the sale of lands to third parties, his share amounted to more than the price he agreed to pay for the farm.

In Ohio there is now no distinction between ancestral and nonancestral real and personal property. This-law, Section 10503-1, General Code, 114 Ohio Laws, 320, became effective January 1, 1932, and the law in effect at the time of the death of George W. Asher was Sections 8573 and 8574, General Code. Section 8573-provided that “When a person dies intestate, having title or right to any real estate or inheritance in this state, which title came to such intestate by descent, it shall descend and pass in parcenary, in default of children or their legal representatives, to the relict of the intestate for life.” Section 8574, General Code, provided that if the estate came by purchase, in default of. children or their legal representatives, it vested in the relict of the intestate.

It is therefore the opinion of this court that one-eighth of the land owned by George W. Asher came to him by descent, and upon his death his widow, Nettie Asher, took a life estate and that seven-eighths of' such real estate came to George W. Ashe]* by purchase, and his widow, Nettie Asher, takes a fee simple title.

This was the same finding made by the court below' and being of the opinion that none of the assignments-of error claimed by plaintiffs is well taken, the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed,..

Putnam, P. J., and Montgomery, J., concur.


author: By the Court.

text:
    Stoffel, Appellant, v. City of Cincinnati, Appellee. (Two cases.)
    (Nos. 7160 and 7161
    Decided January 23, 1950.)

      Mr. B. E. Simmonds, Jr., and Mr. Clarence A. ■Schnieders, for appellants.

      Mr. Henry M. Bruestle, Mr. J. B. Granse, Jr., and Mr. Wallace M. Power, for appellee.
   By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Hamilton County in favor of defendant, entered at the close of the plaintiff’s evidence on motion of defendant. The court found that in such evidence it appeared as a matter of law that the plaintiff was guilty of contributory negligence.

Prom the record it appears that the plaintiff, a woman 57 years of age and wearing bifocal glasses, in passing along a sidewalk in the city of Cincinnati, which •she had never walked over before or seen, slipped her toe into a crevice created by one slab of the sidewalk having been pried up by the roots of an adjacent tree. She fell and broke her arm. The difference in elevation of the slabs was apparent to anyone examining the same. However, the plaintiff testified she saw no defect in the sidewalk before she fell.

The trial court, by its judgment, held that as a matter of law she should have seen the defect and, hence, was guilty of contributory negligence as a matter of law in that she did not see it and avoid injury. Such a •holding means simply that a pedestrian moving over a strange sidewalk is required to keep her eyes upon the sidewalk at all times. • If such is the law, then no pedestrian could ever recover for injuries caused by apparent defects in a sidewalk, for, if he fell in the daylight,, he would be held at fault, because he did not observe the obvious, and if he fell in the dark he would be held guilty of contributory negligence in proceeding when he could not see.

It is perfectly apparent that pedestrians are required to use. their senses while proceeding along a sidewalk for other lawful purposes than a minute inspection of that- upon which they are about to tread and have a right to presume'that a public way will not contain such traps as existed in the instant case.

The cases of Highway Construction Co. v. Sorna, 122 Ohio St., 258, 171 N. E., 312, and Winkler v. City of Columbus, 149 Ohio St., 39, 77 N. E. (2d), 461, are easily distinguished by the facts involved. In the Winkler case, the plaintiff testified that she saw the defect in the sidewalk, saw it was ‘ ‘ raised up ’ ’ and tried to step over it.

In the Sorna case, supra, it is stated at page 264:

“Prom an examination of the record, it is apparent that it was not the excavation in the street which caused Mrs. Sorna’s injury, but the crumbling of the bank, which she claims defendant had negligently failed to properly guard by boards, or by cutting steps, or by slanting back so as to protect persons desiring to use the crosswalk at that place. ' Whether under such circumstances the defendant construction company was negligent, and whether such negligence proximately caused the plaintiff’s injury, and whether she herself' contributed thereto by her own want of due care or by her failure to take an alternative way, were all questions for the jury — found'adversely to the construction company.”

The facts in the instant case have no similarity to the facts considered in the cases cited as sustaining the instructed verdict for defendant.

Certainly, the evidence of plaintiff presented a question for the jury — whether she used the care which a reasonably careful person is accustomed to use under the same or similar circumstances.

Starting with the case of Hamden Lodge v. Ohio Fuel Gas Co., 127 Ohio St., 469, 189 N. E., 246, the Supreme Court has in a host of decisions held:

“Where from the evidence reasonable minds may reach different conclusions upon any question of fact, such question of fact is for the jury. The test is not whether the trial judge would set aside a verdict on the weight of the evidence. ’ ’

See Wilkeson, Admr., v. Erskine & Son., Inc., 145 Ohio St., 218, 61 N. E. (2d), 201; Belshaw v. Agricultural Ins. Co., 150 Ohio St., 49, 80 N. E. (2d), 675; Bauer v. Cleveland Ry. Co., 141 Ohio St., 197, 47 N. E. (2d), 225; Durbin v. Humphrey Co., 133 Ohio St., 367, 14 N. E. (2d), 5; Bevan v. N. Y., C. & St. L. Rd. Co., 132 Ohio St., 245, 6 N. E. (2d), 982.

The instant case presented a question for the jury. It might justly conclude that the plaintiff had not used that care which was required. The jurors, as pedestrians, should be able to determine what care was required. The required standard lies within the area of the common knowledge which the jury is presumed to possess.

For this reason, the judgment of the trial court is reversed and the cause remanded for a new trial.

Judgment reversed.

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


author: MoClintock, J.

text:
    The State of Ohio, Appellee, v. Coran, Appellant.
    (No. 2290
    Decided May 12, 1948.)

      Mr. D. Deane McLaughlin, prosecuting attorney, for appellee.

      Mr. D. Bruce Mansfield, for appellant.
   MoClintock, J.

This was an action in which the defendant, appellant, was indicted for the crime of abortion. The indictment charges that Jack E. Coran, •on the 14th day of July 1947, used certain instruments in. and upon the body of one Jayred, a woman then •and there pregnant with child, with intent to procure the miscarriage of the said Jayred, such miscarriage not being then and there necessary to preserve her life, and not being advised by two physicians to be necessary for that purpose, in consequence whereof the said Jayred miscarried and was prematurely delivered ■of said child, contrary to the statutes in such cases made and provided and against the peace and dignity ■of the state of Ohio.

To this indictment the defendant entered a plea of not guilty. Thereafter the cause came on for hearing before a court and jury, and at the conclusion of the testimony of the state a motion was interposed by counsel for defendant to direct a verdict for the defendant on the ground that the state failed to prove the essential elements of the alleged crime, to wit:

1. The state has failed to show that the alleged abortion was not necessary to preserve life, as required by the statute.

2. The state has failed to show that instruments, as set forth in the indictment, were used by the defendant.

3. The state has failed to show by competent proof that any abortion was in fact committed.

That motion was overruled by the court below. Thereupon the defendant rested, without the introduction of any testimony, and counsel for defendant renewed the motion interposed at the conclusion of the state’s case, which motion was overruled by the court below.

The jury found the defendant guilty as charged in the indictment. Motion for new trial was filed by the defendant and overruled.

The defendant appealed to this court on questions of law, and for his assignment of errors claims:

1. The trial court erred in not sustaining defendant’s motion for a directed verdict on the ground that the state failed to prove the statutory elements of the crime charged, to wit: That the miscarriage was not necessary to preserve the life of the one upon whom it allegedly had been performed.

2. The trial court erred in not granting the defendant a new trial for the same claimed error.

These assignments of error will be considered together, as only one question of law is involved.

To sustain a conviction for the crime of abortion it is-necessary for the state to prove beyond the existence of a-reasonable doubt five essential elements: (1) Using an instrument or other means; (2) with intent to procure miscarriage; (3) actual miscarriage; (4)- it not being necessary to preserve life; or (5) not having been advised by two physicians.

Counsel for defendant makes no claim that the state did not so prove these essential elements, except the one that required proof that the miscarriage was not necessary to preserve the life of Janice Lee Jayred.

It is a well settled. principle of law that proof may be either direct or circumstantial. In this particular case there was no direct proof that the miscarriage was not necessary to preserve the life of Janice Lee Jayred.'

“It is incumbent on the state to prove the necessary negative averment that the miscarriage was not necessary for the purpose of saving the woman’s life. And there must be adequate proof of this negative element. But it need not be proven by positive testimony; evidence which tends to show the condition of the woman at the time of and before the alleged miscarriage is sufficient. The contrary is true as to the other exception in the statute — that the procurement of a miscarriage was not ‘advised by two physicians to be necessary. ’ It is for the accused to show that he is entitled to the benefit of this exception.” 1 Ohio Jurisprudence, 146, Section 12.

“While it is incumbent on the state in order to convict in an indictment under General Code 12412, for procuring an abortion, to prove that the same was not necessary in order to preserve the life of the mother, the state is not required to prove that such act was not advised by two physicians to be necessary for such purpose, as this latter negative averment may be easily shown by the defendant, while it would be very difficult, if not impossible, to be established by the State.” Bridge v. State, 20 C. C. (N. S.), 231, 35 C. D., 856.

• “The statute to which reference has been made authorized a conviction ‘ unless such miscarriage is necessary to preserve her life, or is advised by two physicians to be necessary for that purpose, if the woman either miscarries or dies in consequence thereof.’

“Of course this provision which has just been quoted may be sustained by a,ny competent evidence, and with a view to ascertaining whether it is sustained, we have very carefully examined the evidence and find abundance of evidence warranting the jury in so concluding. Indeed, there is nothing in the evidence relative to the condition of Minnie Parrish at the time of the operation that in any wise tends to show any necessity for the performance of the operation in order to preserve her life.” Bridge v. State, supra, at page 232.

In the case of State v. Holden, 20 N. P. (N. S.), 200, 207, 28 O. D. (N. P.), 123, we find the following language by the court, to wit: i

“It is reasonable to infer from the failure of defendant to inform the girl that the operation was necessary to save her life, and from her age and not being married, from the fact that her parents were not aware of her condition, from the fact that she was working up to the time of the operation, that the operation was unnecessary to save her life and that two physicians had not advised that it was necessary; that the abortion was not necessary to save life.”

It therefore became the duty of this court to read the entire record in this case, which it did, to determine whether there was sufficient evidence to prove beyond the exisence of a reasonable doubt that the operation was not necessary to preserve the life of Jayred.

We find from an examination of this record that Jayred was 21 years of age, unmarried, and was a student in a senior college class. The girl testified positively that no doctors ever advised her to have such operation performed. She did not tell her mother about her condition, but did convey the information to her father. On the day of the abortion she traveled by way of bus from Madison to Kent and came in an auto with one Foy to Canton, where the operation was performed by the defendant, who was not a doctor, but an ordinary layman who worked at the Republic Steel Company, and he, before trial, signed a written statement for the police, admitting that he had performed the abortion, but at no time did he claim that it was necessary to perform such operation to save the life of Jayred.

Foy, in the absence of Jayred, made the arrangements with the defendant for this operation, and Jayred did not, prior to the operation, have much conversation with the defendant, except that they talked mostly about his dog. After the operation was performed she went to the St. Francis Hotel and Foy stayed with her in the same room for some time. After the miscarriage, the foetus was thrown into the toilet. The next day she was suffering severe pain and a doctor, Hiram A. Bazzoli, was called. He made an examination of her and found nothing wrong with her physical condition, other than vaginal hemorrhage. In answer to the question “What did your examination consist of?” the doctor answered: “Well, the examination was a pelvic examination and no positive findings except vaginal bleeding.” The doctor called on her the next day and found her condition good.

In consideration of all these facts and circumstances this court is of the opinion that the state did prove beyond the existence of a .reasonable doubt that the miscarriage was not necessary to preserve the life of Janice Lee Jayred and for that reason, the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Putnam, P. J., and Montgomery, J., concur.