author: Hurd, J.

text:
    Cloverleaf Restaurants Inc., Appellant, v. Lenihan et al., Appellees.
    (No. 20328
    Decided December 30, 1946.)

      Messrs. Robb <& Robb and Messrs. Friebolin & Byers, for appellant.

      Mr. B. H. Schulist and Messrs. Squire, Sanders & Dempsey, for appellees.
   Hurd, J.

This is an action for injunction and relief whereby plaintiff, appellant herein, seeks to restrain defendants, appellees herein, from using the -word “Pickwick” as a trade name in connection with the restaurant and liquor business operated by them at 11633 Clifton Boulevard in the city of Cleveland. The-parties will hereafter be designated as plaintiff and defendants as they appeared in the Common Pleas Court.

While the original petition included a prayer for money damages, the single issue now presented in this court is whether the plaintiff is entitled to a permanent injunction as prayed for.

The Common Pleas Court found in favor of the defendants and the case is here on appeal on questions of law and fact.

By agreement of the parties the case is tried in this court upon the transcript of the testimony in the Common Pleas Court, the exhibits and certain stipulations.

The record-discloses that the name “Pickwick,” so far as it relates to this controversy, was first used on February 1, 1934, by Clover Coffee'Shoppes Inc., at 53-55-57-59-61 Superior Arcade, Cleveland, Ohio. ■ The president of Clover Coffee Shoppes Inc., is George J. Jacobs who- owns 86 per cent of its stock. He is also the president of the plaintiff corporation and the owner of 97 per cent of its stock. He testified that the entire environment in that restaurant (Superior Arcade) was created and evolved around the “Pickwick Papers”; that the murals on the walls all had to do with characters from the “Pickwick Papers” and the various activities of “Old Man Pickwick”; that the cost of remodeling was approximately $35,000; that a neon sign prominently displayed in front of the restaurant bore the legend “The Pickwick Restaurant”; and that the name “Pickwick” appeared in newspaper advertising for a period of about two years, on the menu cards used in the restaurant, on the napkins, on the uniforms of the waitresses and on all literature ■passed out to customers as a means of advertising the -trade name.

This restaurant which was operated as a cafeteria served from 800 to 900 persons each day for lunch and evening meals.

Clover Coffee Shoppes Inc., operated at this location from.February 1, 1934, to about February 1941, a period of approximately seven years, during which time it continued to use the trade name “Pickwick.” The lease of the Superior Arcade premises having expired and negotiations for the renewal of the lease having failed, a new lease was secured a short distance away in downtown Cleveland at 238 Superior avenue, in the name of a new corporation organized by George J. Jacobs under-the name of Cloverleaf Restaurants Inc., the plaintiff in this case.

The record shows further that the plaintiff corporation purchased the furniture, fixtures, good will and right to the use of the name “Pickwick” from Clover Coffee Shoppes Inc. ■

The minutes of a special meeting of the board of directors of Cloverleaf Restaurants Inc., held at the office of the company on January 6, 1941, are in part as follows:

“Meeting was called to order by the president who stated that he was seeking the authority of the board of directors to purchase the furniture, fixtures and equipment of the ‘Pickwick Restaurant’ unit of Clover Coffee Shoppes Inc., together with the right to use the name ‘Pickwick Restaurant’ and especially, the word ‘Pickwick.’ Whereupon Mr. Ammerman moved the' adoption of the following resolution:

“Resolved that the president be and he is hereby authorized to purchase the furniture, fixtures and equipment of ‘The Pickwick Restaurant’ unit of Clover Coffee Shoppes Inc., together with the right to use the name ‘The Pickwick Restaurant’ and especially the word ‘Pickwick’ for such price and upon such terms of credit or otherwise as the president shall deem for the best interests of the corporation.

“Said motion was seconded unanimously and carried. ’ ’

The premises now occupied by the plaintiff at 238 Superior avenue were remodeled arid the restaurant was opened on April 5,1941, at a cost of approximately $33,000. The evidence shows that the name “Pickwick” was placed in large lettering above the door of the restaurant while the work of remodeling was in process. The evidence shows also that upon completion of the remodeling a number of other signs were placed in front of plaintiff’s restaurant, all bearing the name “Pickwick” and that the plaintiff continued operations under the name “Pickwick” and has continued to do so up to the present time. The same neon sign bearing the words “The Pickwick Restaurant” which had appeared in front of the restaurant in the Superior Arcade, was removed therefrom and installed in front of the new restaurant on Superior avenue after some delay due to labor difficulties.

The record shows that considerable confusion resulted from the use of the same trade name by the respective parties. Witnesses testified that they had patronized the defendants believing that they were patronizing the plaintiff. Other evidence of confusion is disclosed by the record such as the delivery of liquor to plaintiff’s restaurant intended for the defendants. A particular delivery was made at the noon hour at a time when a religious convention was in the city, which delivery according to plaintiff’s witnesses, caused considerable embarrassment because plaintiff was catering to that clientele which did not desire to patronize a restaurant where liquor was sold. •

There is testimony concerning the delivery of ‘ ‘ cocktail mix” to plaintiff by mistake, intended for the defendants. There is considerable testimony concerning telephone calls to plaintiff intended for defendants or employees of defendants; testimony concerning credit inquiries and other inquiries by telephone, all of which required time and attention in explanations -by plaintiff. Testimony of officers and employees was intrpduced concerning patrons coming to plaintiff’s restaurant asking for liquor, saying that it was served at “your west side place, why don’t you here?” A newspaper clipping of November 1, 1944, contains an article in which operation and ownership of the Pickwick Restaurant on Superior avenue is attributed to the defendants. Following this, an article was printed by way of correction at the instance of the plaintiff. Another newspaper article is in evidence concerning a settlement made by the defendants with O. P. A. for beer and liquor overcharges in the sum of $2,447 under the name of Pickwick Restaurant all of which caused embarrassment to plaintiff, according to the testimony of its president and others: They testified in substance that after that incident a number of people said “Well, they are finally catching up with you.”

The defendants first used the name “Pickwick” on November 7, 1939, when they opened their tavern at 11633 Clifton Blvd., a distance of approximately four miles from the location of plaintiff’s restaurant on Superior avenue. This business was, first operated in a single storeroom, but some time in 1941 defendants enlarged their place of business by leasing an adjoining-storeroom. At this time defendants’ lessor changed the architectural design of the front of the building occupied by defendants. The effect was to give defendants’ place of business an appearance architecturally similar to the place of business of plaintiff. At the same time the lettering on the panel in front of and ahoyé defendants’ place of business was changed to read as follows:

“LOUNGE THE PICKWICK BAR.”

The evidence shows that the defendants sell food and liquor at -this location seven days a week and that they remain open until 2:30 in the morning.

When the defendant, Charles Lenihan, was asked how he happened to select the name “Pickwick” he answered:

“Well, I am quite familiar with it in the Boston area and the east, there is quite a few ‘Pickwicks’ up there. It is quite naturally early American to me; personally I like ‘Pickwick Ale.’ Always had it when up east. It is a Boston product. We were looking for some name that would naturally conform with the early American architecture of the design and ‘Pickwick’ more or less stuck to our fancy and we used the name ‘Pickwick.’ ”

Commencing in February 1944, the defendants ran a series of advertisements in the entertainment and amusement sections of the Cleveland daily newspapers, designating their place of business as “The Pickwick”' Clifton boulevard and W. 117th street. Some advertisements contained the words “Best of foods and liquors.”

The testimony of plaintiff’s president is to the effect that he first learned of defendants’ use of the name “Pickwick” in September 1942; that thereupon he communicated with the defendant, Charles' Lenihan, by telephone requesting him to discontinue such use, to which that defendant made an evasive answer; that thereafter he made other complaints and protests which failed of satisfactory results; that thereafter he employed counsel, in the fall of 1942, who gave formal written notice to defendants of the plaintiff’s objections; and that when these and other efforts of counsel were unsuccessful, plaintiff brought this action. The record in this case is voluminous and there are other facts of minor importance but we consider the foregoing to be the salient facts of the case.

The question before the court is whether the plaintiff is entitled to injunctive relief in a court of equity.

It is our view that the record presents certain elements of fact which, considered together, constitute a clear case of unfair competition entitling the plaintiff to the equitable relief of injunction, there being no adequate remedy at law. These elements are:

First: A distinctive trade name.

Commenting on this proposition, the record shows that “Pickwick” is a distinctive name. It was not haphazardly selected as a trade name by plaintiff but through design of the architect based upon the famous,' amusing and entertaining “Pickwick Papers” by Charles Dickens, which were first published in England in 1836, depicting contemporary London life. Undoubtedly the name “Pickwick” used in America stems'from the original publications of those papers.

Second: Priority of appropriation.

In connection with this fact, the record shows appropriation and use of the trade name by plaintiff’s predecessor in 1934, at least five years before the use thereof by defendants. We think that plaintiff’s predecessor acquired á property right by reason of prior appropriation and use and that there was a valid transfer of that right from the original corporation to the plaintiff corporation. The fact that the same person was president and principal stockholder of both seller and purchaser corporations does not weaken but, if it has any effect, strengthens the right to the use because of the personalized character of the respective corporations.

Third: A substantial investment by plaintiff and plaintiff’s predecessor in title with long and continuous use.

It is sufficient to note that the record shows a total investment in remodeling both restaurants of approximately $68,000. This fact, coupled with continuous investments in advertising the trade name and with long and continuous user, plus prior appropriation, establishes a substantial good-will value.

Fourth: Usurpation by defendants.

The record is clear that five years after the appropriation of the trade name by plaintiff’s predecessor in title the defendants commenced the use of this name. It is true that there was testimony to the effect that they copied the name from the Boston area but we think this hardly gives a right to use it in this area, in the face of prior appropriation.

Fifth: Competition in the same hind of business.

There can be no question that both parties are engaged in the business of serving food to the public by whatever name designated. The entire business of plaintiff is the serving of food and a substantial part of the business of the defendants is also serving of food. Plaintiff calls its place of business a “restaurant”; the defendants call their place of business a “tavern.” The defendants sell liquor and the plaintiff does not. The hours of business are different in the respect that the defendants remain open later at night. We think these differences are not material in respect of the principal, issue involved herein.

Sixth: Competition in the same business area.

The record shows that the parties are engaged in business in the same business region in a populous metropolitan area within four miles of each other.

Seventh: Resultant confusion in public mind.

The record shows numerous incidents of confusion in the mind of the public resulting from the dual use of this name. The newspaper items alone are sufficient to establish this fact, in addition to the' many individual other instances of mistaken identity.

The case and text authorities hold generally that in crises of unfair competition, the facts and circumstances of each case are all important. It is difficult to find any two cases precisely alike factually, but the principles of law áre well established in the numerous reported cases ,on the subject of trade-marks, trade names, unfair competition and the many text authorities treating these questions. It may be generally stated that protection will be granted by courts of equity to the owner of a trade-mark, a trade name, or other indicia adopted for the purpose of giving a distinctive name quality to a business or business product. Such insignia tend to build up business good will which is a most valuable asset in any business enterprise. While competition 'may he unlimited in respect to prices, wares and merchandise, the law does not permit the palming off by one person of his goods as the goods and wares of another person by imitative devices, or designs of any kind which have a tendency to deceive and mislead the public. These and similar doctrines have their foundation in. principles of natural law, justice, business morality and integrity, without which our business and social fabric can have nó stable, and enduring quality.

These conclusions on the law and the evidence are in accord with the great weight of authority in Ohio and the United States. The law in Ohio and elsewhere has been so well settled that little can be gained by an extended discussion of the principles set forth in the cases and text authorities. But for support of these conclusions, see 39 Ohio Jurisprudence, 393 et seq., Section 51 et seq., under heading “Unfair Competition” and cases therein cited; Cleveland Opera Co. v. Cleveland Civic Opera Assn., 22 Ohio App., 400, 154 N. E., 352; Marshall Drug Co. v. Uberstine-Fraiberg Drug Co. (Common Pleas Court, Cuyahoga county, 1931), 28 N. P. (N. S.), 412; Hugo Stein Cloak Co. v. S. B. Stein & Son, Inc., 58 Ohio App., 377, 16 N. E. (2d), 609; 52 American Jurisprudence, 562 et seq., Section 86 et seq.; Rogers on Good Will, Trade-marks & Unfair Trading, 127, 128, 229 to 234; Nims on Unfair Competition & Trade-marks (3 Ed.), 902, 903, 904; Hopkins on Trademarks, Tradenames & Unfair Competition, 28; American Tobacco Co. v. Polacsek (C. C., So. Dist. N. Y. 1909), 170 F., 117; Baltimore Bedding Corp. v. Moses (Dist. Ct., W. D. Ky., Louisville Div., 1943), 59 U. S. P. Q., 480; Geo. E. Keith Co. v. Greenberg (N. J. Chancery Ct.), 134 N. J. Eq., 182, 34 A. (2d), 639, 60 U. S. P. Q., 149, 150; Louisville Taxicab & Transfer Co. v. Yellow Cab Transit Co. (Dist. Ct., W. D. Ky., Louisville Div., 1943), 60 U. S. P. Q., 480; Standard Oil Co. of New Mexico v. Standard Oil Co. of California (C. C. A. 10, 1932), 56 F. (2d), 973; C. E. Mumm Champagne v. Eastern Wine Corp. (C. C. A. 2, 1944), 61 U. S. P. Q., 337; Baltimore Bedding Corp. v. Moses (Maryland Court of App.), 59 U. S. P. Q., 405.

Counsel for defendants apparently do not challenge the principles of law enunciated by these authorities but argue their inapplicability to the facts of the instant case. As previously indicated the evidence as shown by the record appears to us to be so overwhelmingly in favor of plaintiff’s contention as to require no further discussion upon this point.

The second defense relied upon appears to be that of laches. In support of this argument, defendants cite and quote from the case of Witt v. McLaren Products Co., 25 N. P. (N. S.), 155. An examination of the facts in that case discloses that the parties were engaged in the manufacture of goods of the same class in states widely separated, who acted independently of each other and in good faith used the same trade-mark in building up a trade in the respective territories. The court stated in substance that long delay in commencing suit for infringement of the trade-mark in such a situation, with knowledge of such infringement and great expenditure constituted laches. We find no analogy between the facts of that case and those of the instant case.

From the record in this case it appears that reasonable diligence was exercised as soon as the usurpation was discovered by the plaintiff. This was after'the defendants had enlarged their business and the architectural design of their business had been changed and the name “Pickwick” prominently displayed. From the record it appears that the president of plaintiff corporation,. acting at first independently and then through counsel, exhibited a certain degree of reasonableness and courtesy in order to induce defendants to cease the use of the name without suit. It appears that when all reasonable efforts failed that suit was brought. This is not laches.

Mere delay in filing suit is not a defense, especially where the parties are engaged in discussions looking to a settlement without suit. The record shows no acquiescence by plaintiff which would defeat its rights. For authority on this point see the cases of: Menendez v. Holt, 128 U. S., 514, 32 L. Ed., 526, 9 S. Ct., 143; Ansehl v. Williams (C. C. A. 8, 1920), 267 F., 9, 14; Matzger v. Vinikow (C. C. A. 9, 1927), 17 F. (2d), 581, 583, cited in plaintiff’s brief. See, also, Nims on Unfair Competition & Trade-marks, 1017 et seq., Section 409; 39 Ohio Jurisprudence, 425 et seq., Sections 90, 91, 92; 52 American Jurisprudence, 633 et seq., Sections 156, 157.

Holding these views it follows that a decree for injunction should be allowed as prayed for.

Decree for plaintiff, enjoining the defendants from the use of the word “Pickwick” as a trade name.

Decree for plaintiff.

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


source: Caselaw Access Project

author: Hornbeck, P. J.

license: Public Domain

text:
    Harlor, Appellee, v. Harlor, Appellant.
    (No. 3722
    Decided January 22, 1946.)

      Mr. Victor A. Ketcham, Jr., for appellee.

      Messrs. Coughlin, Ogier <& Lloyd, for appellant.
   Hornbeck, P. J.

Two errors are assigned:

1. The Common Pleas Court, Division of Domestic Relations, erred in remanding jurisdiction of the motion for child support, when the case had prior thereto, been certified to the Juvenile Court under Section 8034-1, General Code.

2. The Common Pleas Court, Division of Domestic Relations, erred in exercising its jurisdiction when the jurisdiction of the Common Pleas Court had ceased by virtue of Section 8034-1, General Code.

There is under the Code differentiation in Franklin county between the regular branch of the Common. Pleas Court and the Division of Domestic Relations of that court. In such eounty, by Section 1532, General Code, the judge of the Common Pleas Court, Division of Domestic Relations, is clothed with all the jurisdiction vested in juvenile courts. In some counties, either the judge of the regular branch of the Common Pleas Court or the judge of the Probate Court is designated by entry as the judge of the Juvenile Court. Section 1532, General Code, after fixing the term of the judge of the Division of Domestic Relations, Common Pleas Court, Franklin County, provides:

“Such judge and successors shall, however, be elected and designated as a judge of the Court of Common Pleas, Division of Domestic Relations, and all the powers provided for in Title 4, Chapter 8, of the General Code [Section 1639-1 et seq.] or elsewhere in said Code, relating to juvenile, courts shall be exercised in Franklin county by such judge of said Court of Common Pleas, and on and after the beginning of the term for which such judge is elected, there shall be assigned to said judge and successors, elected or appointed in pursuance of this act, all cases under the Juvenile Court Act, all bastardy cases over which the Juvenile Court of Franklin county now has jurisdiction and all divorce and alimony cases in said county.”

The entry in this case is signed, “Rose, Judge.” We take judicial notice of the fact that Judge Rose is, under Section 1532, General Code, a judge of the Court of Common Pleas, Division of Domestic Relations, and that by virtue of such section all powers provided for in Chapter 8, Title IV of the General Code, the Juvenile Court Code, relating to the Juvenile Court, are exercised in Franklin county by such judge. So it is evident that the order here was made by the one judge in the county clothed with the authority of a Juvenile judge. The only contradiction of this fact would be the heading of the entry which does not carry the further designation,- “Juvenile Branch.” That heading is not controlling of the import of the subject matter of the entry.

It thus fairly appears that the judge who made the order in this case was the judge in Franklin county authorized to make the order, and that it is valid.

The effect of Section 8034-1, General Code, is to take from a judge of the Common Pleas Court, regular branch, further jurisdiction to consider a case which he has certified for further proceedings to the Court of Domestic Relations, Juvenile Branch.

We are satisfied that the order challenged by this appeal has validity and that even upon remand the trial judge could, if it is the fact as no doubt it is, add the term “Judge of the Common Pleas Court, Division of Domestic Relations, Juvenile Branch.” We assume, as we must on appeal, that the order was properly and judicially entered. The judgment is affirmed.

Judgment affirmed.

Wiseman and Miller, JJ., concur.


author: By the Court.

text:
    Kelsey, Appellant, v. Wagner, Supt. of Building & Loan Assns., et al., Appellees.
    (No. 1907
    Decided January 23, 1947.)

      Messrs. Harshman & Young, Mr. Mason Douglass, Messrs. Morgan, Powers & Cooper, Mr. Gilbert Bettman, Jr., and Messrs. Magrish & Magrish, for appellant.

      Mr. Hugh S. Jenkins, attorney general, and Mr. Philip R. Becker, for appellees.
   By the Court.

This is an appeal on questions of law from a judgment dismissing plaintiff’s second amended petition after the trial judge had sustained defendants’ demurrer to plaintiff’s second amended petition and plaintiff elected to plead no further. The plaintiff’s second amended petition consists of four causes of action.

There are four grounds for the demurrer each directed to all causes of action of the second amended petition. They are:

1. Plaintiff’s want of'capacity to sue.

2. The court has no jurisdiction of the persons of the defendants.

3. The court has no jurisdiction of the subject matter of the action.

4. The second amended petition does not state facts which show a cause of action.

The trial judge sustained all branches of the demurrer to each cause of action of the second amended petition. Ten errors are assigned, each of which is argued at length. Counsel have provided very extensive briefs and have discussed every legal aspect of the case brought on to the record by the assignments of error. We are also provided with the opinion of Judge Martin in the trial court, which recites all the operative facts as pleaded and considers all the questions of law raised by the demurrer. It would serve no good purpose and add nothing to the literature of this cause for us to restate how the questions arose and to take up and discuss in detail each separate assignment of error as it relates to each cause of action.

The question the answer to which is determinative of this case is whether the plaintiff has in any of his four numbered causes of action stated a case. If he has, then the questions of jurisdiction and capacity of the plaintiff to sue will have to be considered at length.

Without respect to the form of the four causes of action, it is common to all of them that recovery is sought for detailed, extensive, valuable and successful services performed under Section 687-9, General Code. In two of the causes of action it is so pleaded specifically. In the other two it manifestly appears.

.There is- no direct authorization in the Eikenberry Act for payment to counsel for the services here performed. Is there any implied authority for such payment? If there is not, then the form of action, whether legal or equitable, whether a class suit, whether a fund was protected or preserved or whether the principle of equitable contribution is properly presented, is without controlling consequence.

The purpose, scope and effect of the Eikenberry Act are clearly defined in Slocum v. Mutual Building & Investment Co., 130 Ohio St., 312, 199 N. E., 175, wherein it was said in the first paragraph of the syllabus:

“By the enactment of Sections 687 to 687-21, General Code, the state has exercised its power to preempt the field in providing a specific, adequate, exclusive and constitutional method of procedure for the dissolution of building and loan associations and the liquidation of their assets.” (Emphasis ours.)

The court there could not have been more explicit in indicating not only that the procedure set out in the designated sections was specific but also that it-, was exclusive and constitutional, and that the state preempted the field as to the liquidation of building and. loan associations. ■ ■

In the light' of the definite pronouncement of' the Supreme Court in the Slocum case, no proceeding may accomplish that which is not in contemplation of or included in the specific provisions of the Eikenberry Act.-

As to the Slocum case, we have in two instánces' searched the act and particularly the applicable sections thereof to determine the answer to the question presented in that case, which answer in our judgment likewise determines if plaintiff in the instant case has stated a cause of action in his second amended petition.

This court has twice held that counsel who appear for shareholders on an application by the Superintendent of Building and Loan Associations under Section 687-9, General Code, may not have remuneration for such services performed out of the assets of a building and loan association in liquidation.

In In re Liquidation of Columbian Bldg. & Loan Co., 21 Ohio Law Abs., 35, although the record was meager, it was clear that Levinson claimed that in a proceeding upon a plan of reorganization proposed in the liquidation of the Columbian Building '& Loan Company he had performed services as legal counsel for his client as a result of which the proposed plan of reorganization was refused. His claim was filed as an intervening application in the liquidation proceedings. The trial judge dismissed Levinson’s application and refused him opportunity to offer evidence in support of his claim.

In passing on the appeal we said among other things:

“The statute [Section 687-9, General Code], in our judgment, does not have for its purpose the making of parties to the action in adverse relationship, nor the filing of pleadings as contemplated by the Code. It accords only to a shareholder, depositor or creditor the right to appear and be heard in some manner other than by the raising of an issue in the form of pleadings. This conclusion is heightened by reason of the further language of the statute, which says that ‘no order of the Common Pleas Court or judge thereof entered pursuant to this section shall be deemed a final order’ * ft # ? ?

‘‘If the action below were in chancery and not limited by provisions of the statute, we would be disposed to say that the court should have heard appellant touching the result of his activity as counsel for the guardian and the value of. his services. But as the whole matter proceeded under specific authority of the statute and as it does not contemplate parties adverse to the Superintendent of Building and Loan Associations nor pleadings under our civil code nor a final order or judgment as of the time when the determination under consideration here was made, the trial court was with out authority to fix a fee for the services rendered, no matter how valuable they may have been.” (Emphasis ours.)

- Later, upon the identical facts and parties as in the instant case, in the cases of In re Liquidation of American Loan & Savings Assn., 21 Ohio Law Abs., 374, the following headnote appears:

“The Common Pleas Court has no authority [either at law or in equity] to allow attorneys’ fees for services rendered by attorneys in successfully resisting the application of the Superintendent of Building and Loan Associations for a loan from the Reconstruction Finance Corporation and the pledging of the assets of ' such associations, in liquidation or reorganization proceedings.”

That part of the headnote in brackets is not found in the reported opinion, but it could well have been included, upon the viewpoint of this court as expressed in the opinion.

Appeals in those cases were dismissed by the Supreme Court of Ohio (131 Ohio St., 330, 2 N. E. [2d], 823). In those cases, as here, it was urged that the services in behalf of plaintiff were for the benefit of all the shareholders of the associations in liquidation, and that the court should make an order for the payment of counsel fees out of the fund. The decisive question in the trial court and on appeal was raised by a motion of counsel for the superintendent to refuse the application because the court did not have jurisdiction to consider or allow such fees. It was our theory then, and is now, that- the only procedure available to the shareholders, whom counsel for the plaintiff represented in the hearing at the juncture at which they appeared, was that set out in Section 687-9, General Code; that the provisions of such section were comprehensive, complete, exclusive and subject to the limitations which we had defined in the Columbian case; and that such section did not contemplate any award of counsel fees out of the assets of the association for services rendered in such a proceeding. If such award could not be accomplished by application to the Common Pleas Court in the proceedings under Section 687-9, General Code, it could not be brought about by a separate suit. If the court had authority to allow the compensation, it could apply such legal or equitable principles as would be required to accord the remedy. The barrier to recovery in this case is not technical or is it the form of the action, but is based upon the terms of the statute.

But it is urged with much force that the trial court did not make distinction, nor can distinction be made, between the instant case and the cases of Smith v. Kroeger, Supt. of Bldg. & Loan Assns., 138 Ohio St., 508, 37 N. E. (2d), 45; Dennick, Admr., v. Miami Savings & Loan Co., 44 Ohio Law Abs., 586, 69 N. E. (2d), 86; and Pickrel, Schaeffer & Ebeling v. Merion, Supt., 45 Ohio Law Abs., 23, 66 N. E. (2d), 273.

In the Smith case, it was held that the suit was a class suit and that the action taken by the trial court and approved by the appellate court was within the powers of a court of equity. That case was a separate proceeding on the chancery side of the court in which the Superintendent of Building and Loan Associations and the Miami Savings & Loan Company were defendants, and in which it was held that the books of Miami should be reformed and that former shareholders of the Buckeye Building & Loan Association should be classified as creditors of Miami all adverse to the claim of defendants. As a result of such court order approximately 1,600 persons situated similarly to the plaintiff had their status changed to their pecuniary advantage in a sum that was capable of specific calculation.

The Dennick case was enough like the Smith case to permit this court to decide the former upon the strength of the latter case. The Supreme Court, sua sponte, dismissed the appeal from the judgment in the Dennick case (143 Ohio St., 490, 55 N. E. [2d], 795). An appeal to the United States Supreme Court was dismissed for want of a substantial federal question, 323 U. S., 667, 89 L. Ed., 542, 65 S. Ct., 58, rehearing denied, 323 U. S., 813, 89 L. Ed., 647, 65 S. Ct., 113.

In the Pickrel, Schaeffer & Ebeling case, the Mutual Home & Savings Association was in process of liquidation pursuant to the provisions of Section 687-21, General Code. There was a deputy Superintendent of Building and Loan Associations assigned to the association and board of directors of nine members. The Superintendent of Building and Loan Associations took over the business, assets and affairs of the company by virtue of Section 687-21, General Code, claiming that the liquidation was being improperly conducted and that the interests therein were not being properly protected. The board of directors resisted the action of the superintendent in an adverse civil action, Section 687-22, General Code, and in conjunction with this authorized procedure the plaintiffs represented the board of directors as legal counsel. The rationale of the opinion is that from the specific authority granted to the board of directors to resist the action of the superintendent, there was implied authority for it to employ counsel and to pay counsel from the funds of the association in liquidation.

Manifestly, all those cases were, from their inception, adversary in character, and proceeded either upon well recognized general equitable principles, against which there was no statutory inhibition, or under specific or implied authority of the liquidation statutes.

We will not discuss the numerous other questions presented on this appeal but will b¿ satisfied to affirm the judgment on the excellent, well considered and learned opinion of Judge Martin, wherein is considered the determinative questions presented on this appeal. We find no error in this record to the prejudice of plaintiff’s cause;

The judgment is affirmed.

Judgment affirmed.

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


author: Stuart, J.

text:
    Huff, Appellee, v. Huff, Appellant.
    (No. 715
    Decided June 10, 1946.)

      Messrs. Bowman, Hanna & Middleton, for appellee'..

      Mrs. Eva Epstein Shaw, for appellant.
   Stuart, J.

This is an appeal on questions of law from a judgment of the Court of óommon Pleas entered in an action instituted by the filing by plaintiff,, appellee herein, of a petition praying for a divorce from his wife, defendant and appellant herein, and in which action' defendant filed an answer and cross-petition praying for a divorce and temporary and permanent alimony. The ease was tried on the issues, joined by those pleadings and the reply of the plaintiff. The trial court dismissed the petition and, granting the prayer of defendant’s cross-petition, dissolved the marriage contract for the aggression of the plaintiff and made a division between the parties of the real property owned by them, each to have and possess his or her portion in his or her own right and each divested of all right, title, interest or claim by dower or otherwise of the other in and to the property so awarded to the other and each to convey to the other in fee simple the premises so set off to such other. The court awarded the custody of the minor-child to the defendant, made provision for the child’s support and made a division of the personal property.

The provisions of law regulating divorce and alimony proceedings in this state are found in Sections 11979 to 12003, inclusive, General Code, and of those sections the only ones relating to the property and pecuniary rights of the parties as between themselves and relating to the court’s power in regard thereto, in-the order in which they become applicable and may be invoked in such proceedings, are as follows:

Section 11994 authorizes the court to “grant alimony to either of the parties for his or her sustenance and expenses during the suit, and allowances for the support of minor children.” (Italics ours.)

Section 11990 provides that where a divorce is granted because of the husband’s aggression, the court shall allow the wife such alimony out of her husband’s property as it deems reasonable.

Section 11991 provides: ‘ ‘ Such alimony may be allowed in real or personal property, or both, or by decreeing to her- such sum of money, payable either in gross or instalments, as the court' deems equitable.” (Italics ours.)

Section 11992 reads: “When it appears to the court that the husband is the owner of little or no property and the wife is the owner of lands or personal estate, or both, the court may adjudge to the husband such share of her real or personal property, or both, or may decree to him such sum of money out of her estate, payable in gross or by instalments, as it deems just, having due regard to all the circumstances of the parties.” (Italics ours.)

It follows that under the three last-cited sections, where a divorce is granted on the aggression of the husband and he “is the owner of little or nó property,” the court may adjudge to the husband a share of the wife’s property. Those provisions, in that regard, can have no application to this case, as it appears that the parties were the joint owners of substantially all the'property involved.

Section 11993 provides: “When the divorce is granted by reason of the aggression of the wife, the court may adjudge to her such share of the husband’s real or personal property, or both, as it deems just; or the husband shall be allowed such alimony out of the real and personal property of the wife as the court deems reasonable, having due regard to the property which came to the wife by marriage, and the value of her real and personal estate at the time of the divorce. Such alimony may be allowed to him in.real or personal property, or both, or by decreeing to him snch sums of money payable either in gross or by instalments, as the court deems equitable.” (Italics ours.)

Under Section 11998, on petition for alimony alone, the court shall “give judgment in favor of the wife for such alimony out of her husband’s property as is equitable, which may be allowed to her in real or personal property, or both, or in money, payable either in gross or by instalments.”

Section 11999 reads: “Such judgment shall restore to the wife all her lands, tenements, and hereditaments not previously disposed of, free from the control or interference of her husband, unless the court, for good cause, vests such property or powers in trustees, for her use and benefit. ’ ’

That section has become inoperative by the enactment in 1887 of the “Married Woman’s Act” (Sections 7995 to 8004, General Code) which did.away with the common-law rules with regard to interests and rights of husband or wife in the property of the other.

“A proceeding for alimony does not invoke the equity powers of the court but is controlled by statute. The court is only authorized to exercise such power as the statute expressly gives, and such as is necessary to make its orders and decrees effective.” Marleau v. Marleau, 95 Ohio St., 162, 115 N. E., 1009. See, also, DeWitt v. DeWitt, 67 Ohio St., 340, 66 N. E., 136.

In Durham v. Durham, 104 Ohio St., 7, 9, 11, 135 N. E., 280, the Supreme Court said:

‘ ‘ This court is committed to the principle that in divorce and alimony proceedings the court in awarding alimony is controlled by statute, and is not authorized to exercise general equity powers. * * *

“In divorce the trial court is given a wide latitude-of discretion in -the allowance of what the statute terms-alimony, the court being permitted upon finding who-is the aggressor to award the one aggrieved either a share of the other’s property, or alimony out of real or personal property, based not only upon requirements-of support and maintenance, but with regard to the-property which came to one or the other by marriage,, and the value of the real and personal estate held by such person at the time of divorce. Those sections-[11990, 11991, 11992 and 11993, General Code] contemplate a final dissolution of the marriage contract and a final termination of the marital relation. The award, whéther denominated alimony or .share of the property, is made only where divorce has been obtained.”

Under the Code, there is no express authority to-divide property of the parties, no matter to what extent the court might be impelled to equalize their holdings by an award of alimony to one of the parties-out of the property of the other, and, in view of the amendment to Section 11986, General Code, effective-January 1, 1932, providing that upon the granting of a divorce each party shall be barred of all right of' dower in real estate of the other by force of such judgment, it is unnecessary and superfluous to incorporate in the order of the court such bar which arises by operation of law.

As substantially all the real estate involved is owned by the parties jointly, a division thereof would in effect partition such real estate between them, a result to be accomplished only in a proceeding in partition.

Cases cited, which were decided prior to the amendment of Section 11986, General' Code, in 1932, are of little assistance in the instant case.

Since we find that the judgment of the court, making a division of the property between the parties, barring dower of each in the property awarded to the other and directing that each convey to the other in fee simple the premises so set off to the other, is erroneous, the' judgment in its entirety is reversed and the cause is remanded to the trial court for a new trial.

Judgment reversed and cause remanded.

Carpenter and Conn, JJ., concur.


text:
    Spencer, Appellee, v. The News Publishing Co., Appellant.
    (No. 3929
    Decided February 3, 1947.)

      Messrs. Iddings, Jeffrey, Weisman & Rogers and Mr. Raglan R. Reid, for appellee.

      Mr. Frank G. Shearer, for appellant.
   By the Court.

This is an appeal on- questions of law from a judgment of the Court of Common Pleas-of Franklin county. The action is one for damages-for libel arising out of a series of articles published,, between November 25, 1944, and February 17, 1945,. by the defendant in its weekly newspaper styled “The-Ohio State News.”

The case was tried to a jury which returned a verdict for the plaintiff in the sum of $3,500.

The first error assigned is that the trial court erred in the admission of evidence over the objection of the defendant. The error referred to was the admitting in evidence of the entire issues of the newspapers which contain the articles complained of. Counsel for the defendant contends that those articles should have been clipped from the newspapers and only the articles themselves admitted into evidence. We are referred to 17 Ohio Jurisprudence, 164, Section 127, which states that irrelevant matters must be excluded. We do not believe those exhibits to be irrelevant,’ for in án action of this kind it is relevant for the court and jury to-know not only the contents of the.printed article but its position in the newspaper with reference to the total number of pages contained in that particular edition and the article’s location on a particular page. The trial court at the time of admitting those exhibits very properly directed the jury to disregard the contents of the various newspapers except as to the articles concerning the plaintiff. We find no error in the admission of such evidence.

The second assignment of error is that the trial court erred and abused its discretion in refusing to permit the defendant to file an amended answer at the opening of the case. The record discloses that more than one year elapsed between the filing of the petition and the commencement of the trial. The record further shows material differences between the original answer and that tendered by the defendant after the jury has been impanelled and sworn. The second answer tendered raised new issues of which the plaintiff could not have known and was not prepared to meet. Section 11363, •General Code, very properly permits amendments of pleadings “in furtherance of justice” and in the sound ■discretion of the court. The trial court stated that to permit the proposed amendment would not be in furtherance of justice and overruled the defendant’s motion. Counsel is relying on the case of Buckeye Garage & Sales Co. v. Caldwell, 18 C. C. (N. S.), 429, 33 C. D., 136, which we find, on the basis of the facts involved, has no application to the instant case. In our opinion there was no abuse of discretion on the part of the trial court.

The third assignment of error is that the trial court erred in refusing to charge the jury as requested by the defendant on the subject of truth as a defense. The record shows that counsel for the defendant after the court had completed its charge specifically requested the Court to charge the jury upon the subject of truth as a defense, which request the court denied on the ground that truth was not pleaded as a defense.

The Ohio cases cited by defendant’s counsel recite the well known rule that truth is a defense in a libel .action, and it is so provided in Section 11342, General Code. The answer filed by the defendant does not plead truth as a defense but is in the nature of a gen■eral denial.

An examination of the entire charge of the court reveals that the court properly charged the jury under the pleadings and evidence on the question of truth. The jury was instructed that the truth of the alleged statements may be considered for the purpose of mitigating the damages. We find this assignment of error is not well taken.

The next assignment of error is that the verdict was excessive and should have been set aside for the reason that it appears to have been given under the influence of passion or prejudice. We find nothing in the record' to support that conclusion.

The last assignment of error is that the court erred in its charge to the jury as to damages. The defendant is contending that the court, to the prejudice of the defendant, overemphasized the word' “ damages’ * and used it so constantly as to be repetitious. We have thoroughly examined the entire charge and find that there is no merit in this assignment. The court did give a lengthy charge, which was thorough and correctly stated the law of this state. The word was used only as the record in this case required.

The judgment will be affirmed.

Judgment affirmed.

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


author: Jackson, J.

text:
    Wise, Appellee, v. Bishop, Appellant.
    (No. 482
    Decided December 20, 1946.)

      Mr. Marcus C. Downing, for appellee.

      Messrs. Betts <& Betts, for appellant.
   Jackson, J.

The record discloses that the verdict ■of the jury was returned February 7, 1946, and the motion for new trial was filed by the appellant on February 15, 1946. The journal entry overruling the mo-lion for new trial and rendering judgment on the verdict was filed April 1, 1946.

The April term of court was fixed to begin as of April 1, 1946.

A motion to dismiss an appeal to this court was filed herein April 23, 1946. Such motion is on the ground' that the motion for a new trial was not filed within ■three days after the rendition of the verdict.

Section 11578, General Code, at the time of the filing •of the petition on January 11,1945, required that such an application for a new trial must be made at the term the verdict, report or decision is rendered, except for the canse of newly discovered evidence, material for the party applying, which he conld not with reasonable diligence discover and produce at the trial. The application must be made within three days after the verdict or decision was rendered, unless applicant was unavoidably prevented from filing it "within such time.

Section 11578, General Code, as amended (121 Ohio Laws, 367), provides:

"The application for a new trial must be made within ten days after the journal entry of a final order, judgment or decree has been approved by the court in writing and filed with the clerk for journalization, except for the cause of newly discovered evidence, material for the party applying, which he could not with reasonable diligence discover and produce at the trial. If a party was unavoidably prevented from filing an application for a new trial within such time, the court may in the interest of justice extend the time.”

In the instant case no question is raised that the motion for new trial was filed within term. However, eight days elapsed after the verdict of the jury before the filing of such motion.

Section 11578, General Code, as amended, makes no reference to the term of court at which the verdict is'rendered but the time within which a motion for new trial must be filed is fixed at ten days after the journal entry has been approved by the court in writing and filed for journalization, except for the cause of newly discovered evidence, and if a party is unavoidably prevented from filing the motion within such time the court may, in the interest of justice, -extend the time.

The motion to dismiss the appeal raises the question whether former Section 11578, General Code, or amended Section 11578, effective October 11, 1945, applies with reference to the time within which a motion for a new trial must be filed.

This question is neither necessary nor proper at this time. If the provisions of amended Section 11578 apply, the motion for a new trial’was filed within the ten days prescribed. If the provisions of former Section 11578 apply, it does not, .for the reasons hereinafter mentioned, affirmatively appear that the motion for a new trial was not filed within the time prescribed.

As shown by the original papers and the transcript of the docket and journal entries, the motion for a new trial was duly heard, considered and overruled by the court.

No attack, by motion or otherwise, was made upon the filing of the motion for a new trial, and no motion was made challenging the irregularity, if any, in the filing of the motion for new trial, until April 23, 1946, when the motion to dismiss was filed in this court.

Former Section 11578 permitted the filing of a motion for new trial more than three days aftér the verdict if the applicant was unavoidably prevented from filing such motion .within three days. The Common Pleas Court, no motion to strike having been filed or objection otherwise having been made by plaintiff, acted upon the motion as though it had been filed within the proper time, and, therefore, it must be presumed, in the absence of anything to the contrary appearing of record, that such a state of facts existed as would permit the filing of the motion at the time it was filed, and that the court acted within its jurisdiction and authority.

This is in accordance with the rule that every presumption will be indulged to afford a party the benefit of the remedial and procedural statutory provisions clearly and obviously intended. Hoffman v. Knollman, 135 Ohio St., 170, 173, 20 N. E. (2d), 221.

It also appears from the transcript and the indorsement on the bill of exceptions that the latter was filed within the time limited by law, and, it being presumed that the motion for a new trial was" filed within the time limited by law, all-assignments of error are considered, which require resort to the bill of exceptions.

Motion ovemtled.

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


text:
    Pearlstein, Appellant, v. A. M. McGregor Home et al., Appellees.
    (No. 20444
    Decided February 10, 1947.)

      Mr. Harry J. Dworkin and Miss Elsie R. Tarcai, for appellant.

      Messrs. Duncan & Thomas, for appellees.
   Hurd, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas, wherein a verdict and judgment were rendered in.favor of the defendants in a personal injury action, predicated upon the alleged negligence of the defendants in permitting a stairway in an apartment house to remain unlighted after dark and in obstructing the landing thereof by a garbage can over which the plaintiff claims to have fallen and to have suffered certain injuries as a result thereof.

During the course of the general charge to the jury the court instructed the jury as follows:

“ * * * jf yotl find that the plaintiff was not in the exercise of ordinary care for her own safety if you find that she tripped over a high heel or some other cause, or due to her own inadvertence or negligence, she-could not recover at your hands.” (Italics purs.)

There is no evidence that the plaintiff was wearing-high heel shoes. Therefore that charge was prejudicially erroneous. It is settled that it is prejudicial and reversible error to inject into a case issues not raised by the pleadings or evidence.

See 2 Ohio Jurisprudence, 952, Appeal and Error, Section 774:

“Injecting New Issues Into Case. — It is clearly reversible error for the court in its instructions to inject into the case issues and questions not raised by the pleadings or the evidence, if they have a tendency to confuse the questions properly in the case and to mislead the jury to the prejudice of the plaintiff in error. This rule has found frequent application in negligence actions where the court has brought into its charge elements of negligence which were not alleged in the. pleadings or shown by the evidence. ’ ’

See, also, Langabaugh v. Anderson, 68 Ohio St., 131, 67 N. E., 286, 62 L. R. A., 948; Wuesi v. B. & O. S. W. Rd. Co., 5 C. C. (N. S.), 619, 17 C. D., 365; 2 Ohio Jurisprudence, 960, Appeal and Error, Section 778; L. S. & M. S. Ry. Co. v. Reynolds, 21 C. C., 402, 11 C. D., 701; Cincinnati, G. & P. Rd. Co. v. Burkhardt, 10 C. C. (N. S.), 543, 20 C. D., 699, affirmed, Burkhardt v. Cincinnati, G. & P. Rd. Co., 82 Ohio St., 463, 92 N. E., 1110; Helton v. Northern Amusement Co., 62 Ohio App., 470, 24 N. E. (2d), 713; Cincinnati Traction Co. v. Forrest, 73 Ohio St., 1, 75 N. E., 818; Tarian v. City of Alliance, 66 Ohio App., 423, 32 N. E. (2d), 578; Weybright v. Fleming, 40 Ohio St., 52.

Another ground of error assigned is that during the course of the trial the court permitted the defendants, over objection, to develop in great detail and to ,a considerable extent, the charitable and eleemosynary objects and purposes of the defendant corporation. It is true that the defendant corporation in this case is a charitable organization. However, the ownership .and operation of the apartment house in question is not a charitable activity. The emphasis placed upon the charitable character of the organization to the ■extent allowed by the court was likewise prejudicial, inasmuch as such evidence had a tendency to unduly favor the defendants in a matter which was not in issue. See 17 Ohio Jurisprudence, 166, Section 128; Thompson v. Kerr, 39 Ohio Law Abs., 113, 51 N. E. (2d), 742 (motion to certify overruled, May 26, 1943); City of Galion v. Lauer, 55 Ohio St., 392, 45 N. E., 1044.

For the reasons stated the judgment of the Court of Common Pleas is reversed and the cause is remanded for further proceedings according to law.

Judgment reversed.

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


author: Matthews, P. J.

text:
    Pilgrim Distributing Corp., Appellee, v. Galsworthy, Inc., Appellant.
    (No. 6750
    Decided March 10, 1947.)

      Mr. Aubrey M. Foiles, Messrs. Harmon, Colston, Goldsmith, <& Iloadly and Mr. Henry B. Street, for appellee.

      Messrs. Dinsmore, Shohl, Sawyer & Dinsmore and Mr. F. B. McConaughy, for appellant.
   Matthews, P. J.

This is an appeal on questions of law from an order of the Common Pleas Court overruling a motion to discharge an attachment, and the appellee raises in limine the question of the jurisdiction of this court, as conferred by Section 6, Article IV of the Ohio Constitution, to review such an order.

Starting with Farmers Bank & Trust Co. v. Cooper Tire & Battery Co., 37 Ohio App., 54, 173 N. E., 743, this court has held in a series of cases that an order overruling a motion to discharge an attachment is a final order affecting a substantial right and that courts of appeal have jurisdiction to review such an order. See Price Hill Colliery Co. v. Old Ben Coal Corp., 38 Ohio App., 151, 175 N. E., 755; Devine v. Detroit Trust Co., Recr., 52 Ohio App., 446, 3 N. E. (2d), 1001; Toledo Paper Box Co. v. Jay Lane, Inc., 20 Ohio Law Abs., 334, and Hamilton v. Temple, 60 Ohio App., 94, 19 N. E. (2d), 650.

We have reconsidered the reasons assigned for our holdings in those cases, and have reached the same conclusion. As long ago as 1855, the Supreme Court in Watson & Co. v. Sullivan, 5 Ohio St., 42, decided that:

“An order of the Court of Common Pleas, discharging an attachment against a resident as to the whole of the property attached, is an order affecting a substantial right made in a special proceeding, which may be reversed, pending the action in which the order of attachment was made.”

And in the opinion by Judge Kennon, who was one of the authors of the Code of Civil Procedure, the subject of the meaning of the phrase “special proceeding” was discussed at length and the conclusion reached that an attachment was a special proceeding, and, therefore, an order discharging an attachment could be reviewed by the District Court on proceedings in error. The court also held that the order discharging the attachment affected a substantial right. We can see no distinction as to the substantial right affected between an order discharging and an order refusing to discharge. The parties were equally interested in having the jurisdiction of the court over the res determined, and equally prejudiced by a void order. The only difference is that the prejudice is shifted from one to the other.

See, also, Harrison v. King, Carey & Howe, 9 Ohio St., 388, at page 395, in which the court reviewed an order overruling a motion to discharge, and Gans v. Thompson, 11 Ohio St., 579, in which the court reviewed an order discharging an attachment.

Speaking of the meaning of the word “judgment” as used in Section 6 of Article IV of the Constitution, the Supreme Court said in Chandler & Co. v. Southern Pacific Co., 104 Ohio St., 188, at pages 192 and 193, 135 N. E., 620:

“We appreciate the gravity of the legal problem here involved. But in its solution this court cannot adopt a construction so narrow as to deprive litigants of remedies enjoyed since the adoption of our civil code of procedure. Our bench and bar of this and preceding generation knew that the definitions of ‘judgments’ and ‘final orders’ had been engrafted.upon our civil code and that our remedial procedure embraced the review of final orders; and undoubtedly those who framed the Constitution of 1912 did not contemplate a restriction of those civil remedies continuously employed for a period of more than sixty years'. While we may not permit the conferment of legislative jurisdiction upon the Court of Appeals under our present Constitution, it is permissible to define the term ‘judgments’ as used in the Constitution. At common law the term was used in a restricted sense. Lexicographers and courts have variously defined it, some giving it a restricted and others a broad and comprehensive meaning. We are satisfied that in order to effectuate the purpose of those who framed this amendment, and in order to promote the object of the people in its adoption, a technical definition should be disregarded and a broad and comprehensive meaning should be adopted. We, therefore, hold that it comprehends decrees and final orders rendered by a court of competent jurisdiction and which determine the rights of parties affected thereby. Were we to arrive at any other conclusion than herein announced a review of a large number of final orders affecting the substantial rights of litigants would be denied. ’ ’

That the General Assembly which enacted the Appellate Procedure Act, effective January 1, 1936, considered an order either discharging or refusing to discharge an attachment as* a reviewable order is clear, because as a part of that act it amended Section 11864, General Code, to conform to it by providing that an order discharging or refusing to discharge an attachment may be appealed “on questions of law.”

However, we find our judgment on this point in conflict with the judgments in Rothman v. I. Seldin & Kneller, 37 Ohio App., 408, 174 N. E., 794, and Halloway v. Mahoning Auto Service Co., 14 Ohio Law Abs., 172, decided by Courts of Appeals of other appellate districts, and, for that reason, will certify this case on that ground to the Supreme Court. The decisions in those cases were based somewhat on interpretations of the opinion in Pullman Co. v. Automobile Ins. Co., 107 Ohio St., 283, 140 N. E., 355. However, the point here presented was not mentioned in the syllabus and, as we construe that part of the opinion relied on in those cases, the court was pointing out that one of the statutes under consideration was special and the other general, and that, therefore, the special statute controlled. Inasmuch as our conclusion is that this court has jurisdiction, we will pass upon the errors assigned.

(1) It is claimed that the order of attachment was issued before the action was commenced and is void for that reason.

The facts are that the petition, with praecipe attached, was duly filed in the clerk’s office. In addition to the usual wording of a praecipe for a summons, there was a direction to mail a copy of the petition to defendant at 414 Elizabeth avenue, Newark, New Jersey. At some time after the praecipe was filed, an unidentified person drew a line in ink, extending from the left hand lower corner to the right hand upper corner, and then crossed this by an open loop at the end near the signature of the attorney and with the closed end at the upper left hand corner. When the attorney' filed the petition, a conversation took place; between him and a deputy clerk concerning instructions to the sheriff and the attorney undoubtedly told the clerk that the defendant was a foreign corporation and could not be served in Hamilton county. That conclusion is in accord with all the evidence and is fortified by the fact that at the same time the petition was filed an affidavit in attachment was filed in which it was averred that the defendant was “a foreign corporation, that said defendant is a nonresident of and is not domiciled in the state qf Ohio.” ' The appearance docket .shows that the affidavit in attachment was filed and on the same day a writ of attachment was issued. There is no notation on the appearance docket of the •filing of the praecipe for summons, or that a summons was issued. The evidence shows that a summons was prepared but never delivered to the sheriff. Apparently at the time the summons was prepared by the clerk, he stamped on the petition the word “issued,” twice, but any implication therefrom that a summons was delivered to the sheriff is contrary to the undisputed testimony of all the participants in the transaction. As the praecipe had no marks of cancellation or withdrawal superimposed on it at the time it was filed, placing them thereon subsequently, no matter by whom, without the leave of the court would be ineffective to change the praecipe as originally filed. E. L. Rice & Co. v. Pike, 117 Ohio St., 521, 160 N. E., 90. We, therefore, must consider that although the praecipe was filed and the summons prepared by the clerk, it was not delivered to the sheriff. Constructive service was not started until August 9, 1946, when an affidavit was filed. The affidavit in attachment was filed with the petition and the writ was issued on the same day.

Did what was done constitute the commencement of the action at the time the petition was filed? If it did, the attachment is valid; otherwise, not.

By Section 11279, General Code, it is provided that “■A civil action must be commenced by filing in the office of the clerk of the proper court a petition, and causing a summons to be issued thereon. ’ ’

The courts have had occasion to apply that section in several instances. In Seibert v. Switzer, 35 Ohio St., 661, it was held, as stated in the first two paragraphs of the syllabus:

“1. An attachment, under the civil code, is an auxiliary proceeding in an action, which may be sued out by the plaintiff, at or after the' commencement of such action, by filing a petition and causing a summons to issue thereon.

“2. About 11 o’clock, a. m., an order of attachment was issued upon the filing of an affidavit and giving-bond. It was served and returned about 3 o’clock, p. m., but no petition was filed until about 6 o’clock, p. m., of the same day. Held, 'that, the attachment was issued without authority of law, and as against other attaching creditors and lienholders gave no priority. ’ ’

Recently, the Supreme Court discussed that section in Crandall v. Irwin, 139 Ohio St., 463, 40 N. E. (2d), 933. In the first paragraph of the syllabus the court said:

“Section 11279, General Code, prescribes the manner of commencing a civil action, i. e., by filing in the office of the clerk of the proper court a petition and causing summons to be issued thereon.”

And, at page 467, it is said of Seibert v. Switzer, supra:

“It will thus be seen that the question in that case was the manner of commencing an action. Time was involved only to the extent of showing that the plaintiff had gotten the cart before the horse, i .e., he had filed an auxiliary proceeding before commencing an action in the manner provided by statute. Of course, no jurisdiction could be obtained by attachment until plaintiff had followed the statute as to the manner of commencing a civil action. ’ ’

It is also made clear in Rorick v. Devon Syndicate, 307 U. S., 299, 83 L. Ed., 1303, 59 S. Ct., 877, that Section 11279, General Code, prescribes the way in which an action must be commenced and that the actual service of summons is not a part of it. If the petition' is filed and a summons caused to be issued thereon the action is commenced regardless of whether the summons is served.

In Shaffer v. Shaffer, 69 Ohio App., 447, 42 N. E. (2d), 176, the court held that as an affidavit for constructive service was filed with the petition the action was commenced and an attachment levied thereafter and before any summons was issued or publication made was not premature.

This case does not involve the statutes of limitation or any other issue in which time is an element. It is not a question of -when, but how to commence an action.

We have found no case in Ohio in which the. facts were identical with the facts in this case. Here, no affidavit for constructive service was on file at the time the attachment was issued. A summons had been prepared by the clerk, but it was never delivered to the sheriff. If delivery to the sheriff was a necessary element of its issuance, then a summons had not been caused to be issued and the action had not been commenced. This would result even though the plaintiff had made an unequivocal demand upon the clerk to issue the summons. McLarren v. Myers, Admr., 87 Ohio St., 88, 100 N. E., 121.

In other jurisdictions we find many cases on this subject and there is no conflict among them. All hold that the mere preparation of the summons by the clerk is not an issuance of it. To make it an issuance the summons must be delivered to the sheriff for the purpose of service. We content ourselves with citing a few. Woodstock v. Whitaker, 62 Nev., 224, 146 P. (2d), 779, 780, 781; White v. Reed, 60 Mo. App., 380, 385; McMaster v. Ruby, 80 Ore., 476, 483, 157 P., 782; Hoover Lines, Inc., v. Whitaker, 22 Tenn. App., 223, 227, 120 S. W. (2d), 983; Hufstedler v. Harral (Tex. Civ. App.), 54 S. W. (2d), 353, 355; Borgen v. Corty, 181 Minn., 349, 351, 232 N. W., 512; Ferguson v. Estes & Alexander (Tex. Civ. App.), 214 S. W., 465, 466. Many other cases are cited in those cases to support their conclusions as to the meaning of “issuance” of a writ.

We hold that the attachment was levied before this ■action was legally commenced and is, therefore, void ■and should be set aside.

(2) The ground of attachment alleged in the affidavit is ‘ ‘ that said defendant is a foreign corporation; that said defendant is a nonresident of and is not domiciled in the state of Ohio.” The appellant contests the sufficiency of that averment as a ground of attachment. The appellee contends'that the averment contains two •equally valid grounds of attachment, to wit, that defendant is a foreign corporation, and also that it is a ■nonresident of Ohio.

By Section 11819, General Code, it is provided that .an attachment may be had upon any one of the following grounds: 1. “Excepting foreign corporations-which, by compliance with the law therefor, are exempted from attachment as such, that the defendant or one of several defendants is a foreign corporation; 2. Is not a resident of this state. ’ ’

Turning then to Section '8625-17, General Code,, which determines what foreign corporations are exempt from attachment, we find that it provides that:.

“A foreign corporation holding an unexpired and uncancelled license under this act shall not be subject to process of attachment under any law of this state on the ground that it is a foreign corporation or nonresident of this state.”

A reading of Section 8625-17, General Code, seems sufficient to make clear that if the defendant is exempt from attachment on the ground that it is a licensed foreign corporation, it is equally exempt on the ground that it is a nonresident of the state.

That it is necessary, in order to state a ground of attachment based on fact that defendant is a foreign corporation, to also aver that it has not been given exemption by compliance with the Ohio law governing-foreign corporations, was settled by the case of Leavitt & Milroy Co. v. Rosenberg Brothers & Co., 83 Ohio St., 230, 93 N. E., 904. It is stated in the second paragraph of the syllabus that: “In an affidavit for attachment under paragraph one of Section 5521, Revised Statutes, it is necessary to negative the exceptions in that, paragraph. ’ ’ At page 239, the court said:

“It will be observed that the section does not provide for an attachment against'all foreign corporations, but only against those that do not come within the exceptions. The proceedings in attachment are statutory remedies, and it is too well settled to need the citation of authorities that where' a statute confers a right or gives a remedy unknown to the common law that the party asserting the right, or availing himself of the remedy, must in his pleadings bring himself or his case, clearly within the statute. The statute does not provide for an attachment against all foreign corporations, but only on those that do not come within the exceptions, so that it is necessary to negative the exceptions in order that it may appear that the fact that the corporation is a foreign corporation is a ground of attachment. ’ ’

That this rule is of long standing is evidenced by the case of Whitecraft v. Vanderver, 12 Ill., 235, in which its application caused Abraham Lincoln to suffer a reversal.

We do not understand that appellee seriously disputes this rule, but rather contends that it has complied with it by the averment that the defendant is a “nonresident of and is not domiciled in the state of Ohio.”

In 23 American Jurisprudence, 42 et seq., it is said:

“It is undoubtedly true in a strict technical sense that such domicil, legal residence, or citizenship as a corporation may have is single in its essence and that a corporation can have only one, which is in the state of its origin and is fixed by its charter of incorporation. By. analogy, this domicil may be compared to the domicil of origin of a natural person, as to which such person may exercise no choice; more properly, however, it may be said to be a domicil by operation of law.”

And, again, in 13 American Jurisprudence, 280, it is stated:

“The domicil of a corporation belongs exclusively to the state or sovereignty under the laws of which it is created. A corporation can have no legal existence out of the boundaries of the sovereignty by which it is created. It exists only in contemplation of law and by force of the law of its creation; and where that law ceases to operate and is no longer obligatory, the corporation can have no existence.”

Our conclusion is that the averment that the defendant. foreign corporation is not domiciled in Ohio is the averment of a conclusion of law only and adds-nothing to the averment that the defendant is a foreign corporation. It could have complied with all the laws of Ohio applicable to foreign corporations and be entitled to exemption from attachment and still not be domiciled in this state.

(3) There was argued the question of whether the defendant had entered its appearance in this case, but we find it unnecessary to pass upon that question on this appeal from the order overruling the motion to dissolve the attachment. The acts which are claimed to be a general appearance took place some weeks after the writ of attachment was issued and, of course, could not operate retroactively to validate it. The defendant had entered a special appearance to contest the attachment and a general appearance could have no meaning in relation to the attachment. Should - the plaintiff seek a personal judgment, it would then be pertinent to inquire whether the court had acquired jurisdiction in personam.

For these reasons, the order overruling the motion to discharge the attachment is reversed, and the cause remanded with instructions to sustain the motion and dissolve the attachment, and for further proceedings according to law.

Order reversed.

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


author: Doyle, P. J. Doyle, P. J.

text:
    Oberholtz, Appellant, v. Oberholtz et al., Appellees.
    (No. 3822
    Decided March 7, 1947.)

      Mr. George McCamont, for appellant.

      Mr. John D. May, for appellees John W. Smith and Reída A. Smith.

      Mr. Otto C. Moyer, for appellees John Martin and Roxie Van Horn.
   Doyle, P. J.

This action was brought by the appellant, Alice Oberholtz, in the Court of Common Pleas of Summit county, against the appellee Ralph E. Oberholtz and others, to partition real property, and for an accounting.

Trial was had to the court without a jury, and at the conclusion of the evidence, judgment was rendered against the appellant, for the reason that the deed under which the title to the property in the plaintiff was claimed, was “ineffective to pass title to the grantees” therein.

Prom this judgment, appeal was perfected on questions of law, and attention is now directed to a consideration of the claimed erroneous judgment.

In the fore part of the year 1944, Charles Smith, father of the appellant, sought 'and received the services of H. P. Henley, an attorney at law, to perform the necessary work incident to the administration of his recently deceased wife’s estate. During these negotiations the attorney was also directed by his client to prepare a deed for the property now in controversy, and of which he was the owner, designating his daughter, Alice Oberholtz, as the grantee. The deed was prepared but not executed, and was given into the custody of the client.

A short time later, Smith again went to the office of attorney Henley, with the unexecuted deed in his possession, and instructed the attorney to add the name of John W. Smith — a son — to that of his daughter, Alice Oberholtz, as an additional grantee. This work was performed, and other language in the deed was changed topead “their heirs and assigns,” rather than “her heirs and assigns,” etc.

The deed — one of general warranty — was thereupon signed by the grantor, witnessed and properly acknowledged before a notary. The executed instrument was then taken away by the grantor.

Some months later — “around Christmas time” of 1944 — he again went to the office of his attorney, and after exhibiting the executed instrument, said to the lawyer: “Here’s that deed that you fixed up for me for John and Alice, and when I die see that they get it. ”

On September 8,1944, a date between the date of the execution of the deed and the date on which the instrument was delivered to and deposited with the lawyer with the instructions heretofore noted, the grantor executed a land contract for the sale of a part of the premises in question to John Martin and Roxie Van Horn, strangers in the family line, and received a money down-payment. In addition to the down payment, he likewise received monthly payments from these grantees until his last illness qnd the interruption of death.

It thus appears that (1) the owner of the property in question executed a land contract for the sale of a part of the property to third parties; (2) while the contract was in force, he delivered a general warranty deed for the entire property, to all of which he still held the legal title (even though a part had been sold under land contract), to an attorney with instructions to deliver the deed to two of his children named in the instrument as grantees, at the time of his death; (3) at his death the land contract was in full force and effect, and with the record-legal title in the grantor;. (4) shortly after the grantor’s death the deed was shown to the named grantees and then recorded with the express instructions of Mrs. Oberholtz, and the apparent approval of John W. Smith, the other grantee.

Under these facts (which appear undisputed), what became of the title to the property? Was it conveyed by deed to the named grantees, or' did the grantor die seized of the estate?

It .is claimed by the grantee John W. Smith that he has no legal title to the property through the. deed, ■ nor does his sister, Mrs. Oberholtz. He prays that the deed be ordered cancelled and the “title * * * be restored to the name of Charles Smith, deceased, and that the same be made part of the property of (the) decedent for administration.”

The contest before the court is between the two grantees (other heirs of the grantor are not parties); and although the vendees in the land contract are party defendants, there is no controversy as to them, as will hereinafter be noted.

It is’ established in this state, and generally throughout the country, that, where the owner of land delivers, to a third person, an instrument sufficient in form to convey land, with directions to the third person to see that the grantees named therein “get it” upon his death, the owner then and there intending to part with all right to withdraw, revoke or control the instrument, such owner delivers the instrument as his deed and is immediately and irrevocably bound by the provisions contained therein.

The Supreme Court of Ohio has expressed this general principle in the following terms:

“4. Where the grantor delivers his deed to a third person to be delivered by him to the grantee at the death of the grantor, without reserving to himself any control over the instrument, and such deed is delivered accordingly to the' grantee, the title passes to the grantee upon such last delivery, and, by relation, the deed takes effect as of the date of the first delivery.” Crooks v. Crooks, 34 Ohio St., 610. See, also, Patrick v. Parrott, 92 Ohio St., 184, 110 N., E., 725.

The “acceptance by the donee of a gift beneficial in character will be presumed, and this presumption prevails where the gift is delivered to a third person as trustee for the donee without the latter’s knowledge.” Streeper, Admr., v. Myers, 132 Ohio St., 322, 7 N. E. (2d), 554.

And, as applicable to the case under consideration, acceptance by both grantees, to the extent of making inflexible the intention and delivery of the owner, is presumed.

The petitioner herein, to establish her right to partition, must establish by the necessary degree of proof that she is now the owner of a legal estate in the property. And proof of this fact must be by evidence that her father, the grantor, intended, in the delivery to lawyer Henley, to divest himself of his right to withdraw, revoke or control the instrument as completely as though he were delivering it to the persons named as grantees and by words or act expressly or impliedly acknowledged his. intention. Whether there was a delivery, in the legal sense, under a state of facts, is a question of law; however, it is a question of fact whether the facts, which the law requires to constitute the delivery, exist and are proved.

The instrument given by the owner to the third-person was adequate in form to convey the land to the grantees. The act of delivery and the language employed, considered alone, were adequate to expressly acknowledge the intention of the grantor to be immediately and unconditionally bound by the provisions of the instrument. Patrick v. Parrott, supra.

Does other evidence, showing surrounding conditions, circumstances, acts and declarations of the grantor, prior and subsequent to the claimed delivery, make the question of intention and legal delivery one for debate and one upon which reasonable minds could reach different conclusions?

The question of intention must be established as of the time of the delivery of the deed to the third person. And it would seem that if, after such delivery, the grantor had sold the property under land contract and retained the proceeds, such fact would have probative value on the question of his intention at the time of the giving of the deed to the third person. Such, however, is not this case. On the contrary, the land contract for a part of the land described in the deed was given first. Several months later, and at a time when the interest of the vendor was “not that of a mere naked trustee for the vendee,” but was the holding of the legal title plus the.ownership of a beneficial interest in the land to the extent of the large unpaid balance, the vendor delivered his deed to the third person. Coggshall v. Marine Bank Co., 63 Ohio St., 88, 57 N. E., 1086.

The previous transaction of the land contract would have no negative bearing upon his intention to part with all control over the deed at the time of its delivery to the third party. It would seem to lend support to his intention, as evidenced by his acts and instructions, to part with all control over the instrument, because it may be presumed that he knew that under these circumstances the title to the property would not pass until his death or until the second delivery, and that-resort to the fiction that the deed took effect as of the date of the first delivery was not proper (Rathmell, Exr., v. Shirey, 60 Ohio St., 187, 53 N. E., 1098) and that the conditions extant in Crooks v. Crooks, supra, which required the ruling that the “deed [took] effect as of the date of the first delivery, ’ ’ did not exist under these circumstances. And he may be presumed to have known that as long as the title to the property under the deed did not pass until after his death or at the time of the second delivery, the payments on the land contract (a few of which he received prior to his death) were legally his. Therefore, the fact that he received and kept the money paid on the land contract, cannot be considered as effective evidence of a lack of intention to part with all control over the instrument at the time of delivery.

This court is of the opinion that there is no substantial evidence countering the reasonable and probable inferences to be drawn from the language of the deed, the language of the grantor to the third party at the time of the delivery, and the surrounding circumstances, and as a result thereof the intention of the grantor to divest himself of all control over the instrument was established.

The claim is made that it was the intention of the grantor to give the property to the two grantees for the benefit of all of his heirs at law.

We believe this claim untenable from the evidence. If he had intended that his children should share equally in the remaining property at his death, he could have included them as grantees in the deed. This he did not do.

The rights of the vendees under the land contract are not in dispute. They are, however, amply protected, as purchasers for value. And as to them, the present litigants stand in the same position as did their predecessor in title.

The judgment is reversed as being contrary to law; and the evidence being such that reasonable minds could reasonably reach but one conclusion, and that adverse to the contention of the appellees Smith, final judgment is entered for the appellant, and the cause is remanded for an accounting.

Judgment reversed.

Stevens and Hunsioker, JJ., concur.

(Decided April 3, 1947.)

On Application eor rehearing.

Doyle, P. J.

It is asserted in the application of appellees John W. Smith and Reída A. Smith for a rehearing that “the holding of the court requires the decision of the further question * * * as to whether the deed to the grantees entitles the said grantees to the unpaid portion of the monies which arise as a result of the sale of a part of the premises described in the deed by the decedent, Charles Smith, from the purchasers, John Martin and Roxie Van Horn. It is the submission of these defendant appellees that the monies arising by reason of the sale of the premises described in the land contract is personal property and accordingly passes to the estate of the decedent and not to the grantees in the deed of said decedent * *

We recognize the rule of equitable conversion’ as. applied to contracts for'the sale of real property — vis., that under certain circumstances equity looks upon things agreed to be done as actually done, and that,, when a contract is made for the sale of real property, the vendor, from the execution of such contract, holds the legal title to the lands as a trustee for the vendee, and the vendor’s beneficial interest in the contract is treated for purposes of descent as personalty and as an asset of the vendor’s estate to be administered by his executor or administrator.

However, when one contracts to convey land to another and retains the legal title, he likewise retains the right to convey his legal title to a third person, subject to the rights of the contract vendee. And if the third person grantee acquires his title with notice of the prior contract, or is not a bona fide purchaser for value, such grantee’s rights are no greater than those of his grantor. Mutual Aid Bldg. & Loan Co. v. Gashe, Assignee, 56 Ohio St., 273, 299, 46 N. E., 985; 40 Ohio Jurisprudence, 1033, Vendor and Purchaser, Section 127!

Now, in the case under consideration, it is observed that the grantees under the deed were the recipients of a lawful gift of property. Also, the possession of the premises by the vendees under the contract constituted notice to the world of the contract. It follows that their rights rose, no higher than those of their grantor. This being so, how high do these rights rise? Do these grantees hold only a bare legal title and no beneficial interest in the contract, or did the deed to them convey a beneficial interest as well as the title?

If the grantor did not intend to convey the beneficial interest and did not intend that the deed should be an assignment from the date of his death of the payments thereafter to fall due, then the only interest the deed conveyed was the right to repossess the property in event the vendees breached their contract of purchase. We think it may be assumed that the grantor intended to convey some financial interest in the property to his two children by the execution and delivery of the general warranty deed, and that assumption is buttressed by the fact that, in the deed, he reserved no rights to himself. If such was not his intention, the execution and delivery of the deed would have been a “useless and vain thing.” Dineris v. Phelan, 62 Utah, 387, 219 P., 1114; Southern Bldg. & Loan Assn. v. Page, 46 W. Va., 302, 33 S. E., 336.

“A conveyance of his interest by a vendor to a third person, or an assignment by the vendor of the executory contract, will as a general rule pass the right to receive the purchase money * * *.” 55 American Jurisprudence, 829, Vendor aq-d Purchaser, Section 409.

See, also, text and cited cases under the subtitle “Rights as between vendee and subsequent grantee or mortgagee as regards unpaid part of purchase price” at page 1519 of annotation in 87 A. L. R., 1505.

The application for a rehearing is denied.

Application denied.

Stevens and Hunsicker, JJ., concur.