text:
    In re Trusteeship of Parrett.

      (No. 4182
    — Decided June 1, 1949.)

      Miss Fritsie C. Kessler, for appellee trustee.

      Mr. Francis M. Thompson, for appellant exceptors.
   By the Court.

This is an appeal on questions of law from a judgment of the Probate Court of Franklin County, overruling exceptions to the final and partial accounts of Fritzie C. Kessler, successor trustee of the estate of Gordon J. Parrett, a missing person.

The trustee was appointed under the provisions of Section 10509-39, General Code (114 Ohio Laws, 411). Subsequently, the trustee was removed and Fritzie C. Kessler was appointed successor trustee. On October 1, 1941, the successor trustee filed an application in the Probate Court for authority to sell in partition the real estate in which Gordon J. Parrett held an undivided interest, alleging that a sale would be for the best interest of Parrett’s estate and would prevent waste. The application was granted. In June 1942, the exceptors herein filed an application for modification of the order, in which the exceptors raised the question of the legal capacity of the successor trustee to maintain an action in partition and claimed that it was not for the best interest of the estate. The Probate Court, after a hearing thereon, denied the application for modification and reserved the question relative to the legal capacity of the successor trustee to maintain the action in partition and the question of waste to the Common Pleas Court. Two demurrers were filed to the petition for partition in the Common Pleas Court, one by these exceptors, which were overruled.

Consequently, it appears from the record that the successor trustee was given authority by the court, which appointed her and to which she was required to account, to proceed to bring the action in partition. Her legal capacity to maintain the action was resolved in her favor by the Common Pleas Court when the question was tested on demurrer. The exceptors herein were content to abide by such rulings and no attempt was made to have the orders reviewed. However, we do not believe that the appellants in this proceeding are precluded from raising the question of the legal capacity of the successor trustee to maintain the action in partition. Appellants contend that under Section 10509-39, General Code, the successor trustee did not acquire such an interest in the property as would permit the bringing of a statutory action in partition under Section 12026, General Code. Section 10509-39, as it existed in 1941, provided that the Probate Court should appoint a trustee for a missing person “to collect and preserve his property until such time as he returns or an administrator or executor of his estate is appointed.” It is contended that the trustee did not become a coparcener or cotenant with the other owners of the property. We are not required to determine the question whether the successor trustee had the right to maintain a statutory action for partition under the provisions of Section 12026, General Code, for the reason that the nature of the action and the allegations made constitute an action for equitable partition. Equitable partition is an additional remedy to statutory partition. 30 Ohio Jurisprudence, 883, Section 52; 47 Corpus Juris, 363, Section 223 et seq.

Although the jurisdictional question could not be determined by the Probate Court, it is regarded as essential that the trustee obtain authority from the Probate Court to bring the partition action. See 40 American Jurisprudence, 100, Section 117. In the instant case such authority was granted. Upon application and proper showing, the Probate Court had authority to grant such order. Section 10504-66, General Code. Under Section 10501-53 13, General Code, the Probate Court may direct and control the conduct of fiduciaries, a definition of which includes trustees. Section 10506-1, General Code. See Horstman v. Ritter, 6 N. P., 470, 9 O. D. (N. P.), 413.

The appellants contend that since Gordon J. Parrett had been absent for a period of seven years he would be presumed to be dead and that the successor trustee would have no authority thereafter to act respecting his estate. This contention is not supported by the words of the statute (Section 10509-39) which expressly provided that the trustee shall act “until such time as he returns or an administrator or executor of his estate is appointed.”

Only one question is left for this court to determine: Was the compensation allowed to Fritzie C. Kessler as successor trustee and as attorney so excessive as to show an abuse of discretion? The amount of compensation allowed to a trustee and for legal services rendered in the interest of the trust is discretionary with the Probate Court. Section 10506-52, General Code. In the instant case the successor trustee was given authority not only to bring the partition action, but also to defend the second action filed in the Common Pleas Court by one of the exceptors herein. The time expended by her in these two matters as shown by an account of her services has not been questioned. The trial court allowed her the costs paid in the partition action and $1,000 for services rendered as successor trustee and as attorney in the two suits in the Common Pleas Court. It is conceded that she would be entitled to $126.78 or a part of the $1,000 allowed, as compensation for services about which there is no dispute. The legal question raised by' the exceptors, that is, the right of the successor trustee to any compensation whatever for services rendered in the two actions in the Common Pleas Court, being resolved against the exceptors, we are required to pass only upon the reasonableness of the compensation allowed for such services. In considering the amount of time expended and service rendered by Fritzie C. Kessler as successor trustee and as attorney for the trust we are not of the opinion that the amount allowed is so excessive as to show an abuse of discretion.

We are not unmindful that the compensation allowed when compared to the value of the estate seems excessive; nevertheless, the courts very properly compensate their fiduciaries for services legally rendered in the interest of the estate or trust even though a substantia] part of a very small estate is thus consumed. With respect to the reasonableness of the compensation allowed, each case must be determined on its own merits.

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

Judgment affirmed.

Miller, P. J., Hornbeck and Wiseman, J.7., concur.


source: Caselaw Access Project

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

license: Public Domain

text:
    Sams, Appellant, v. Albers Super Markets, Inc., Appellee.
    (No. 7085
    — Decided May 31, 1949.)

      Messrs. Waite, Schindel & Bayless and Mr. Philip J. Schneider, for appellant.

      Mr. John M. McCaslin, Mr. Robert Adair Black and Mr. Richard E. Pennington, for appellee.
   Ross, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Hamilton County, entered in conformity to a verdict instructed for defendant at the conclusion of all the evidence.

Certain facts are apparent from the record. The plaintiff was a customer of the defendant which operated a grocery store in which the customers served themselves. In the process of acquiring certain articles which plaintiff desired to purchase, she proceeded down one of the aisles containing various types of saleable merchandise. She slipped and fell when her foot came in contact with a quantity of syrup spilled out of a broken glass bottle. Pieces of glass still remained in the syrup on the floor. It is in evidence that an employee of the store had.made some effort to clean up the syrup and had placed boxes about the area after so doing, and that no one was stationed nearby to warn customers of any danger existing in the area.

The clerk testified:

‘ ‘ Q. What was the first thing that you had to do with anything in connection with that accident on that morning, Fred? A. Well, I saw the liquid had broken—
“Q. Keep your voice up and talk as loud as you can. A. I saw the bottle of liquid had been broken and I immediately picked up as much of the glass as I could with two pieces of cardboard and a broom and I put the pieces of glass and as much of the liquid as I could pick up and I put these large toilet tissue boxes around the area and I took the pieces of glass and the liquid that I had on the cardboard to the back room where I picked up a mop and rinsed it out with hot water several times and went back on the floor and saw the boxes had been moved and sort of pushed aside and Mr. Schmitt and the lady were standing there and I continued picking up the, mopping up the liquid that had been broken on the floor. * * *
“Q. Now about how long a period was it from the time you.put these toilet tissue cases around the spot and left to go to the storeroom and the time that yon got back with your mop? How long a period was it, would you say? A. Oh, two or three minutes.”

Now it is apparent that the defendant had notice of the existence of the syrnp on the floor, by reason of the knowledge of its employee of such fact.

It is also apparent that the defendant through its employee took certain measures to remove the syrup, which, obviously, judging by the result, was a menace to the safety of customers. It appears also that the employee left a portion of the syrup and glass on the floor and went elsewhere, and that some precaution was taken to guard the area. This is giving the defendant, rather than the plaintiff, the most favorable construction of the evidence.

It cannot be claimed, nor is it contended, that the presence of the syrup on the floor was not the proximate cause of plaintiff’s injuries. The contrary is true. The evidence is not in conflict upon this question. The plaintiff fell when she slipped on the syrup. There is no evidence indicating she was guilty of contributory negligence. So that the question presented is: Did the defendant, through its employees, use reasonable care to remove the cause of the injury to plaintiff, after becoming aware of its existence? This involves a consideration of two phases of the situation: (1) The measures used to remove the syrup and (2) the care taken to guard the area. Stated in another way, the question is whether the defendant, through its employees, used the care which a reasonably prudent person would use under the same or similar circumstances to prevent injury to the plaintiff. Certainly, this would be a question for the jury’s determination. The trial court considered that only a question of law was involved, and inferentially held by its decision that the care exercised by the defendant through its employees was adequate. In this the trial court usurped the function of the jury, which was well qualified to judge what, under the circumstances, was reasonable care. The average person serving on a jury would be well acquainted with the perils incident to walking about a grocery store and fully able to judge what would be reasonable care in avoiding harm to customers.

It is to be remembered that the function of the jury is not confined to the decision of factual conflicts, but also includes the duty to reach a determination between conflicting inferences from the evidence, even though the facts are not in conflict. See 39 Ohio Jurisprudence, 807, Section 186; Keesecker, a Minor, v. G. M. McKelvey Co., 141 Ohio St., 162, 47 N. E. (2d), 211.

The instant case is not one of those where the question involves constructive notice to the operator of the store or his employees through lapse of time after the menacing condition is created. As the defendant states in its brief, “the fact is that the boy Fred Schmidt knew of the spot before Mrs. Sams fell, so that it makes no difference as to what' the store manager is alleged to have said.”

This brings up the contention of the defendant, that certain statements of the clerk and store manager are hearsay and should have been excluded from the evidence. In this contention, the defendant is correct. The statements were narrative in character, relating to a situation existing some time before the plaintiff’s fall. Their admission is justified on no exception to the rule against the admission of hearsay evidence.

No comment has been made as to the Ohio cases cited, because they do not involve the problem here presented.

A case somewhat similar in principle is that of Smith-Kasson Co. v. Dirr, 41 Ohio App., 385, 180 N. E., 197. In that case, as here, the question was, did the defendant, through its employees use reasonable care to avoid injury to the plaintiff.

Such a question is one for the jury, and the court committed error, prejudicial to the plaintiff, in instructing a verdict for the defendant. The judgment is reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded.

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

Matthews, J.,

concurring. Although I concur in the judgment of reversal, I do not want to leave the impression that even if the uncontradicted evidence disclosed the placing of an adequate barrier around the danger spot, still the plaintiff would be entitled to have the issue submitted to the trier of the facts.

When the trial court instructs a vérdict for the defendant, the proper approach of a reviewing court is to inspect the record to determine whether there was substantial evidence to support all the elements of the plaintiff’s cause of action. And in determining that question, every reasonable inference in favor of the plaintiff must1 be drawn. If, when so interpreted, there is no substantial evidence to support one or more of the elements of the plaintiff’s cause of action, the judgment should be affirmed. If there is substantial evidence to support all the elements, the judgment should be reversed.

In the case at bar, the plaintiff’s testimony supported all the elements of her case and particularly negligence in the failure to guard the dangerous condition in the aisle. She was asked:

“Q. How about the areaway for walking? A. It was definitely not blocked off.
“Q. 1 want you to estimate if you can the width of the unobstructed walk-way. A. Oh, about a yard, about three feet — I would say, approximately. I cannot just say to the number of inches.”

(Decided June 20, 1949.)

In other parts of her testimony were statements that the aisle where this syrup had been spilled was not obstructed. Her son who was with her at the time corroborated her testimony as to the inadequacy of the guard or obstruction.

This testimony, it seems to me, makes it clear that the issue must be submitted to the jury, and, for that reason, I concur in the reversal.

Supplemental Opinion

Ross, P. J. Counsel for plaintiff request the court to pass upon their second assignment of error, to wit, “the court erred in excluding testimony regarding expenses, when under the particular circumstances of this case the wife could recover therefor.”

Ordinarily, the husband is primarily responsible for the household expenses and the necessary medical bills incurred by reason of his wife’s injury or illness. 21 Ohio Jurisprudence, 356, 365, Sections 29, 38. However, a wife living with her husband may assume primary liability for such expenses. Heym v. Juhasz, 45 Ohio Law Abs., 571; 13 Ohio Jurisprudence, 117, Section 42.

On retrial, the plaintiff should be permitted to prove, if she can, a personal obligation to assume the debts created by her injury and illness, independent of her husband’s primary liability for same.

It must appear, however, that special circumstances exclude application of the general rules hereinbefore noted.

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


author: By the Court.

text:
    Carson et al., Appellees, v. Beatley, Exrx., et al., Appellants.
    (No. 115
    — Decided December 1, 1948.)

      Messrs. Brand S Wagner, for appellees.

      Messrs. Seibert é Seibert, for appellants.
   By the Court.

This is an appeal on questions of law from a judgment entered on the verdict of a jury finding that the purported last will and testament of Ida Carson, deceased, was not her last will and testament.

Nine errors are assigned, the first of which relates to irregularities in the court and jury and abuses of discretion by the court, by which the defendants, appellants herein, were prevented from having a fair trial. Under this heading it is asserted, (one) that the court erred in dismissing prospective jurors from the panel without conforming to the provisions of Section 11419-46, General Code, that a juror to be excused should state his reason in open court and in failing to observe provisions of Section 1Í419-48, General Code, in that the judge, himself, selected the talesman necessary to make up the panel without a motion therefor by either party having been made, and (two) that the court erred in limiting to 30 minutes the final argument of counsel for the defendants to the jury. The first of these contentions is not well made because the irregularities, if any, were not made the subject of objection or exception nor called to the attention of the trial judge in any manner whatever by counsel prior to the impaneling and completion of the jury. The second is not well made for like reason, viz., that no objection or exception was noted to the act of the court. Without such bases the claimed errors are not exemplified and not presented on this appeal.

The second, third, and fourth assignments involve the action of the court in the admission and rejection of evidence. It is especially urged that the court erred in permitting Dr. Yogt Wolfe to testify over the objection of defendants that his statements were privileged communications under Section 11494, General 'Code.

The factual development upon the testimony of Wolfe is somewhat different from that which is found in any of the Ohio cases. For 15 years before the death of Mrs. Carson, Wolfe had been the family physician of the Carsons and had treated her at intervals until a comparatively short time before her death. In the late summer and fall of 1946, the doctor had called upon Mrs. Carson approximately 20 times and he had opportunities, no doubt, to observe Mrs. Carson’s mental condition on his professional visits whether or not he was treating her for any impairment of her mind. At one place in his testimony he says that his conclusions are based “partly on what he knew was the matter, whatever her trouble was,” and he says that the affliction affecting her mind was senile dementia. After developing the professional relations between the doctor and his patient, he was requested to state what her physical and mental condition was. Upon objection the question was restricted to her mental condition and he testified very fully and to the fact that she was not qualified to make a will when it was made. The notable deficiency in Wolfe’s testimony is that at no place, either upon direct or cross-examination, does it appear whether he was treating her for senile dementia. However, from other places in the record, and particularly from the testimony of Alice Beatley, it develops that the doctor attended Mrs. Carson after a fall which she suffered in August, 1946; on an occasion when she took her stimulant instead of a tonic which had been prescribed, and at another time for a digestive disturbance.

The cases in Ohio respecting the admission or rejection of evidence as to privileged communications may be classified generally in three groups — one, those in which it is clear that the testimony sought to be introduced related to physical or mental conditions which were material to an issue, and as to which the physician in that relation has secured information from examination of, communications between or from the patient during the professional visits of the doctor to his patient. Ausdenmoore et al., Exrs., v. Holzback, 89 Ohio St., 381, 106 N. E., 41; Baker v. Industrial Commission, 135 Ohio St., 491, 21 N. E. (2d), 593; Industrial Commission v. Strassel, 11 Ohio App., 234; Prudential Ins. Co. v. Heaton, 20 Ohio Law Abs., 454; Grand Lodge of the Brotherhood of Railroad Trainmen v. Daly, 11 C. C. (N S.), 464; John Hancock Mutual Life Ins. Co. v. Jennings, 17 Ohio Law Abs., 583; Russell v. Penn. Mutual Life Ins. Co., 70 Ohio App., 113, 41 N. E. (2d), 251; McKee, Admx., v. New Idea, Inc., 36 Ohio Law Abs., 563, 44 N. E. (2d), 697.

Second, those in which the physician, although attending the patient professionally, secured the information to which he testified by general observation independent of his professional relationship. Metropolitan Life Ins. Co. v. Howle, 68 Ohio St., 614, 68 N. E., 4; Heiselmann v. Franks, 48 Ohio App., 536, 194 N. E., 604.

Third, those wherein the testimony was related to a mental condition and the physician was attending the patient for a physical illness not connected with or related to any mental ailment. Meier v. Peirano, 76 Ohio App., 9, 62 N. E. (2d), 920; Olney v. Schurr, 21 Ohio Law Abs., 630.

The authority most relied upon by plaintiffs, appellees herein, and which was cited to the court at the time the evidence was admitted is that of Meier v. Peirano, supra. Judge Doyle in the opinion in that case says that the professional relationship had no connection with any mental disorder of the patient to which the physician testified. To like effect is the holding of this court, although no member of the court as now constituted, participated, in Olney v. Schurr, supra. It should be said that the Supreme Court has not ruled unless in the case of Metropolitan Life Ins. Co. v. Howle, supra, or expressed any opinion as to the soundness of the judgment in the Meier and Olney cases. See the opinion of Judge Barnes in John Hancock Mutual Life Ins. Co. v. Jennings, supra, in which he implies that the holding in Metropolitan Life Ins. Co. v. Howle, supra, has been in effect, reversed by Ausdenmoore v. Holzback, supra. See, also, the critical note on Heiselmann v. Franks, supra, in 2 Ohio Opinions, 389.

If it may be said that the illnesses for which Wolfe treated Mrs. Carson were those which are mentioned by Alice Beatley, then his testimony was admissible under the authority of Olney v. Schurr and Meier v. Peirano. Upon his own testimony, it may not be said whether he was treating Mrs. Carson for physical or mental illness, although any information which he received respecting her condition, physical or mental, was gotten only during his professional visits.

At common law there was no privilege accorded a patient as to any communication made to him by his physician. Such right is assured only by statute, as in Ohio. Before the privilege may be available it must appear that the testimony under consideration comes clearly within the terms of the statute, which must be strictly construed. Weis v. Weis, 147 Ohio St., 416, 72 N. E. (2d), 245, 169 A. L. R., 668.

We cannot say upon this record that it clearly appears that the testimony which was admitted comes within the privilege accorded by the statute. The most that could be said is that upon the doctor’s statement, the evidence may or may not have been the result of a privileged communication. Upon Mrs. Beatley’s testimony it was properly held to be admissible. In the situation developed we hold that the right to the privilege not being made definitely to appear, it was not erroneous to receive the testimony over the objection of defendants.

As the question of privilege is the only error of substance assigned, without further discussion, we hold that the judgment should be affirmed. It will be so ordered.

Judgment affirmed,.

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


author: Miller, J.

text:
    Parrish et al., Appellants, v. Stranahan, Appellee.
    (No. 4211
    — Decided February 4, 1949.)

      Mr. Buss Bo biwell, for appellants.

      Mr. Carl R. Valentine, for appellee.
   Miller, J.

This is an appeal on questions of law from the Municipal Court of Columbus. The petition sets forth two causes of action. The first is one in forcible entry and detainer, alleging that the defendant has “ever since the 1st day of June, A. D. 1948, unlawfully and forcibly detained * * etc.- The second cause of action is for rent of the premises from June 1, 1948, to June 9, 1948, on a rental basis of $45 per month. The prayer is for restitution and a judgment for $10.50 and costs.

The record discloses that, at the close of the plaintiffs’ case, the defendant offered to and did confess judgment for the plaintiffs on the second cause of action and tendered into court the sum of $135 in satisfaction of the rent to date. The defendant then entered a motion to dismiss the first cause of action which motion was sustained, the court citing Hoover v. Israel, 45 Ohio Law Abs., 490, 68 N. E. (2d), 90. The plaintiffs seem to agree with the legal principles announced therein, but are attempting to distinguish the case at bar upon the facts. The only difference in the facts seems to be that in the Hoover case the plaintiff was called to the witness stand and immediately the defendant confessed judgment upon the second cause of action, which was also for rent, while in the case at bar judgment was confessed after the plaintiffs had testified and rested their case.

It is the contention of the plaintiffs that the offer to confess judgment was not seasonably made and, therefore, the ruling of the court was erroneous. For a determination of this question it becomes necessary to examine the statutory law which is found in Section 11594, General Code, which provides:

“A person indebted, or against whom a cause of action exists, may personally appear in a court of competent jurisdiction, and, with the assent of the creditor, or person having such cause of action, confess judgment; whereupon judgment shall be entered accordingly.”

.It will be noted - that this section places no limit as to the time that an offer to confess judgment shall be made, so it must be presumed to mean that it may be made at any stage of the proceedings.

We are, therefore, of the opinion that the offer to confess judgment was seasonably made.

A further examination of the statute, however, discloses that “the assent of the creditor, or person having such cause of action” is required. The record discloses that the plaintiffs at no time consented to the entering- of the confession of judgment. They objected at the time and moved for a dismissal of the second cause of action, which motion was overruled. It is our conclusion that all the requirements of the statute were not met and that the judgment is invalid.

We find further that since there was no judgment, the plaintiffs’ motion to dismiss the second cause of action should have been sustained. An action may be dismissed by the plaintiff at any time before its final submission to the court. ’ Section 11586, General Code.

Even though the errors above enumerated appear in the record we think they were not prejudicial to the plaintiffs, and the court did not err in sustaining- the motion to dismiss the first cause of action at the close of the plaintiffs’ case. The only ground for the eviction appearing in the record is that of nonpayment of rent when due. The evidence discloses that the plaintiffs purchased the property in which the defendant resided, in January, 1948; and that sometime later plaintiff Hugh E. Parrish wrote a letter to the defendant advising her that the rent was payable in advance on the first of each month. She had been a tenant for approximately seven years before the plaintiffs acquired the property. No evidence was offered tending to show the terms of her contract on this point with her prior landlord. Under the federal rent control regulations the new landlord could not change the terms of the original contract without the consent of the administrator. Therefore, in the absence of such a showing the letter stating the due date was of no effect. She was entitled to remain in the premises under the terms of the contract with the old landlord and no evidence was offered showing- that under its terms the rent was payable in advance.

We find no error in the record prejudicial to the rights of the plaintiffs. The cause is ordered remanded with instructions that the confessed judgment be vacated; that the second cause of action be dismissed and that the judgment of dismissal of the first cause of action be affirmed.

Judgment accordingly.

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


author: Hildebrant, J.

text:
    Gallagher, Appellant, v. Lederer et al., Appellees.
    (No. 7110
    — Decided July 11, 1949.)

      IVIr. Walter K. Sibbald, for appellant.

      Mr. William P. Eohmamn, for appellee Ella Lederer.

      Mr. John E. Eeither, for appellee Emma Rick.
   Hildebrant, J.

By his amended petition, containing two separate causes of action, plaintiff herein seeks to have declared forfeited and cancelled of record a certain written agreement, granting a right of way for ingress and egress and all utility purposes over his eertain described premises, and for a permanent injunction against such continued use.

Separate demurrers to each cause of action were sustained by the court and, plaintiff not desiring to plead further, the petition was dismissed. That action of the court is the basis of the appeal here on questions of law.

In the statement of the first cause of action, plaintiff alleges, in substance, that defendant Lederer and husband threatened to sue him for great damages, and that, while he was not liable in damages to the Lederers, at that time plaintiff’s wife was seriously ill and he feared if such a suit were filed against him it would endanger her life, and he was thereby induced involuntarily to execute the right-of-way agreement.

The demurrer does not admit plaintiff’s legal conclusion that he was not liable in damages at the suit of the Lederers, nor does it admit his nebulous conclusion, amounting merely to his opinion, that the life of his wife was endangered.

As to what constitutes duress, it is stated in 9 Ohio Jurisprudence, 285, Section 52:

“Duress to avoid a contract must amount to a threatening of personal harm or a deprivation of liberty or of property.
“The fear of some impending peril or financial injury, or the mere fact that one’s act is reluctant, does not constitute duress. Duress involves illegality and implies that a person has been unlawfully constrained by another to perform an act under circumstances which prevent the exercise of free will, and it can never constitute fraud or duress to do as and what a person has a legal right to do, whatever the pecuniary consequences may be to those with whom he deals. ’ ’ Bart lett v, Richardson Co., 27 Ohio App., 263, 161 N. E., 403.

In 17 American Jurisprudence, 892, Section 17, it is stated:

“It is the well established general rule that it is not duress to institute or threaten to institute civil suits, or take proceedings in court, or for any person to declare that he intends to use the courts wherein to insist upon what he believes to be his legal rights. It is never duress to threaten to do that which a party has a legal right to do, and the fact that a threat was made of a resort to legal proceedings to collect a claim which was at least valid in part constitutes neither duress nor fraud such as will avoid liability on a compromise agreement. Hence, a deed is not given under duress when made as counter-security to sureties upon their threat that otherwise they will compel, by legal process, the settlement of the matters for which they are sureties, and a mortgage given to secure a creditor on a running account is not invalid for duress if given after threats are made to shut off the account and sue for the amount due.”

Plaintiff urges that under the modern doctrine the rule is changed. The so-called modern doctrine is stated in 17 Corpus Juris Secundum, 533, Section 175, as follows:

“Under the modern doctrine there is no standard of courage or firmness with which the victim of duress must comply at the risk of being without remedy; the question is merely whether the pressure applied did in fact so far affect the individual concerned as to deprive him of contractual volition; if it did there is duress, if it did not there is none.”

However, at page 535, Section 175, it is stated:

“The threat of civil litigation does not constitute duress, even under the modern doctrine, unless there is involved some actual or threatened abuse of process.”

We find therefore the demurrers as to the first cause of action were properly sustained.

In the statement of his second cause of action, plaintiff alleges that in addition to the sum of $200, the consideration for the granting of the easement was expressed and defined in the agreement as follows:

“It is agreed by both parties that there is to be no parking on said road and it is to be kept open at all times and free of any obstructions, and the driveway or driveways leading to the two buildings which are being constructed by Ella Lederer, or any future owners of the Lederer property, will be so made that vehicles using the road will be able to pass there. It is further agreed that upon the completion of the two buildings now being erected upon the Lederer property that the road will be restored in as good condition as it was prior to the beginning of said construction work, and said road from Sutton avenue to the end of the Lederer property shall thereafter be kept in good repair by both parties, except that Ella Lederer shall pay two-thirds of the upkeep after restoration, and Walter J. Gallagher shall pay one-third thereof, until such times as additional homes are built upon the Gallagher oí' Lederer properties, or lots sold from either tract, then the cost of maintenance shall be borne rat-ably and in the same proportion by those using the road, and neither party, nor their heirs or assigns shall be required to maintain said road if it shall at any time hereafter be dedicated and accepted for public use. it is agreed between the parties hereto, and their heirs and assigns, that they shall keep the weeds cut on said road, and it shall be sufficient if the weeds are cut twice each year seasonably, between June 1st and September 30th, further that Ella Lederer and her heirs and assigns shall cnt the weeds for a distance of 600 feet beginning at Sutton avenue, and Walter J. G-allagher and his heirs and assigns shall cut the weeds on the remaining 300 feet of said road * *

Plaintiff then alleges a breach of all the above conditions and that by constructing certain driveways defendants accumulate surface waters and deposit same on the right of way to its damage.

The court sustained the demurrers to the second cause of action on the authority of City of Cleveland v. Herron, 102 Ohio St., 218, 131 N. E., 489. That case involved a transfer of title by deed with no provision for a reverter, whereas the case at bar involves simply a contract for an easement over plaintiff’s land.

The major consideration consisted of the promises made by defendants which plaintiff alleges have not been kept. Whether the claimed breach amounts to an abandonment of the easement entitling plaintiff to a forfeiture or not, it would seem that plaintiff is entitled to some relief to secure performance of the agreement.

Defendants’ right to use the way granted is conditional on keeping the promises made in the grant. Holtsberry v. Bounds, 9 C. C. (N. S.), 510, 19 C. D., 257. That principle was applied by this court in Gustafson v. Ursales, 3 Ohio App., 136.

We find therefore it was error to sustain the demurrers to the second cause of action, for which error the judgment is reversed and the cause remanded.

Judgment reversed.

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


text:
    Amicon, Appellant, v. City Railway Co., Appellee.
    (No. 2022
    — Decided January 13, 1949.)

      Mr. Mason Douglass, for appellant.

      Messrs. Landis, Ferguson, Beiser & Greer, for appellee.
   By the Court.

This cause is submitted on motion of defendant-appellee to strike the bill of exceptions from the files for the reason that it was not filed in the trial court within the time prescribed by Section 11564, General Code, and to affirm the judgment of the trial court.

The record shows that the motion for new trial was overruled September 23, 1948, and that the bill of exceptions was filed in the trial court on November 19, 1948, or more than 40 days after the motion for new trial was overruled.

It is well established that the requirement of Section 11564, General Code, that the bill of exceptions be filed not later than 40 days after the overruling of a motion for new trial, is mandatory.

Counsel for plaintiff-appellant has assigned six separate grounds of error in his brief and states that the assignments of error may be summarized as embracing (1) the general charge of the court, (2) the special charges given on behalf of defendant and (3) the weight of the evidence. Manifestly a bill of exceptions is required to exemplify the errors assigned.

The plaintiff contends that Section 11564 permits the court to consider the question whether special interrogatories were properly submitted. Special interrogatory No. 1 was filed with the verdict and attached to the transcript of the docket and journal entries. The plaintiff contends further that this court may consider the exhibits in the case and determine whether special instructions to the jury and the general charge were proper. The point is made that the motion to strike the bill of exceptions from the files can reach only those matters required by Section 11564 to be incorporated in a bill of exceptions. The contention is made that the matters hereinbefore mentioned are not required to be incorporated in the bill of exceptions. The pertinent part of Section 11564 provides that “when the decision is not entered on the record, or the grounds of the objection do not sufficiently appear in the entry, or the objection is * * * for a new trial for misdirection to the jury, or because the verdict * * * is against the law and the evidence, or on the admission or rejection of evidence, the party excepting must reduce his objections to writing, and file them in the cause * *

Subject to certain exceptions which do not exist in this case, under this section all grounds of objection which do not appear upon the face.of the record must be reduced to writing and filed as a bill of exceptions. 2 Ohio Jurisprudence (Rev.), 618, 422, 428, Section 328. If there is nothing before the court except the pleadings, the court is limited to a review of errors presented by the pleadings. 2 Ohio Jurisprudence (Rev.), 578, Section 293. The record as made by the clerk consists of those matters mentioned in Section 11607, General Code, and does not include' the matters herein mentioned.

In the absence of a bill of exceptions, this court cannot consider the exhibits nor determine whether the trial court acted properly in giving or refusing to give special instructions to the jury or in giving the general charge. 2 Ohio Jurisprudence (Rev.), 628, 635, Sections 336, 340.

Assuming, without deciding, that the question whether the court acted properly in submitting special interrogatory No. 1 is properly before this court for determination, we would be required to find that the answer to the interrogatory is in accord with the general verdict; if the interrogatory consisted of a mixed question of fact and law, as contended by plaintiff, no prejudicial error resulted in its submission in view of a general verdict for the defendant.

The motion to strike the bill of exceptions from the files is sustained (Kennedy v. Mancini, 22 Ohio Law Abs., 607; McEvoy v. Ripley, 24 Ohio Law Abs., 678) and the judgment of the trial court is affirmed. Tenesy v. City of Cleveland, 133 Ohio St., 251, 13 N. E. (2d), 122; In the Matter of Lands, 146 Ohio St., 589, 67 N. E. (2d), 433.

Judgment accordingly.

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


text:
    Friedman, Appellee, v. The Cincinnati Local Joint Executive Board of Hotel & Restaurant Employees International Alliance and Bartenders International League of America et al., Appellants.
    (No. 6032
    — Decided November 26, 1941.)

      Mr. Fred Weiland and Mr. Alfred D. Meitus, for appellee.

      Mr. J. W. Brown, for appellants.
   By the Court.

This is an appeal on questions of law and fact from a judgment of the Common Pleas Court granting a permanent injunction, restraining the defendants from interfering with the plaintiff in conducting his business.

At the hearing in this court the plaintiff orally and in writing represented to the court that he no longer owned the business and on that ground moved to dismiss the appeal. That motion was overruled.

By agreement, the case was presented on the transcript of the evidence introduced at the trial in the Common Pleas Court and the stipulation that the plaintiff no longer owned the business.

As the sole basis for the granting of an injunction was and would be to protect the plaintiff in the enjoyment of his property rights, his nonownership of the described property at this time precludes this court from granting an injunction, and requires the dissolution of the injunction granted by the Common Fleas Court. An order to that effect may be entered.

There remains only the issue as to the court costs, and in this sort of a case the awarding of costs rests in the sound discretion of the court. In the exercise of this discretion it is not necessary to determine with exactitude the breadth of the injunction which should have been granted. If, under the law and the facts, the plaintiff was entitled to some of the relief awarded, then this court would not be justified in imposing the entire burden of the costs upon him, even though he was not entitled to all the relief prayed for and granted. We have examined the transcript of the evidence and the applicable law for that purpose only.

While it was held in Crosby v. Rath, 136 Ohio St., 352, 25 N. E. (2d), 934, by a divided court that there was no right to peaceful picketing in the absence of a trade dispute, in the restricted sense of a dispute, between the plaintiff and his own employees, that decision was nullified as an authority on that point by the decision of the Supreme Court of the United States in the case of American Federation of Labor v. Swing, 312 U. S., 321, 85 L. Ed., 855, 61 S. Ct., 568, the syllabus of which is:

“The constitutional guarantee of freedom of discussion is infringed by the common-law policy of a state limiting peaceful picketing by labor unions to cases in which the controversy is between the employer and his own employees.”

In Milk Wagon Drivers Union of Chicago v. Meadowmoor Dairies, Inc., 312 U. S., 287, 85 L. Ed., 836, 61 S. Ct., 552, decided by a divided court on the same day as American Federation of Labor v. Swing, supra, the court held that the right to peacefully picket would be forfeited by resort to such violence as would excite fear that violence would be resumed and thereby give to picketing a coercive quality beyond its legitimate persuasive force. In that case the evidence showed a continuous course of violence of various sorts which clearly stamped the general purpose of the defendants to intimidate rather than to persuade. It was in the light of that background that the court sustained the injunction against all picketing, but even then the court was careful to point to the condition on which the continuance of the injunction was predicated by saying: “It [the injunction] is justified only by the violence that induced it and only so long as it counteracts a continuing intimidation.”

The record in this case shows sporadic acts of violence and there is evidence that some of these acts are imputable to the defendants. However, there is no such continuous or systematic resort to violence as to indicate an intent to employ pickets as instruments of intimidation instead of agencies of persuasion.

All the cases hold that freedom of speech and of the press are among the liberties guaranteed and protected by the due process clause of the 14th Amendment. They are the fundamental freedoms and are the pillars upon which all others rest.

In our opinion the acts of violence shown in this record were not so blended with the picketing as to give color to the whole as an attempt at intimidation through force, violence and putting in fear, thereby working a forfeiture of the otherwise constitutional right of freedom to speak the truth. But we are of the opinion that the evidence of violent acts was sufficient to justify a reasonable fear of recurrence and to form the basis for an injunction against force and violence and limiting picketing in such a way as to guard against irritating incidents.

The plaintiff did not, in onr judgment, sustain all the allegations of his petition and was not entitled to the broad injunction for which he prayed. Some of the costs incurred resulted from the plaintiff seeking greater relief than that to which the law and the facts entitled him, and that, therefore, the costs in this case should he assessed equally against the parties.

The injunction is dissolved and judgment for one-half of the costs will be rendered against the plaintiff and one-half against the defendants.

Decree accordingly.

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


author: Ross, P. J.

text:
    Duemer et al., Appellees, v. Duemer et al., Appellants.

      (No. 954
    — Decided April 15, 1949.)

      Messrs. Andrews é Weiss, for appellees.

      Messrs. Kants, Holbroch & Bosch and Messrs. Fit-ton, Pierce é Black, for appellants.
   Ross, P. J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Butler County, rendered in a chancery case, in favor of the plaintiffs, upon motion for judgment on the pleadings.

The pleadings consist of a petition filed hy Louis Richard Duemer and Walter Corlliss Duemer, children of Walter A. Duemer, deceased, who was a brother of Louis J. Duemer, an answer and cross-petition of Louis J. Duemer and his wife, verified only by Louis J. Duemer, a reply of the plaintiffs, verified only by the next friend of Walter Corlliss Duemer, a minor, and an answer and cross-petition of the Second National Bank of Hamilton, Ohio, trustee under the will of Walter A. Duemer, deceased.

No motion for judgment on the pleadings appears in the bill of exceptions or among the original papers. However, the entry of the court, in which judgment is rendered on the pleadings, recites that such a motion was made by the plaintiffs.

In the petition it is alleged that Walter A. Duemer died December 19, 1944, leaving the defendant Hilda H. Duemer as his surviving spouse and the plaintiffs Louis Richard Duemer and Walter Corlliss Duemer as his sons and heirs at law; that Walter A. Duemer died testate; that his will was admitted to probate January 10, 1945; that, by his will, his entire estate was bequeathed and devised to the Second National Bank of Hamilton, Ohio, pursuant to a trust agreement, executed by Walter A. Duemer November 21, 1942; that' by the terms of such instrument the widow of decedent was to receive the income of such estate for life; that upon her death, the corpus was to be distributed to plaintiffs; and that on June 11, 1940, the decedent ‘ ‘ signed a paper writing designated an agreement, providing that certain real estate hereinafter described and of which he was then an owner should be sold to the defendant Louis J. Duemer for a cash consideration of one thousand ($1,000) dollars, the agreement to be effective and the sale to be made whenever the seller shall cease to operate his business known as Louis Duemer & Sons or shall die, that such instrument was signed by the decedent and his then wife, the defendant Louis J. Duemer and his wife.”

The real estate involved is then described in detail.

Further allegations of the petition are that the only consideration for the agreement to sell such real estate for the price named was “the execution of a similar instrument by the said Louis J. Duemer and the other parties to the agreement” executed by the decedent, his then wife, and Louis J. Duemer and his wife, “by which it was provided that the said Louis J. Duemer should sell his one-half (1/2) interest in said real estate, being the other 1/2 interest therein to the said Walter A. Duemer for one thousand ($1,000) dollars in cash, to be effective and to obligate the parties whenever the seller should cease to operate his business known as Louis Duemer Pattern Works or shall die. ’ ’

The petition contains further allegations charging that the consideration of $1,000 is grossly inadequate, that the agreement is unenforceable in law because of the death of Walter A: Duemer, that the agreement is without consideration and constitutes a fraud upon the plaintiffs, and that the widow of the decedent and the Second National Bank of Hamilton, Ohio, both feel obligated to carry out the terms of the agreement and will do so unless restrained by order of the court.

For a second cause of action, the plaintiffs charge that the agreement executed by decedent was secured by duress and undue influence of the defendant Louis J. Duemer at a time when the decedent was in poor health and lacked mental capacity to understand the nature, extent and meaning of such instrument.

For a third cause of action, the plaintiffs charge that by reason of the acts of the defendants they have been deprived of the rent of the premises involved.

This petition was verified only by the next friend of Walter Corlliss Duemer.

In the answer and cross-petition of the defendants Louis J. Duemer and his wife, Carrie S. Duemer, the death of the decedent, the probate of the will, the survival of his widow and the plaintiffs as his sons and heirs at law and the execution of the agreement are admitted. Other allegations in the petition are denied generally.

For their first cause of action of their cross-petition, defendants Louis J. Duemer and his wife allege the execution of an agreement by the decedent, a copy of which is attached to the answer and cross-petition and made part thereof.

This agreement has been fully quoted in the syllabus and will not be here repeated.

It is alleged further that the defendants have been ready, willing and able to perform their part of the agreement ever since the death of the decedent and are now so ready, able and willing to perform, and that their demands for performance have been refused.

For a second cause of action, the defendants allege further that decedent and the defendant Louis J. Duemer were partners doing business as the Louis Duemer Pattern Works and Louis Duemer & Sons; that on December 23,1939, such partnership was voluntarily dissolved; that by the terms of the dissolution agreement the defendant Louis J. Duemer continued to operate that department of the former partnership known as Louis Duemer Pattern Works and Walter A. Duemer continued to operate that department of the former partnership known as Louis Duemer & Sons engaged in making furnaces; that by virtue of such agreement the defendant Louis J. Duemer was to have the exclusive right to occupy the north and south second floors and the north first floor of the building located on the premises described in the petition; that Walter A. Duemer was to have the exclusive use of and occupy the south first floor and the east part of the first and second floors of such building and the frame warehouse connected therewith; and that the plaintiffs and the decedent’s wife have ever since the date of decedent’s death occupied the premises so allocated to Walter A. Duemer. Prayer is made for an amount equivalent to the rent of such last described premises.

A demurrer of the plaintiffs was sustained as to this second cause of action, but the defendants filed no amended cross-petition. The court reversed the demurrer against the plaintiffs’ third cause of action in its search of the record for the first defective pleading. This cause of action is for recovery of rent. The demurrer was upon the sole ground that no cause of action is stated in the cross-petition of the defendants Louis J. Duemer and his wife. A demurrer to a cross-petition does not' search the record.

No. amended petition was filed.

The plaintiffs filed “an answer to cross-petition” of the defendants Louis J. Duemer and wife. This also was verified only by the next friend of Walter Corlliss Duemer. In such pleading, the plaintiffs admit that the only consideration for the agreement executed by decedent was a similar instrument described in the cross-petition of Louis J. Duemer and wife.

It is alleged further that the consideration of $1,000 is grossly inadequate. Otherwise, such pleading is a general denial of the allegations of the cross-petition of Louis J. Duemer and wife.

An answer and cross-petition was filed by the testamentary trustee, in which the essential facts involved are admitted and prayer is made for partition if the court found the agreement of the decedent with the defendant Louis J. Duemer to be ineffective.

The plaintiffs began the trial and introduced certain evidence and thereupon made a motion for judgment upon the pleadings.

The trial court granted this motion and entered judgment in which it was found that, notwithstanding the agreement of the decedent with his brother, title to one-half of the premises vested in the testamentary trustee and the other half was at all times vested in Louis J. Duemer, and that the title of the entire property should be mutually quieted against any claims arising by virtue of the agreements executed by decedent and bis brother, the defendant Louis J. Duemer. The court decreed dismissal of the cross-petition of Louis J. Duemer and his wife, granted the prayer of the plaintiffs, cancelled the contract involved and granted partition.

An application, which was in effect a motion for new trial was filed.

This action was commenced in November 1945.

Section 11575, General Code, was amended October 11, 1945, redefining a new trial, so that such new trial applied to issues of law as well as of fact, since a new trial was no longer limited alone to issues of fact.

The motion was, therefore, properly and duly filed, and the motion to dismiss the appeal, because the notice of appeal, although filed within 20 days from the overruling of such motion for new trial, was not filed within 20 days from the judgment of the court, is overruled.

Other procedural defects apparent from the foregoing recital are passed, as consideration of (he problems presented by the final action of the trial court are now considered.

It is apparent from the judgment of the trial court in this chancery action, which seeks cancellation of a contract and partition, that the court considered the contracts involved so far as they affected the rights of the parties after death testamentary in character and unenforceable, because lacking the statutory requirements for testamentary disposition of a decedent’s estate.

In so concluding the trial court was in error, as is evident from the overwhelming weight of authority hereinafter noted.

Liability based upon mutual covenants or promises has been recognized at common law, even when such promises were oral, ever since Slade’s Case (1603), 4 Coke, 92 b, 76 Eng. R., 1074, and long before that date, when such obligations were contained in contracts under seal.

There cannot be the slightest doubt that the parties to these agreements entered into binding contracts, in which the obligations incurred were made absolutely irrevocable after execution of the instruments.

Only one contingency stipulated presents a situation where the execution of the obligations of one party may1 necessarily fall upon his personal representatives or heirs. Such being the case, such obligations take precedence pro tanto over the bequest and devise to the testamentary trustee, and it would appear from certain of the allegations, supra, that this is recognized by the widow of decedent and the decedent’s testamentary trustee.

The language of the contracts applicable to the contingency of death has no effect except to postpone final execution of the irrevocable obligation assumed by the decedent until after his death. That such provision is not testamentary in character and is found in many enforceable contracts other than partnership contracts where it is also recognized as binding upon the personal representatives and heirs is apparent from the authorities hereinafter noted.

As to the amount of the consideration to be paid by the surviving party to the contract, this is incidental and inconsequential from the standpoint of consideration which in this case was the complementary obligation assumed by the other party in executing a mutual identical contract. The pleadings show that such is the understanding of the parties to this action. The contracting parties agreed upon the sum to be paid and their agreement on this point was irrevocable and binding from the time the contracts were executed.

As to the objection that the contract calls for a warranty deed, it is a rule that the language used in a contract shall be construed, if possible, so as to give effect to the intention of the parties, and that from the terms of the contract the court must assume as nearly as possible the positions of the parties. Evidence aliunde is not here permitted, nor is the same necessary to ascertain such intention. It is apparent obviously that the reference to a warranty deed applies only to the decedent and his wife and to the alternative contingency — the cessation of the business of the decedent before death. In any event if this were not apparent the surviving party might waive such.

In 57 American Jurisprudence, 67, Section 40, it is stated:

“The undertaking of a party to a contract is made in consideration of something to be paid or done by or on behalf of the other party, so that the obligation to do and the right to require performance are reciprocal. A will, on the other hand, is simply a statement of a purpose or wish of the maker as it exists at the time. As often as his purpose or wish changes, he may change the expression of it. The binding force of a contract comes from the aggregatio mentium of the parties. The binding force of a will comes from the fact that it is the last expressed purpose of the testator in regard to the disposition of his property after his own death. A contract creates a present, enforceable, and binding right over which the promisor has no control without the consent of the promisee, while a testamentary disposition operates prospectively and is wholly ambulatory until the testator’s death. Although contracts and wills are so unlike, they may be and sometimes are combined so as to give a testamentary character to what purports to be a contract, or to convert what purports to be a will into an irrevocable agreement. It affords no insurmountable objection to the testamentary character of an instrument that it contains provisions of a contractual nature. Thus, a writing reciting that it is executed and founded on a designated consideration may be upheld as a will.
“The dominant purpose of the maker of an instrument as manifested therein controls in determining whether the instrument is a contract or a will. Whether any given writing is a will or a contract must be determined by the character of its contents, rather than from its title or any formal words with which it may begin or conclude, but words which do not change the legal effect of the instrument may, nevertheless, be significant by revealing the intention with which it was made. The rule is that if the obligation prescribed by an instrument in the form of a written contract is revocable and the vesting of an interest or title thereunder is postponed until the death of the obligor, the instrument is testamentary in character and ineffective unless executed in the manner prescribed by statute for the execution of wills. On the other hand, a contract does not take on a testamentary character merely because its performance is postponed until after the death of the maker and devolves upon his representatives. The statute of wills does not prevent an owner of property from stipulating by contract for the disposition of his property at the time of his death. The fact that the performance of a contract for the direct benefit of a third person, expressly designated, is postponed until the death of the promisee does not affect the third person’s rights. An unconditional promise to pay, made to mature at or after the death of the promisor, is none the less a present, valid, and binding promise because at the same time or in the same instrument he expresses his purpose, or makes the further promise, to make testamentary provision for meeting and discharging his promise to pay.”

See, also, 12 American Jurisprudence, 857, Section 302; 41 Ohio Jurisprudence, 266, Section 7; 40 American Jurisprudence, 347, Section 312.

Incidentally, it does not appear why partners should be able to avoid the statute of wills by inter vivos contracts, and others not.

See, also, 17 Corpus Juris Secundum, 653, Section 271, note 78.

In re Howe’s Estate, 31 Cal. (2d), 395, 189 P. (2d), 5, 1 A. L. R. (2d), 1171, is an excellent case supporting the conclusions herein reached. At page 1178 of the A. L. R. is found an exhaustive annotation of that case, in which are gathered the decisions of the courts upon every phase of this question. Any detailed consideration of those supporting cases would amount to a wholly unwarranted and unnecessary extension of this opinion. Reference to the fully detailed consideration of such cases will develop ample support also for the conclusions here-reached. On page 1184 of the A. L. R. it is stated:

“Upon examining the cases as a whole, it becomes evident that, as a general principle, supported by.the marked weight of authority, a provision in an otherwise sufficient contractual instrument, fixing the time for payment or performance at, or at a prescribed time after, the death of the party promising such payment or performance, ordinarily does not impair the instrument’s validity as a contract. General support for this proposition is derived from the following cases * *

It will be noted that on page 1187 of the A. L. R. the following Ohio cases are cited :

Ohio Wesleyan Female College v. Higgins (1864), 16 Ohio St., 20. See, also, Judy v. Louderman (1891), 48 Ohio St., 562, 29 N. E., 181, and Hooker v. Wittenberg College (1873), 13 Ohio Dec. Reprint, 946, 2 Cin. Super., 353.”

Reference to those cases will show that the Ohi® rule is in line with the weight of authority.

The plaintiffs rely somewhat upon the case of Needles, Exr., v. Needles, 7 Ohio St., 432, 70 Am. Dec., 85. An examination of that case will show that the decision is grounded on want of consideration, the alleged consideration for the post-mortem execution being executed gifts to the promisor. See 1 A. L. R. (2d), 1212, for comment on that case. On page 1210, ibid., the “opposing view”, led by New Jersey, is considered. The New Jersey case of American University v. Conover, 115 N. J. Law, 468, 180 A., 830, cited by the plaintiffs, is noted as being in the minority column. See 1 A. L. R. (2d), 1204, and 1218, where the case of Knoll v. Hart, 308 Pa., 223, 162 A., 228, is considered. As to that type of case, it is stated:

“As heretofore indicated (sections 13 and 14, supra), there is more difference of opinion upon the present general subject where instruments relating to property are concerned than exists as to instruments merely calling for post-mortem payment of money. The line of division between testament and contract is not so definitely agreed upon where title to property is at stake.
“Clearly, however, the factors of revocability and ineffectiveness prior to the maker’s death will serve to fix an instrument’s character as testamentary rather than contractual, whether it relates to money or property rights. So it has been stated that the rule is that if the obligation prescribed by an instrument in the form of a written contract is revocable and the vesting of an interest or title thereunder is postponed until the death of the obligor, the instrument is testamentary in character and ineffective unless executed in the manner prescribed by statute for the execution of wills. ’ ’

We now take up the cases cited by the plaintiffs in support of their position, not hereinbefore considered.. Reliance is placed upon the case of American University v. Conover, supra. Aside from the fact that the facts in that case are radically different from those in the case at bar, the holding is in conflict with Ohio Wesleyan Female College v. Higgins, Exr., 16 Ohio St., 20. It will be noted also that the New Jersey case is included in the minority column (1 A. L. R. [2d], 1188, 1204, 1206, 1210, 1218).

Knoll v. Hart, supra, if actually in the minority column, is distinguishable upon the basis of past consideration and similar in that respect to Needles v. Needles, supra. The position of the Pennsylvania courts is shown in Specht’s Estate, 268 Pa., 384, 112 A., 92. See 1 A. L. R. (2d), 1253.

In In re Lloyd’s Estate, 256 Mich., 305, 239 N. W., 390, an ordinary bill of sale was proffered as a will and held not to be such.

In Ireland v. Lester, 298 Mich., 154, 298 N. W., 488, quoted from hereinafter, mutual contracts similar in many respects to the instruments here under consideration were held to be contractual and not testamentary.

Hydrick v. Hydrick, 142 S. C., 531, 141 S. E., 156, recognizes the general rule and is found in the majority column (1 A. L. R. [2d], 1199). An examination of that case will show the promise was tentative and based upon a past consideration falling within the scope of the case of Needles v. Needles, supra. See 1 A. L. R. (2d), 1223.

Herren v. Herren, 152 Okla., 281, 4 P. (2d), 92, involved a deed, transfer of title taking effect upon death of grantor. The decision was by a divided court. Oklahoma is in the majority column, as will appear from the case of Farmers & Merchants Natl. Bank v. Lee, Exrx., 192 Okla., 9, 132 P. (2d), 931, in which a mother, for a valuable consideration, endorsed an order to her executors to pay a note payable by her son. The endorsement was held contractual and not testamentary. Such was the case in Judy v. Louderman, 48 Ohio St., 562, 29 N. E., 181. See 1 A. L. R. (2d), 1229, 1230.

Gillespie v. Gillespie (Mo.), 289 S. W., 579, also cited by plaintiffs, involved a deed to a wife at request of her husband. The use of the property was retained for life. It was held that title passed to wife, although possession was retained by husband during life. That case seems to support the majority rule; that Missouri is in that column is shown by Green v. Whaley, Adm., 271 Mo., 636, 197 S. W., 355. See 1 A. L. R. (2d), 1198.

Cohn v. Klein, 209 Cal., 421, 287 P., 459, involved the construction of a deed containing a provision postponing effectiveness until death of grantor. The instrument was held testamentary in character. The court noted the case of Montgomery v. Reeves, 167 Ga., 623, 146 S. E., 311, contra. The case of In re Howe’s Estate, supra, the principal case upon which the A. L. R. annotation on the subject is predicated, shows California in the majority column.

Jennings v. Jennings, 173 Ga., 428, 160 S. E., 405, is directly in line with the majority rule. It was held therein that a deed postponing possession until death of grantor was valid and not testamentary. See, also, 1 A. L. R. (2d), 1185, 1197, 1201.

Osgood v. McKee, 343 Ill., 470, 175 N. E., 786, is in line with the majority rule, and, contrary to some authorities noted, holds a deed valid, where delivered to a third person, although the deed was not to be delivered to grantee until grantor’s death. See 1 A. L. R. (2d), 1185, 1197.

Purcell v. Baskett, 121 Kan., 678, 249 P., 671, involved a deed which provided that it was void until the death of grantor. That Kansas is in line with the majority rule will be seen from the cases noted. 1 A. L. R. (2d), 1185, 1198, 1208. See, in particular, Webster v. Camp, 107 Kan., 235, 191 P., 284, noted in 1 A. L. R. (2d), 1189.

Ferrara v. Russo, 40 R. I., 533, 102 A., 86, L. R. A. 1918B, 905, seems to be in the minority column. See 1 A. L. R. (2d), 1210.

As opposed to those cases are the long line of cases collected in the A. L. R. notes. Two of those cases seem worthy of special comment.

In Ireland v. Lester, supra, the court held:

“1. * * * A bilateral contract consisting of mutual promises to sell or buy, to be determined in the future by an event sure to occur, is not terminated by the death of either party unless the contract is personal in nature.
“2. * * * The fact that the death of one of the parties is to determine the time of performance does not of itself make the agreement testamentary for it is as proper to set death as a date for performance as any other time that could be stipulated.
“3. * * * An instrument that is testamentary in character operates only upon and by reason of the death of the maker, and, until then, it has no effect or force, the ambulatory quality being a characteristic of wills.
“4. * * * * A valid contract does not fall into the testamentary class simply because it is performable after the death of one of the parties.
$ * #
“7. * * * Under contract between partners whereby upon death of either during continuance of contract, decedent’s interest in partnership business should be sold to survivor at an agreed sum and partners stated when contract was signed that the widow of the first decedent was to receive the full consideration and no change was made in contract before one of them died, leaving issue by forme]' wife in addition to widow, deceased’s widow could enforce it as a third party beneficiary as her rights vested thereunder upon its execution * *

In Ga Nun v. Palmer, 216 N. Y., 603, 609, 111 N. E., 223, Judge Cardozo stated:

“The first clause, it is said, is part of a contract; the second, part of an informal will. The first, it is said, gives rise to an irrevocable obligation; the second is the expression of a transitory purpose, which may be canceled over night. We find no warrant for this dismemberment of the contract. On the one side we have the plaintiff’s promise to care for Miss Sands during life; on the other we have the promise of the reward for the service. There is nothing to show that one part of this reward was to be irrevocable, and that another was to be revocable. Each promise in its entirety is the consideration for the other. It makes no difference in such circumstances that part of the reward is payable after death. The character of the promise is not changed by the time fixed for its performance (Hegeman v. Moon, 131 N. Y., 462; Carnwright v. Gray, 127 N. Y., 92; Robb v. Washington & Jefferson College, 185 N. Y., 485). It makes no difference that the reward may seem to be extravagant in amount. Unless there is fraud or undue influence, the inadequacy of the consideration does not destroy the obligation of the contract (Earl v. Peck, 64 N. Y., 596; Matter of Bradbury, 105 App. Div., 250, 255). It makes no difference that the contract is for the payment of a specific fund, to be found in a specific place. If the promisor has made away with the fund, she must answer for the breach by the pay-; ment of an equal sum as damages (N. Y. News Publishing Co. v. Nat. Steamship Co., 148 N. Y., 39; Simon v. Etgen, 213 N. Y., 589). The canon of construction which prefers the meaning that will sustain rather than one that will defeat an instrument, reinforces these conclusions. Treat the promise as testamentary, and it is not effective for any purpose; there is no suggestion that the writing was executed with the formalities requisite for wills. Treat it as contractual, and it is precisely adapted to the attainment of the end in view. In fine we discover in this writing all the elements of a valid contract, and we are not at liberty, for the-purpose of destroying its validity, to construe it as anything else.”

It would appear, therefore, that the motion of the plaintiffs for judgment on the pleadings should have been overruled.

The judgment of the trial court is reversed, and the cause is remanded to the Court of Common Pleas of Butler County for further proceedings according to law.

Judgment reversed.

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


text:
    The State of Ohio, Appellee, v. Shyrock, Appellant.
    (No. 7114
    — Decided July 11, 1949.)

      Mr. Carson Roy and Mr. Rarry S. Schwartz, for . appellee.

      Mr. Robert E. Broohs, Mr. Louis C. Capelle and Mr. Robert L. Young, for appellant.
   Hildebrant, J.

On his plea of guilty to the felony of stabbing to wound, defendant-appellant received the following sentence:

“It is therefore ordered by the court that sentence herein be deferred and the defendant, Leon Shyrock, placed on probation for a period of five years.
“It is further ordered by the court that the defendant herein pay the costs of this prosecution, and to make restitution.”

Thereafter, defendant was convicted of a charge of abuse of family and drunkenness and received a workhouse sentence and fine. This was reported to the trial court as a violation of the former probation, and, after a full judicial inquiry and hearing upon the reported violation, the evidence, and the statements of the defendant, the court revoked the previous probation and sentenced the defendant to the penitentiary.

Defendant contends the court had no power to revoke the probation, except for a violation of the express conditions contained in the journal entry in this case, i. e., “pay the costs of this prosecution and to make restitution.”

The power of the court to grant probation is statutory and regulated by Section 13452-1 et seq., General Code.

In setting forth the procedure for probation and providing for a release from custody on probation, Section 13452-4, General Code, provides that the probationer “shall continue under the control and supervision of the county department of probation or the state Department of Public Welfare, as the case may be, to the extent required by law, the terms and conditions of the order of probation, and the rules and regulations governing said department of probation.”

Section 13452-5, General Code, provides that if the probationer “is confined in any institution for the commission of any offense whatever, the probation period shall cease to run until such time as he is brought before the court for its further action under this act.”

Section 13452-6, General Code, provides for the arrest, without warrant, of the probationer by any probation officer during the period of probation, as was done in this case.

The syllabus in State v. Skypeck, 77 Ohio App., 225, 65 N. E. (2d), 75, is:

“1. The right of a defendant, who has been convicted of, or has plead guilty to a criminal offense, and who has been afforded probation as provided by Sections 13452-1 to 13452-11, General Code, inclusive, to continue as a probationer, is within the sound discretion of the court.
“2. Before the court may terminate an order of probation and. sentence the defendant upon such judgment or plea, the defendant is entitled to be heard upon a “judicial inquiry’ in open court on the question of whether he has failed to meet the conditions of the order of probation.”

When imposition of sentence is deferred and a defendant is released from custody upon probation, the statutes regulating such procedure are as much a part of the terms and conditions of each probation as are an}' additional express conditions imposed by the court, deemed appropriate to the particular case.

The approved procedure having been followed here, and the conditions imposed by Section 13452-5, General Code, having been violated by the defendant, the court was clearly within its power in revoking the probation.

The judgment is affirmed.

Judgment affirmed.

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


text:
    Davis, Appellant, v. Moor et al., Appellees.
    (No. 3951
    — Decided January 25, 1949.)

      Mr. B. N. Murray, for appellant.

      Mr. Paul R. Gingher, for appellees.
   By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County, sustaining a general demurrer to the plaintiff’s amended petition.

Plaintiff was riding as a guest in an automobile owned by the defendants, which at the time was being driven by defendant Hazel M. Moor.

Plaintiff alleges she was seated in the front seat of the automobile to the right of the driver and that “an unleashed and unerated dog belonging to said defendants, and up to that time concealed in a pile of soiled laundry and wearing apparel in the rear seat, suddenly sprang to the front of said automobile upon the neck of the plaintiff. Plaintiff states further that the driver, in attempting to remove the dog from this plaintiff, abandoned the steering gear, increased the speed of said automobile causing it to crash, ’ ’ etc. Plaintiff alleges further that her injuries and damages were caused by “the defendant, Hazel M. Moor, wantonly abandoning tbe control of the automobile in which she and the plaintiff were riding.”

In. an action brought under the provisions of Section 6308-6, General Code, the guest must allege facts in his petition showing wilfulness or wantonness, else the pleading is demurrable. The use of the word, “wanton,” is not alone sufficient to bring the action within the statute. Vecchio v. Vecchio, 131 Ohio St., 59, 64, 1 N. E. (2d), 624; Universal Concrete Pipe Co. v. Bassett, 130 Ohio St., 567, 573, 200 N. E., 843, 119 A. L. R., 646; Thomas v. Foody, 54 Ohio App., 423, 425, 7 N. E. (2d), 820.

The sufficiency of the amended petition rests on the charge of wanton misconduct which was defined in Tighe, a Minor, v. Diamond, 149 Ohio St., 520, 526, 80 N. E. (2d), 122, as follows:

“ ‘Wanton misconduct’ comprehends an entire absence of all care for the safety of others and an indifference to consequences. Higbee Co. v. Jackson, 101 Ohio St., 75, 128 N. E., 61, 14 A. L. R., 131. It implies a failure to exercise any care toward those to whom a duty of care is owing when the probability that harm will result from such failure is great, and such probability is known to the actor.” (Emphasis ours.)

In our opinion the amended petition does not allege facts sufficient to constitute a cause of action under the guest statute.

We have passed on the legal question raised, although upon examination of the record we do not find that the appeal is taken from a final order. An order sustaining a general demurrer to the petition without dismissing the action is not a final order.

Judgment accordingly.

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


author: Hornbeck, J.

text:
    Ex parte Briggs.
    (No. 2057
    — Decided June 24, 1949.)

      Mr. Louis C. Capelle, for petitioner.

      Mr.'Cecil E. Ediuards, for respondent James Bus-sell,' Superintendent, City of Dayton Workhouse.
   Hornbeck, J.

The action is in habeas corpus praying for the discharge of petitioner from the workhouse of the city of Dayton, Ohio, to which he was committed from the Municipal Court of Dayton.

The petition recites that petitioner was unlawfully imprisoned and restrained by virtue of a “certain pretended instrument of writing of which a true copy is hereto attached, marked ‘A,’ ” etc. No such exhibit is attached to the petition but upon the averments of the answers and statements of defendant in his brief, which are binding upon him, it appears that petitioner was brought to trial upon a complaint charging that he “did unlawfully cause a disturbance in the city of Dayton, to wit: At Germantown street and Hawthorne street by disorderly behavior, contrary to Section 1036 of the General Ordinances of the city of Dayton, Ohio,” and charging further that he had been four times previously convicted and sentenced to the workhouse of the city of Dayton for offenses, three of which were committed in the city of Dayton, setting out the numbers of the cases, the dates of the convictions and sentences and the offenses by name and, further, that “the said Joe Briggs having also been convicted and sentenced by the Municipal Court of Lima, Ohio, on a charge of entering an inhabited house on November 24, 1947. Contrary to Section 4131, Habitual Offender Act, G. C. of Ohio.”

The entry effectuating the sentence of the court was not on file at the time the petitioner was turned over to the defendant but was spread upon the record of the court nunc pro tunc as of the 26th of December, 1947, the date of the sentence. This entry sets out substantially the language of the charge, makes a finding that the defendant had entered a plea of guilty, as charged, and carries the sentence for a term of three years in the workhouse of the city of Dayton. It is the claim of the petitioner that he is held on a void commitment in that neither the charge to which he entered his plea nor the sentence authorized his detention because the charge did not state an offense as defined in Section 4131, General Code.

The defendant does not meet this claim in his brief by argument or authority but asserts that on February 3, 1949, petitioner filed his petition in habeas corpus in the Court of Common Pleas of Montgomery County, which resulted in a denial of the writ and that no appeal was taken from that decision. If it is the purpose of defendant to raise the question of res judicata, it can not be done by merely stating in a brief what defendant understands the facts to be. Res judicata should be set up in a formal way by proper pleading and all the material elements of that defense should be stated. In support of his position defendant cites Ex parte Pharr, 10 Ohio App., 395. That case holds that if a judgment in a criminal case is erroneous, but not absolutely void, it can not be collaterally attacked. We are also cited to a part of one sentence from Judge Crawford’s decision denying the relief sought which, without more, manifestly is of no assistance to us. However, we have had access to Judge Crawford’s opinion in the habeas corpus proceeding and find that it is grounded upon the proposition that there was no evidence whatever offered to support the petition. Manifestly, this is of no benefit whatever to the defendant because the court made no adjudication upon any facts. As a matter of fact, plaintiff would have been in the same situation in this court had not the defendant by answer and brief provided enough factual matter to afford the basis of an adjudication. The other cases cited by defendant go no further than the one which we have discussed.

It is said in 20 Ohio Jurisprudence, 508:

“The refusal of a court to issue a writ of habeas corpus is not a bar to the consideration of another application in another court, nor is the decision of a court or officer upon a habeas corpus proceeding, refusing to discharge a prisoner, a bar to the issuing, by another court or judge, of another writ, based upon the same facts.” Citing In re Luetzler v. Perry, Sheriff, 18 C. C., 826; In re Mullaney, 8 N. P., 49, 10 O. D. (N. P.), 419.

The determinative question here is well projected by the language of the Code, Sections 12161 and 12165, G-eneral Code. The former section provides that “A person unlawfully restrained of his liberty * * * may prosecute a writ of habeas corpus, to inquire into the cause of such impidsonment * *

Section 12165, General Code, provides:

“If it appears that the person alleged to be restrained of his liberty is in custody of an officer * * *, or by virtue of the judgment or order of a court of record, and that the court or magistrate had jurisdiction to * * * render the judgment, or make the order, the writ shall not be allowed * *

Did the municipal judge have jurisdiction to sentence the petitioner as an habitual offender? This requires consideration of the charge. Manifestly, the judgment can rise no higher than the offense charged and if no offense is charged no valid commitment to the workhouse could have been made.

The section under which the prosecution was had is Section-4131, General Code, providing:

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

It will be noted that certain elements of the offense are that prior to the conviction of a fourth misdemeanor it shall appear that the offender has been three times convicted, sentenced and imprisoned in a workhouse. The affidavit charges the three convictions and sentences but is silent as to any imprisonment in a workhouse. Is this omission vital to the charge of a violation of Section 4181, General Code? In our judgment it is.

As early as Blackburn v. State, 50 Ohio St., 428, 36 N. E., 18, the court had under consideration the habitual criminal act of May 4, 1885, 82 Ohio Laws, 237, and held (paragraph two of the syllabus) :

“To authorize a sentence of imprisonment for life under that statute, the indictment should allege that the defendant had been previously twice convicted, sentenced and imprisoned, in some penal institution for felonies, describing each separately.”

The act provided that:

“Every person who, after having been twice convicted, sentenced and imprisoned in some penal institution for felony, whether committed heretofore or hereafter, * * * shall be convicted, sentenced and imprisoned in the Ohio penitentiary for felony hereafter committed, shall be deemed and taken to be an habitual criminal * *

At page 437, Chief Justice Bradbury, the writer of the opinion, said:

“The proof should cover every material averment of the indictment and the verdict establish every fact made necessary by the statute to the judgment pronounced by the court.”

The language of the act there under consideration is so similar to that of Section 4131, General Code, as to constitute the adjudication of much value. The present Habitual Criminal Act, Sections 13744-1 to 13744-3, General Code, does not include the language which was under consideration in the Blackburn case.

It is recognized that criminal statutes must be strictly construed and especially is this true where the penalty prescribed is severe, as it is in the instant case. 24 Corpus Juris Secundum, 1144; 25 American Jurisprudence, 260. Lerch v. City of Sandusky, 23 Ohio App., 109, 155 N. E., 393, which also holds that there can be no valid conviction in a criminal case unless the affidavit charges an offense. Judge Williams, later of the Supreme Court, at page 112 of the opinion, quotes with approval from Hagar v. State, 35 Ohio St., 268:

“In charging an offense in an indictment, it is not good practice to omit the words of the statute which define the crime. The safer course is to employ them ; and, while this is not always indispensable to the validity of the indictment, it is clear that if they are omitted the defect will be fatal, unless the words used are the precise equivalent of the words of the act, or, at least, plainly and necessarily include them.”

It is not necessary to cite authority to establish that “convicted,” “sentenced” and “imprisoned in any workhouse” all are words of different meaning and neither is the precise equivalent of the other, so that a charge omitting any one of the words or the phrase' fails to state one of the material elements of the offense defined. See, also, Hamilton, Ex parte, v. Russell, 54 Ohio Law Abs., 57.

In People v. Brown, 253 Mich., 537, 235 N. W., 245, 82 A. L. R., 341, there was a plea of guilty to a charge failing to state the material elements constituting the offense, and the court said that “the record fails to show a plea of guilty covering the elements of the offense.” In State v. Parker, 150 Ohio St., 22, 80 N. E. (2d), 490, the defendant was prosecuted under Section 13064, General Code, which made it an offense for one for his own profit to carry on a scheme of chance. The indictment failed to charge that the scheme of chance was promoted for defendant’s own profit. The court held, notwithstanding the general averment that the acts were contrary to the form of statute in such cases made and provided, the indictment was demurrable and did not constitute an offense punishable by the laws of this state.

Petitioner, by his plea of guilty, admitted culpability only for the elements set out in the formal complaint and as it did not include the charge that he had been imprisoned in a workhouse or workhouses for the offenses of which it was claimed he had been convicted and sentenced, he had not plead guilty to the offense sought to be charged, and no sentence could properly be pronounced committing him to the workhouse upon such plea.

It is also urged that the complaint was void because it did not set out the prior specific offenses as charged. We do not believe this claim is of sufficient consequence to affect the jurisdiction of the trial court.

It is asserted also that the nunc pro tunc entry is invalid in that it does not conform to certain requirements essential to such an entry. Though it may be conceded that the entry is not all that is to be desired, there is no doubt of the right of the court to make it nunc pro tunc, or that it carried a sentence of the court under the plea of guilty of the petitioner.

The prayer of the petition will be granted and petitioner discharged.

Petitioner discharged.

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


text:
    Peoples Liberty Bank & Trust Co., Appellant, v. Cornett, Appellee.
    (No. 7124
    — Decided July 11, 1949.)

      Mr. J. W. Taylor and Mr. Cedric Vogel, for appellant.

      Mr. Jach Spechter, in propria persona.

   Hildebrant, J.

At a judicial sale on execution, the undivided one-half interest of the defendant in certain real estate was sold at public auction to one Jack Speckter. Such sale was, on motion, regularly confirmed. Prom the short narrative bill of exceptions it appears the purchaser “admitted that the sheriff in crying the sale stated that only a half-interest was to be sold and at the time he made a bid on the property, he knew that a half-interest was being sold.”

The purchaser refused to complete payment on the ground that in the legal advertisement the whole interest was described instead of the one-half interest. On a motion in contempt being filed, the purchaser, at a later term of court, filed a motion to set aside the sale for the reason stated above. On hearing of both motions together, the court set the sale aside and dismissed the motion in contempt. It is from this action of the court, the appeal is here on questions of law.

In 24 Ohio Jurisprudence, 48, Section 63, it is stated:

“The object of a notice of sale is to inform the public of the nature and condition of the property to be sold, and of the time, place, and terms of the sale, and thus to attract bidders and prevent a sacrifice of the property. If these objects are attained, minor errors and mistakes will not affect the sufficiency of the notice.”

And on page 95, Section 130, ibid., it is stated:

“The rule of caveat emptor applies in all its rigor to purchasers at judicial sales, who must ever be mindful of the rule, as they are, after all, volunteers who are not required to buy, and as the rights of lien holders whose liens were acquired before the commencement of an action, and who are not parties thereto, remain unaffected, the same as if no judicial sale had been made. So that a purchaser at a judicial sale is charged with the duty of ascertaining for himself the character and condition of the property, as the maxim, ‘id certum est quod certum reddi potest,’ applies to such purchaser as an obvious corollary to the rule of caveat emptor. For failure so to ascertain, and for such neglect the purchaser stands as though he had full knowledge in the premises. And if he does not get a good title it is his misfortune, as, in the absence of fraud, he buys at his own risk as to title. And, a fortiori, one who neglects an obvious precaution should abide the consequences.”

As to the effect of confirmation of the sale, it is stated in 24 Ohio Jurisprudence, 61, Section 80:

“Furthermore, all irregularities are cured after the sale is made and confirmed. It is said that the final order of confirmation, having the effect of a final conclusive judgment, cures all such irregularities, misconduct, and unfairness in the making of the sale, departures from the provisions of the decree of sale, and errors in the decree and the proceedings under it

In view of the foregoing general principles, it would appear that even had the purchaser here been misled as to the quantum of the property being sold by reason of the error in the advertisement, it is doubtful if, even on original motion to confirm, his complaint would have appealed to the discretion of the court. But, certainly, when he admits as he does in this case that he was not misled thereby, how can he be heard to complain of the error in the advertisement upon which he had no right to rely in the first instance.

The court here lost its discretionary power over its judgment of confirmation after term, so that it is doubtful if the mistake in describing the correct quantum of the property in the advertisement of sale can be called such an irregularity in obtaining the judgment as to give effect to the procedure followed here. However, without deciding that point, it appears that the purchaser knowingly made his bid, aware of the advertising error and correctly informed as to the exact quantum being sold, and cannot now invoke the barest technicality to avoid his informed and voluntary action.'

The judgment is reversed and the cause remanded, with instructions to order the purchaser to comply ■with the terms of sale forthwith, or be held in contempt of court.

Judgment reversed.

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