text:
    In re Appropriation by Ohio Turnpike Commission.

      (No. 329
    Decided November 25, 1953.)

      Messrs. Newcomer, Newcomer é Shaffer, for appellees.

      Mr. Lorin L. Bogue and Mr. Ray O’Donnell, for appellant, Ohio Turnpike Commission.
   Deeds, J.

This appeal on questions of law is from a judgment of the Court of Common Pleas of Williams County, dismissing the application of the appellant, Ohio Turnpike Commission, in proceedings for the appropriation of certain property of the appellees, Millard C. Stacey, Audrey Stacey and Paul E. Stacey.

The appellant, Ohio Turnpike Commission, and the appellees Millard C. Stacey, Audrey Stacey and Paul E. Stacey, will be referred to herein as the commission and the owners respectively.

The commission was created by legislative enactment as a “body both corporate and politic in this state,” and the'appropriation proceedings involved in this appeal were instituted pursuant to Sections 1204 to 1222, inclusive, General Code (Sections 5537.01 to 5537.99, Revised Code).

The dismissal of the application for appropriation and entering of the judgment under review here, resulted from the granting of the motion submitted by the owners on October 22, 1953, the date set by the court for the assessment by a jury of compensation for the property of the owners sought to be appropriated in the proceedings.

The pertinent portion of the motion of the owners for a dismissal, referred to above, is as follows:

“Now comes Millard C. Stacey, the owner of the real estate described in the application filed in this. case, and on motion asks that this case be dismissed at this time, for the reason that the Turnpike Commission has not endeavored to agree with Millard C. Stacey as to the compensation to be paid by the commission for the property proposed to be taken as described in said application.”

Prior to a ruling by the court on the above described motion by the owners, the commission submitted its motion containing the following:

“Now comes Ohio Turnpike Commission and moves the court to strike from the files the motion filed herein by the property owners on October 22, 1953, asking that the above appropriation case be dismissed. This motion to strike is upon the following ground:
“That the Court of Common Pleas has no authority or jurisdiction in this appropriation proceeding to pass upon or adjudicate the matters or questions raised in said motion.”

The determinative part of the resolution attached to the application for the assessment of compensation is as follows:

“Resolution No. 402 — 1953 declaring the necessity of appropriating property and directing that proceedings to effect such appropriation be begun and prosecuted.
“Resolved that the commission has endeavored for a reasonable time to agree with the owner or owners of the property described herein as to the compensation to be paid therefor, but has been unable to agree with said owner or owners, and said property is needed for the construction and efficient operation of the Ohio Turnpike Project No. 1, and
“Be it further resolved that proceedings be begun and prosecuted to effect the appropriation of the following-described property, and the easements, rights, and restrictions hereinafter described, from the following-named owner or owners and persons having interests therein, to wit.”

The journal entry embodying the judgment of the Court of Common Pleas under review by this court, determined, in effect, that the motion of the commission to strike the motion of the owners from the files was not well taken and should be overruled; that in the state of the proceedings then present, the burden was upon the commission and it was ordered to go forward and produce evidence, which the commission declined to do; that no evidence was adduced by the commission to show that it had endeavored to agree with the owners as to the compensation to be paid for the property sought to be appropriated; that no evidence was adduced by the owners in support of the owners’ motion to dismiss; and that such motion to dismiss the application was well taken and the application was dismissed at the costs of the commission without prejudice.

The assignments of error of the appellant commission are as follows:

“1. The Court of Common Pleas erred in overruling the motion of appellant to strike from the files the motion filed by the property owners on October 22, 1953, asking that above appropriation case be dismissed.

“2. The Court of Common Pleas erred in ordering appellant to proceed with the evidence on the said motion filed by the property owners.

“3. The Court of Common Pleas erred in dismissing the application for appropriation filed in said cause by appellant.

“4. The judgment of the Court of Common Pleas is contrary to law.”

The provisions of the Ohio Turnpike Act bearing directly upon the questions presented on this appeal are contained in Section 1208, General Code (Section 5537.06, Revised Code), and are as follows:

“(a) The commission shall endeavor to agree with the owner or owners, or the guardian or trustee of any owner, as to the compensation to be paid for the property.
“(b) If it is unable to agree with any owner within a time considered by the commission to be reasonable, it shall declare, by resolution, that fact and the necessity of appropriating the property of said owner, and direct that proceedings to effect such appropriation be begun and prosecuted; said resolution shall set forth the names and addresses, if known, of the owner or owners of said property and contain a description of the property sought to be appropriated; whereupon, proceedings to appropriate shall be begun, prosecuted and conducted as herein set out.
“(c) Such proceedings shall be begun and prosecuted either in the Probate Court or the Court of Common Pleas, as the commission may elect, of the county in which the property, or a part thereof, is situated, by filing application to which there shall be attached and made a part thereof, a copy of the resolution of the commission.
i i # # *
“(e) A view of the premises shall be ordered when demanded by a party to the proceedings. The owner or owners shall have the right to open and close the case.
< Í * * #
“(o) * * * All proceedings brought under this section shall be governed by the provisions of law applicable in civil actions in the Court of Common Pleas, except as otherwise provided herein shall be advanced as a matter of immediate public interest and concern, and shall be heard in all courts at the earliest practicable moment.”

Section 1207, General Code (Section 5537.07 Revised Code), provides:

“The commission is hereby authorized and empowered to acquire by purchase, whenever it shall deem such purchase expedient, any land, property, rights, rights-of-way, franchises, easements and other interests in lands as it may deem necessary or convenient for the construction and operation of any turnpike project upon such terms and at such price as may be considered by it to be reasonable and can be agreed upon between the commission and the owner thereof, and to take title thereto in the name of the state. ’ ’

The principle of law has been firmly established and adhered to in this state that enactments conferring power to exercise the right of eminent domain are to be construed strictly. Powers v. Hazelton & Letonia Ry. Co., 33 Ohio St., 429; Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Ohio Postal Telegraph Cable Co., 68 Ohio St., 306, 67 N. E. 890, 62 L. R. A., 941; Village of Rockport v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., 85 Ohio St., 73, 97 N. E., 133; City of Cincinnati v. Louisville & Nashville Rd. Co., 38 Ohio St., 283, 102 N. E., 951; McMechan v. Bd. of Edn. of Richland Twp., 157 Ohio St., 241, 105 N. E. (2d), 270.

The conditions precedent prescribed to be met by the commission by subdivisions (a) and (b) of Section 1208, General Code (Section 5537.06, Revised Code), a part of the Ohio Turnpike Act as quoted above, are in accordance with the long-established legislative purpose in this state, in grants of authority to appropriate private property under the constitutional power of eminent domain. The first enactment, containing a similar condition precedent requiring that an attempt be made by the condemnor to agree with the owner before appropriation proceedings were authorized, was in the year 1852. It is therefore, in our view, of great significance in a determination of the questions presented on this appeal that the decisions of the Supreme Court of the state in the interpretation of statutes conferring the power of eminent domain, since the first enactment more than a century ago, have uniformly been to the effect that such a condition precedent must be complied with before proceedings to appropriate the property of the owner can be consummated.

The rule of construction governing an interpretation of the provisions of the Ohio Turnpike Act relating to conditions precedent, in question here, as established by the decisions of the courts of this state, has been stated in 15 Ohio Jurisprudence, 948, Eminent Domain, Section 279:

“One of the conditions precedent to an appropriation proceeding is the inability of the corporation to agree with the owner of the property sought to be appropriated as to the compensation to be paid. The rule of this statute [Section 11039, General Code] is said to be based on the reason that the landowner should not be brought into court if an agreement can be reached, and also upon the further policy that such dispute should not take up the time of the courts unless and until there is an inability to agree. In the ordinary case, therefore, proceedings in appropriation can not go forward until it is made to appear that the parties can not agree. * * *
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“There must be a bona fide attempt to agree with the landowner; in the absence of such an attempt there is no right to appropriate. Thus, where the corporation makes the same offer for several parcels of different value, and mails the offers so late that no opr portunity is given for consideration, or for counter offers, there is no right to appropriate. And the fact that the petition is pending for some time before it is heard does not change the situation.
“Inability to agree may be proven by testimony of a bona fide offer and a refusal thereof. The real inquiry on the question of inability to agree is said to be whether a definite offer was made to an owner who had knowledge of the general purpose for which the property was to be utilized and an opportunity to accept the same before being put to the annoyance and expense of litigation. A proposition should be made for a definite amount of ground for a definite sum of money. Where the court is satisfied that the corporation has made its last and best offer, and that this has been refused, there is an inability to agree within the meaning of this statutory requirement.
“No special or set form of words is necessary to prove inability to agree, but acts showing a desire to agree and an effort in that direction may be quite as convincing as speech.
“The question is ordinarily one to be determined from the facts of the individual cases.”

The decisions of the Supreme Court of the state are in support of the foregoing, statement. See Powers v. Hazelton & Letonia Ry. Co., supra; Cleveland, Cincin nati, Chicago & St. Louis Ry. Co. v. Ohio Postal Telegraph Cable Co., supra; Village of Rockport v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., supra; City of Cincinnati v. Louisville & Nashville Rd. Co., supra; Parkside Cemetery Ass’n. v. Cleveland, Bedford & Geauga Lake Traction Co:, 93 Ohio St., 161, 112 N. E., 596.

The decisions of the courts of last resort' in many of the states of the United States are in harmony with the rule of interpretation adopted by the court of last resort in this state, as is clearly indicated by authoriative publications on the subject of eminent domain.

In 6 Nichols on Eminent Domain (3 Ed.), 52, Section 24.62 [1], we find the following statement:

“It is, of course, perfectly competent for the Legislature to grant the power of eminent domain subject to the condition that the required land can not be obtained by purchase, and, in such a case, unless there is a bona fide attempt on the part of the condemnor to induce the owner to sell the land at a reasonable figure, the condition under which the power is granted is not fulfilled, and in such case any attempted exercise of eminent domain is unauthorized and consequently void and of no effect. It has been held that such condition may arise by statutory implication. Compliance with such condition is usually deemed mandatory and involves a question of jurisdiction. Such statutes raise no questions of law except to define what constitutes a bona fide attempt to purchase the land. It has frequently happened that a Legislature, in granting the power of eminent domain, while not specifically providing that the power shall not be-exercised unless the necessary land can not be secured by purchase, has enacted that if the corporation is unable to obtain the necessary land by purchase it may take the same in a manner more particularly set forth. Under such statutes, when the sole authority to exercise eminent domain is given in this manner, it is generally held that a bona fide attempt to purchase the land by agreement between the parties and a failure so to do is a condition precedent to the initiation of condemnation proceedings, and that failure to comply with this requirement renders any subsequent proceedings void. This attempt and failure must appear on the record as a foundation of the jurisdiction invoked.”

A succinct statement of the rules of law applicable to the question being considered is found in 2 Lewis on Eminent Domain (3 Ed.), 893, Section 497:

“Statutes conferring the power of eminent domain usually require that an attempt shall be made to agree with the owner of property desired, before instituting proceedings to condemn it. In whatever form of words this direction is couched, it is generally held to be imperative, and a condition precedent to the exercise of compulsory powers. It is generally held that the inability to agree should be alleged and proven.”

Counsel for the commission assert that the Ohio authorities relate to the taking of private property by private corporations under a statute that specifically provides for a judicial determination of preliminary questions and that no such provision is made in the Ohio Turnpike Act. Powers v. Hazelton & Letonia Ry. Co., supra, arose under an act which made no provision for determination of preliminary questions, but, nevertheless, the Supreme Court held that it was essential that the company seeking a judgment of condemnation should show that it had complied with the law giving it the right to exercise the power of eminent domain.

It is therefore clear to this court, and we so find, in harmony with a prior pronouncement by the court in an opinion by Pess, P. J., involving this and associated proceedings, that subdivisions (a) and (b) of Section 1208, General Code, quoted above, prescribe mandatory conditions precedent, a compliance with which is incumbent upon the commission before it has the authority as provided in subdivision (b) to declare by resolution the matters therein prescribed and direct that the appropriation proceedings shall be begun.

The discretion accorded the commission by subdivision (b) of Section 1208, General Code, that “if it [the Commission] is unable to agree with any owner within a time considered by the commission to be reasonable, it shall declare, by resolution, that fact and the necessity of appropriating the property of said owner,” does not relieve the commission from the duty of making a bona fide endeavor (as provided clearly in subdivision [a]), to agree with the owner as to the amount of compensation to be paid for the property, before directing that proceedings to effect the appropriation be begun and prosecuted.

We determine that the motion of the owners for a dismissal of the application in the Court of Common Pleas raised the question of the jurisdiction of the Court of Common Pleas over the subject matter of the action and that, therefore, it was within the discretion of the court to make inquiry concerning its jurisdiction, and to also make a determination of that question.

A general statement of the law in the United States applicable to the situation presented by the motion of the owner to dismiss is found in 14 American Jurisprudence, 385, Courts, Section 191:

“Where judicial tribunals have no jurisdiction of the subject matter on which they assume to act, their proceedings are absolutely void in the strictest sense of the term; and a court which is competent to decide on its own jurisdiction in a given case may determine that question at any time in the proceedings of the cause, whenever that fact is made to appear to its satisfaction, either before or after judgment. Accordingly, an objection for want of jurisdiction, if it exists, may be raised by answer or at any subsequent stage of the proceedings; in fact, it may be raised for the first time on appeal. A court will recognize want of jurisdiction over the subject matter even if no objection is made. Therefore, whenever a want of jurisdiction is suggested, by the court’s examination of the case or otherwise, it is the duty of the court to consider it, for if the court is without jurisdiction, it is powerless to act in the case.”

The rule is also firmly established in this state. See 11 Ohio Jurisprudence, 671, Courts, Section 28, where it is stated:

“Objections for want of jurisdiction of the subject matter may be raised at any stage of the proceedings. The objection that the court has no jurisdiction of the subject of the action will not be waived by failure to raise such objection by demurrer or answer. Where it appears upon the face of the record that the court has no jurisdiction of the cause, the failure to set up the want of jurisdiction by plea is no waiver of the objection.”

In 2 Ohio Jurisprudence, 309, Appellate Review, Section 154, it is said:

“While a court may acquire jurisdiction over parties by their consent, yet parties can not confer juris'diction on a court as to subject matter, for the reason that the court can derive its general jurisdiction only from the power which created it. Where judicial tribunals have no jurisdiction of the subject matter on which they assume to act, their proceedings are absolutely void in the strictest sense of the term; and a court which is competent to decide on its own jurisdiction in a given case may determine that question at any time in the proceedings of the cause, whenever that fact is made to appear to its satisfaction, either before or after judgment. Accordingly, an objection for want of jurisdiction, if it exists, may be raised by answer, or at any subsequent stage of the proceedings; and in fact it may be raised for the first time on' appeal. A court will recognize want of jurisdiction over the subject matter, even if no objection is made, and therefore whenever a want of jurisdiction is suggested, by the court’s examination of the case or otherwise, it is the duty of the court to consider it, for if the court is without jurisdiction it is powerless to act in the case.”

See, also, 31 Ohio Jurisprudence, 873, Pleading, Section 283; Big Cuyahoga Light, Heat & Power Co. v. Turner, Vaughn & Taylor Co., 17 C. C. (N. S.), 34, 28 C. D., 487; Heid et al., Bd. of Edn. of Lawrence Twp. v. Hartline et al., Bd. of Edn. of Tuscarawas County, 79 Ohio App., 323, 73 N. E. (2d), 524; Steamboat General Buell v. Long, 18 Ohio St., 521; Canton Provision Co. v. Gauder, a Minor, 130 Ohio St., 43, 196 N. E., 634; State, ex rel. Young, v. Morrow, Judge, 131 Ohio St., 266, 2 N. E. (2d), 595; Wisner v. Probate Court of Columbiana County, 145 Ohio St., 419, 61 N. E. (2d), 889; State, ex rel. Greenstein, v. Clifford et al., Judges, 146 Ohio St., 78, 64 N. E. (2d), 62, Certiorari denied, 327 U. S., 795, 90 L. Ed., 1021, 66 S. Ct., 823.

We hold that the certified resolution attached to the application raises an inference to the effect that the allegations contained in the same are true and is, therefore, sufficient to make prima facie proof of those facts, but that such resolution and the statements contained in same are not conclusive against any and all inquiry by the property owner, to show that the statement that the commission endeavored to agree with the owner is not in fact true. We hold further that if it should be made to appear from evidence to the reasonable satisfaction of the court, that the commission has not made a bona fide endeavor to agree with the owner prior to the passage of the resolution and the commencement of the proceedings, then the commission is without authority and the proceeding must fail.

We also determine in effect that, before the commission can make the declaration and direct that the proceedings to appropriate the property be begñm, it is required to make a reasonable, bona fide endeavor to agree with the owner, although any such lack of endeavor claimed to exist must appear from evidence of such character and weight as to overcome or outweigh the prima facie showing afforded the commission by the certified resolution.

We hold also, in view of the provision outlined in subdivision (c) of Section 1208, General Code, that such proceedings shall be begun by filing the application, to which there shall be attached and made a part thereof a copy of the resolution of the commission and, in view of the further provision in the act that the owner shall have the right to open and close the case, that if such resolution is regular in all respects, in compliance'with the requirements of the act relating to same, in that situation at the commencement of the trial of the case, the burden is upon the owner to go forward and first produce his evidence.

We have considered all the assignments of error and it necessarily follows from the findings stated in this opinion, that the Court of Common Pleas was acting within the sphere of its legitimate discretion in its rulings on the motions presented and that, therefore, the judgment of that court should be and is affirmed.

Judgment affirmed.

Fess and Conn, JJ., concur.


source: Caselaw Access Project

author: Wiseman, P. J.

license: Public Domain

text:
    Burkland, Appellant, v. Darin & Armstong, Inc., Appellee.
    (No. 5076
    Decided June 10, 1954.)

      Messrs. Coughlin, Ogier db Lloyd, for appellant.

      Messrs. Vorys, Safer, Seymour db Pease, for appellee.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County, directing a verdict for defendant at the close of plaintiff’s case.

In the summer of 1951, the North American- Aviation Company occupied a large building, which was formerly used by the Lustron Corporation. The defendant, Darin & Armstrong, Inc., was engaged as an independent contractor by the aviation company to remove machinery. Large quantities of heavy machinery were scattered all over the building. Well-defined aisleways extended north and south and east-and west across the building. The defendant’s employees worked only in the daytime, and had no control over the lighting or other use of the building. The building was approximately 1,400 feet in length, 600 feet in width, and from 40 to 60 feet in height. No light from the outside entered the building.

Plaintiff was employed by the aviation company as a night watchman, it being his duty to patrol the building at night. The building was so dark that it was necessary for the plaintiff to use a flashlight furnished by the employer, which he switched off and on intermittently to see where he was walking. At night while walking between the aisles where machinery had been piled, he fell into a pit from which the defendant had removed a heavy piece of machinery. The pit was riot barricaded on three sides. At the time the plaintiff fell he was not using the flashlight, and he could not see the floor or anything in front of him. There is some evidence that on the day before plaintiff was injured, an employee of the aviation company suggested to an employee of the defendant that a certain pit be barricaded. However, the identity of the person was not disclosed, nor was the location of the pit or place determined. The evidence does not show that defendant had any knowledge anyone would be patrolling the building at night, or would walk around in the building except in the aisleways.

Plaintiff, in his petition, charges that defendant was negligent in failing to barricade the pit and in failing to furnish sufficient light in the building to enable the plaintiff to see where he was walking. Defendant’s answer was mainly a general denial and an allegation that plaintiff’s injuries were due to his own negligence.

At the close of plaintiff’s case, defendant moved for a directed verdict. The court, in sustaining the motion, held that the evidence showed the plaintiff to be guilty of contributory negligence as a matter of law.

The evidence shows that the pit was not adjacent to any passageway or aisle. The evidence most favorable to the plaintiff was to the effect that the pit was 20 feet from one of the main aisles.

The plaintiff testified as follows:

“Q. Now, as you walked along on your patrol duty, at this particular time, or immediately prior to the accident, was there sufficient light in this building to distinguish the difference between the pit and the floor? A. No, sir.”
On cross-examination, the plaintiff testified as follows :
“Q. As you approached this place where you fell, could you see the floor in front of you? A. Not without lights, no.
“Q. And there were no lights at that time? A. No, sir.
“Q. And you were using this flashlight as you approached this place where you fell? A. Periodically, yes, I was flashing it off and on.
“Q. Well, how long was it before the time you fell that you last used the flashlight? A. Well, 1 flashed the light and assumed that the way was clear, I saw no obstructions in my path.
“Q. Then you walked ahead? A. That is right, sir.
“Q. And you were in darkness at that time? A. Yes.
“Q. And as you were walking in the darkness, you suddenly stepped in a hole in the floor, is that right? A. Correct.
i Í * # #
“Q. It wasn’t light enough so that you could see it, was it ? A. It wasn’t light enough.
“Q. That is, it wasn’t light enough so that you could distinguish between what was floor and what wasn’t floor, is that right? A. That is right.
“Q. Now, how far was the place where you fell from the aisleway along the south edge of the building? A. From the aisleway along the south edge of the building?
“Q. Yes. A. To the best of my knowledge, I would assume that it was probably 20 or 25 feet.
a # # *
“Q. Mr. Burkland, you couldn’t see where you were going at the time you stepped into this place where your foot went in, could you? A. You couldn’t distinguish the pit from the floor, no.”

Without determining the question as to whether the defendant owed the plaintiff any duty to barricade the pit or light the room, we conclude that this case falls within the principle of law laid down in Johnson v. Citizens National Bank of Norwalk, 152 Ohio St., 477, 483, 90 N. E. (2d), 145, 34 A. L. R. (2d), 1361. In taking not only one but a number of steps into darkness the plaintiff was guilty of negligence as a matter of law, which would preclude recovery.

Finding no error in the record prejudicial to the rights of the appellant, the judgment is affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


author: Middleton, J.

text:
    Parker, Appellant, v. The Central Manufacturers Mutual Ins. Co., Appellee.
    (No. 190
    Decided July 15, 1953.)

      Messrs. Beard, Wise & Beard and Messrs. Purdy & Brown, for appellant.

      Mr. M. L. Landis and Messrs. Effler, Eastman, Stichter é Smith, for appellee.
   Middleton, J.

This is an appeal on questions of law from a judgment rendered on the pleadings by the Court of Common Pleas of Van Wert County.

Plaintiff’s claim as set out in his petition is, briefly, as follows:

He was, at the time referred to in the petition, the owner of certain real estate in Willshire, Ohio, upon which were located a one-story brick building and a two-story brick building; that on May 16, 1935, the defendant executed and delivered to the plaintiff a fire insurance policy insuring said property against' loss or damage by fire for a period of one year, in the sum of $7,000; that on or about May 29, 1935, while the policy of insurance was in force and effect, the one-story building on such property was totally destroyed by fire, and the two-story building was damaged by fire to the extent of $1,000; and that plaintiff duly notified the defendant of the fire and otherwise complied with all the covenants of said policy on his part to be performed, save and except the formal “proof of loss” within the 60 days from the time of the fire, which policy provision, the company, by its knowledge and conduct, has waived.

The total amount and value of property lost or damaged by the fire is $3,500 and such amount is plaintiff’s claim which was presented to the defendant for allowance and payment, and was disallowed and payment refused.

The defendant filed an answer in which it admits its incorporation and place of business, and that it assumed all liabilities of The Ohio Underwriters Mutual Fire Insurance Company which issued the policy, as alleged in the petition.

The policy of insurance was execeuted and delivered to the plaintiff, and plaintiff, Charles C. Parker, notified the defendant of a fire which had occurred on the premises referred to in the petition.

For a second defense, defendant avers that plaintiff’s action was not commenced within. 12 months next after the loss by fire, to wit, May 29, 1935, as required by the conditions of the policy of insurance.

For a third defense, defendant states that the insured, or his legal representative, did not render a statement to the defendant, signed and sworn to, in compliance with the following conditions of the policy of insurance:

“If fire occur the insured shall and within sixty days after the fire unless such time is extended in writing by this company, render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire; the interest of the insured and of all others in the property.”

The answer states further that time for filing such proof of loss beyond the 60-day limitation was not extended in writing by the defendant; that plaintiff has never, to this date, tendered proof of loss, nor has proof of loss been received by defendant.

To this answer, plaintiff filed his reply in which he alleges that the action on the policy for the recovery of his claim was commenced within 12 months after the inception of the loss, in that on September 6, 1935, an action was instituted in the Common Pleas Court of Van Wert County by Jane Cully Dudgeon against' Charles C. Parker, The Ohio Underwriters Insurance Company and J. L. Yancy, as defendants.

In said action plaintiff alleged in her petition that title to the property here in question was in herself and not in the defendant, Charles C. Parker.

In her petition, plaintiff in that action averred that the buildings pn the property were insured against loss by The Ohio Underwriters Insurance Company of Van Wert, Ohio, in the approximate sum of $7,000; that said premises, on May 30, 1935, were partially destroyed and damaged by fire; and that defendant Charles C. Parker is claiming the insurance money, which money does not belong to him but is the money and property of the plaintiff.

The plaintiff herein alleges that in said action filed by Jane Cully Dudgeon, the defendant, Charles C. Parker, plaintiff herein, on October 19, 1935, filed a demurrer to the petition; that this demurrer was overruled on August 16, 1940; and that on October 14, 1940, the defendant therein, Charles C. Parker, filed his answer which denied plaintiff’s allegation of her ownership of the property in question.

Then follows a series of admissions of the allegations of the petition, which may be briefly stated as follows:

First, an admission that the buildings on the premises were insured against loss by fire with the defendant insurance company in the approximate sum of $7,000.

Second, an admission that on May 30, 1935, the buildings were partially destroyed by fire.

Third, an admission that the defendant (Parker) is claiming said insurance money.

Defendant then denies, all and singular, the averments contained in the petition.

Plaintiff alleges further in his reply that on October 5, 1948, the defendant insurance company filed its answer in the Dudgeon case and that such answer by the insurance company was, briefly, as follows:

Admits first, that the policy of insurance was issued to Charles C. Parker, in the amount of $7,000;

Second, that said policy bore an inception date of May 16,1935, and an expiration date of May 16, 1936;

Third, that said policy provided for $4,500 insurance on the two-story building and $2,500 on the one-story building situate on the real estate described;

Fourth, that notice of damage to these premises by fire as of May 30, 1935, was gained by the insurance company about May 31, 1935, whereupon an immediate investigation of the cause of the fire was commenced; and

Fifth, that shortly after the date of the fire the plaintiff (Dudgeon) commenced an action, putting in issue the title to the premises described in the policy, which policy contained a provision that it should be void if the interest of the insured be other than unconditional and sole ownership.

Sixth, the answer denies that the defendant, Charles C. Parker, has fully complied with the terms and conditions of the policy, establishing a loss in the approximate amount of $3,500 or any other amount; and

Seventh, that the plaintiff (Dudgeon) is not an insured under this policy or otherwise identified as having an insurable interest in the premises described in the policy.

Then follows a general denial of all allegations contained in the petition not admitted to be true in the answer.

Plaintiff herein avers that said action was dismissed, without prejudice, on September 13, 1949, because of lack of prosecution on the part of the plaintiff, to which ruling the plaintiff and the defendant Parker except.

In his reply filed in the case at bar, plaintiff alleges that this action was brought within one year after the dismissal of the above referred to action, to establish the loss suffered by this plaintiff, and that plaintiff has exercised due diligence in all respects.

Plaintiff then admits that proof of loss was not tendered to the defendant within 60 days after the fire occurred, and that the company, by its knowledge and conduct, has waived this provision of the policy.

The reply then denies all allegations of defendant’s answer inconsistent with his petition.

Subsequently, the defendant insurance company filed its motion for judgment on the pleadings, which motion the court granted and entered judgment for •the insurance company, and dismissed plaintiff’s petition.

From that judgment the plaintiff appealed to this court.

The amended petition in the Dudgeon case contained five causes of action, but only one, the fourth cause of action, related to the insurance policy involved in the case at bar.

It is conceded that action on the insurance policy, under the terms of the policy, must be brought by the insured within 12 months from the date of the loss.

Admitted facts set forth in the pleadings show that an action was not commenced by the plaintiff Parker on the policy within the 12-month period, unless the averments in his answer in the Dudgeon case constituted an affirmative action by way of cross-petition against his codefendant, the insurance company. If the averments in his answer in the Dtcdgeon case do constitute an assertion of a claim against the insurance company by way of cross-petition, the present action is not barred by the dismissal of the Dudgeon case for want of prosecution, but is brought within the one-year period from the date of such dismissal, as provided by Section 11233, General Code, which reads as follows:

“In an action commenced,' or attempted to be commenced, if in due time a judgment for the plaintiff be reversed, or if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff, or, if he dies and the cause of action survives, his representatives may commence a new action within one year after such date, and this provision applies to any claim asserted in any pleading by a defendant.”

If the plaintiff is to prevail in this action it must be by reason of the following provision of the above-quoted section, to wit, “and this provision applies to any claim asserted in any pleading by a defendant.”

The Supreme Court, in discussing the provisions of this section, as contained in an antecedent section, in the case of Atcherly v. Dickinson, 34 Ohio St., 537, states the following at page 539:

“The plaintiffs have misconceived the purpose and effect of this section. It is a part of the chapter of the code relating to the ‘time of commencing actions,’ of which section 6 reads as follows: ‘Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action accrues. ’ It is plain, from this, that the chapter relates exclusively to original actions, and the prescribed limitations apply only to the causes of such actions. In addition, the plaintiffs in error are not within the terms of section 18. The first clause of the section relates to the reversal of judgments for the plaintiff, or the failure of the plaintiff otherwise than on the merits. The plaintiffs in error were defendants in the original action, and hence they are not within the first clause of the section. The second clause of the section makes its provisions applicable to any claim asserted in any pleading by a defendant, i. e,, any setoff or counterclaim which would have constituted a cause of action against the plaintiff that may be set up by the defendant. But the defendants' set up no such claim in this case. The defense was a denial of liability.”

From the above statement the Supreme Court clearly holds the word, “claim,” to mean, “cause of action.”

The answer filed by Parker in the Dudgeon case is responsive only to the averments of plaintiff’s petition. It contains a series of admissions of matters set out in the fourth cause of action of the petition relating to the insurance policy and the loss and damage to the property covered thereby, and a denial of all other allegations in said fourth cause of action. It cannot be conceived how these admissions by Parker, of the averments contained in the petition, can be construed to be a counterclaim against his co-defendant, the insurance company. The answer does not seek any affirmative relief against the insurance company.

It is recognized that the prayer of a pleading is no part of the cause of action, and the relief which may be given may be different than that asked for in the prayer, but the prayer may be examined to determine what the pleader intends by his pleading and the relief he is seeking and supposes he is entitled to receive.

A study of the Parker answer to the petition in the Dudgeon case definitely eliminates the conclusion that this answer is a cross-petition seeking affirmative relief against the insurance company.

Failing to seek affirmative relief in the Dudgeon case, the plaintiff cannot in the present action avail himself of the provisions of the saving clause found in Section 11233, General Code.

Plaintiff’s action is therefore barred by the provisions contained in the insurance policy.

The court below did not err in granting the defendant insurance company judgment on the pleadings.

Judgment affirmed.

Guernsey and Deeds, JJ., concur.

Deeds, J., of the Sixth Appellate District, sitting by designation in the Third Appellate District. ■


author: Hunsicker, J.

text:
    The State, ex rel. Everson et al., v. Municipal Court of Barberton et al.
    (No. 4465
    Decided June 9, 1954.)

      Messrs. Bailey <& Bailey, for plaintiff.

      Mr. Walter Vogel and Mr. Robert L. Culbertson, for defendants.
   Hunsicker, J.

The state of Ohio, on relation of Hugh E. Everson and Susan J. Everson, filed an original action in this court, seeking a writ of prohibition against the Municipal Court of Barberton, and the Honorable Charles W. Jenney as judge of that court. The plaintiff asks this court to prohibit the defendants “from exercising any jurisdiction whatsoever to hear, determine or adjudicate cause No. 16538” (a forcible entry and detainer action) “on the docket of said court, wherein Pete Scarito and Ora Scarito are plaintiffs, and relators are defendants.”

The cause herein is submitted to this court upon written stipulations entered into by counsel. for the litigants, oral evidence, and various exhibits admitted by agreement of the parties.

The facts material to the issue here are:

On July 10, 1953, Pete Scarito and Ora Scarito, herein called Scarito, entered into a written contract (herein called land contract) with Hugh E. Everson and Susan J. Everson, herein called Everson, by the terms of which agreement, Scarito agreed to sell, and Everson agreed to buy, certain real property. On October 26, 1953, Scarito filed, in the Common Pleas Court of Summit County, Ohio, a petition alleging that Everson had failed to make the payments required by the land contract, and that, by reason of such default, the total amount of the sale price was due. Scarito prayed for a judgment for the total unpaid amount due under the contract, foreclosure of the land contract, the sale of the premises, and for the appointment of a receiver. On January 18, 1954, Scarito filed an amended petition, alleging that, in addition to the failure of Everson to pay any of the installments due under the land contract up to the filing of the amended petition, they were permitting the “said property to deteriorate.” On January 29, 1954, Everson filed an answer and cross-petition to the petition and amended petition, alleging that they were induced to enter into the land contract by the fraudulent representations of Scarito. Everson prayed for damages, a return of the down payment, and a decree that the land contract is null and void.

The action in foreclosure has not been heard by the Court of Common Pleas, because of various continuances granted the plaintiffs Scarito. A receiver for the premises has been applied for by Scarito.

On March 3, 1954, Scarito filed, in the Municipal Court of Barberton, their petition in forcible entry and detainer, being cause No. 16538 on the dockets of that court. This petition alleges that; a land contract for a sale of the same premises described in the action filed in the Common Pleas Court had been entered.into between Scarito and Everson; the land contract contained a provision for re-entry upon default of the conditions of such land contract; Everson took possession of the premises and remains in possession thereof; a default occurred; Scarito, by reason of the default, elected to treat said contract void and the defendants (Everson) as tenants at will; “notice in writing to leave said premises” had been duly served on Everson on February 26, 1954. The prayer of the petition in forcible entry and detainer asks for proc-. ess and for restitution of said premises.

On March 16, 1954, Everson filed a demurrer to this petition filed in the Municipal Court of Barberton, saying:

1. The court does not have jurisdiction of the subject of the action.

2. The petition does not state facts which show a cause of action.

Before the demurrer or the cause in forcible entry and detainer, in the Municipal Court of Barberton, was acted upon, Everson filed the instant petition for a writ of prohibition against that court and the judge presiding therein.

The basic question in the matter before this court is: Shall a writ of prohibition issue?

“3. Prohibition is a preventive writ, designed to prevent a tribunal from proceeding in a matter which it is not authorized to hear and determine or in which it seeks to usurp or exercise a jurisdiction with which it has not been invested by law. * * *” Marsh v. Goldthorpe, Mayor, 123 Ohio St., 103, 174 N. E., 246.

“4. The writ of prohibition will be issued only where there is no plain and adequate remedy in the ordinary course of the law.” State, ex rel. Moss, v. Clair, 148 Ohio St., 642, 76 N. E. (2d), 883.

And see: State, ex rel. Levy, v. Savord, 143 Ohio St, 451, 55 N. E. (2d), 735.

It has long been recognized that, where a court has jurisdiction of the subject matter of an action pending before it, a writ of prohibition will not issue which will in effect deprive such court of the authority to determine its own jurisdiction. State, ex rel. Miller, v. Court of Common Pleas of Lake County, 151 Ohio St., 397, 86 N. E. (2d), 464.

“2. Where general jurisdiction of the subject matter of an action or proceeding has been conferred upon the Court of Common Pleas by statute, a writ of prohibition will not issue denying that court the right to determine its own jurisdiction.” State, ex rel. Levy, v. Savord, supra.

See, also, State, ex rel. Halchak, v. Boyle, Judge, 41 Ohio App., 569, 180 N. E., 388.

We see no reason why this rule should not apply to a Municipal Court.

The Municipal Court of Barberton has jurisdiction in actions in forcible entry and detainer. Section 1901.18 (H), Revised Code. It is conceded that the premises in the instant action lie within the territorial limits of such court.

The demurrer filed by Everson to the petition in forcible entry and detainer, raised'the question of the jurisdiction of the court. Everson, however, did not give that court an opportunity to pass upon its jurisdiction, but proceeded to file the instant' action, seeking a writ of prohibition. Everson thereby sought to avoid the plain requirement of the law, and on that ground the writ sought by him should be denied.

The other question posed at the beginning of this opinion is somewhat more complex, but can be decided on the authority of the established law in Ohiol "

This court has heretofore decided that a Municipal Court has jurisdiction in forcible entry and detainer against a defaulting purchaser concerning property which he agreed to purchase, where the contract to purchase, by its terms, gives the vendor in case of default an express right to declare the contract void and re-enter and repossess the premises. Maxen v. Brogle, et al., 16 Ohio Law Abs., 555.

See, also, State, ex rel. Kennelly, v. Miller, Judge, 43 Ohio App., 173, 183 N. E., 41; Martin v. Bircher, 46 Ohio App., 239, 188 N. E., 365.

It is equally well settled, for which no authorities need be cited, that a vendor who has entered into a land contract may, when a default in the terms of such land contract occurs, proceed by other means, such as ejectment or foreclosure, against a defaulting vendee.

In the matter before this court the remedy first invoked by the vendor was that of foreclosure. A petition was filed in the Court of Common Pleas seeking a money judgment, a sale of the premises, and other equitable relief. Scarito also applied for a receiver to preserve the premises and collect rents. No action has been taken on this petition or the application for a receiver.

Does the rule with respect to election of remedies apply, or does the doctrine of abatement of actions on the ground that another suit is pending apply? See: 15 Ohio Jurisprudence, Election of Remedies, Section 1 et seq.; 1 Ohio Jurisprudence (2d), Abatement, Survival and Revival, Section 1 et seq. It should be noted, however, that, in the event either defense is adopted, the remedy available is adequate and complete. In such a circumstance the writ of prohibition does not lie.

In the case of State, ex rel. Maxwell, Pros. Atty., v. Schneider, 103 Ohio St., 492, at p. 495, 134 N. E., 443, the court said:

“The pendency of another action may be successfully pleaded as a defense only when it is clearly made to appear that such pending action is between the same parties, upon the same cause of action. The reason for such rule is that the law, which abhors a multiplicity of suits, will not permit a defendant to be harassed and oppressed by two actions for the same cause where plaintiff has a complete'remedy by one of them. ’ ’

The rule with respect to election of remedies is found in the case of Frederickson v. Nye, 110 Ohio St., 459, 144 N. E., 299, 35 A. L. R., 1163:

“2. In order that an election of one remedial right shall be a bar to the pursuit of another, the same must be inconsistent and the election made with knowledge and intention and purpose to elect. The mere bringing of a suit is not determinative of the right, but the party making the election must have received some benefit under the same, or have caused detriment to the other party, or pursued his remedy to final judgment.”

We need not discuss the details of either action filed by Scarito (foreclosure and forcible detainer), nor whether an action based on equitable title in the defendant is inconsistent with a claim that no valid land contract is in existence. There áre, in the judgment of the writer of this opinion, common law and other remedies available to the defendants Everson.

“1. The extraordinary writ of prohibition is a high prerogative writ and is to be used only when there is no regular, ordinary and adequate remedy; it may not be invoked if the remedy of appeal is available.” State, ex rel. Levy, v. Savord, supra.

The writ prayed for herein will be denied.

Writ denied.

Doyle, P. J., and Stevens, J., concur in the judgment.


author: Miller, J.

text:
    Donovan et al., Appellants, v. Decker, Exr., et al., Appellees.
    (No. 4890
    Decided October 8, 1953.)

      Mr. George T. Tarbution, Messrs. Benoy S Sebastian and Mr. G. W. Fais, for appellants.

      Mr. Robert W. Newlon, Mr. Lloyd E. Bilger and Mr. Richard C. Addison, for appellees.
   Miller, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court, sustaining the defendant-appellees’ motion to vacate a judgment entered at a prior term of court for the reason that the court had no jurisdiction to enter the same. The action was to contest the will of Dana McBride and was brought by Edward D. Donovan and William J. Donovan claiming to be “interested persons” under Section 12079, General Code, in that they were brothers of the deceased wife of the testator; that the testator, Dana McBride, died without issue, leaving an estate consisting of the identical property inherited from his deceased wife, Mary McBride; and that, therefore, by virtue of the so-called half-and-half statute (Section 10503-5, General Code) they so qualified as “interested persons.”

It should be noted that the two Donovan brothers were the sole parties plaintiff.

The matter was tried before a jury, proceeded to judgment upon the verdict overturning the will, and the judgment was sustained upon appeal to this court.

Thereafter, at a later term of court, certain defendants filed a motion in the Common Pleas Court to vacate the judgment of the trial court. The motion was based on the ground that the trial court had no jurisdiction to hear the cause or enter judgment. The motion came on for hearing and evidence was adduced to the effect that the testator, Dana McBride, did not die without issue but was survived by two children. Such children also filed a motion requesting the court to amend the pleadings by adding their names as parties plaintiff to the case.

.The plaintiffs urge first that the defendants pursued the wrong remedy in attempting to vacate the judgment ; that the remedy should have been by petition to vacate instead of by a motion. The remedy to be pursued, we think, is dependent upon whether the judgment is void or merely voidable. The motion to vacate 'was filed on the ground that the court had no jurisdiction and that the judgment was void ab initio. We are in accord with the defendants’ contention that the judgment was void. The enjoyment of the right to contest a will “is dependent upon compliance with the statutory conditions and limitations and a failure to comply extinguishes such right.” Case v. Smith, Admx., 142 Ohio St., 95, 50 N. E. (2d), 142.

In the case of Peters v. Moore, 154 Ohio St., 177, 93 N. E. (2d), 683, Chief Justice Weygandt, speaking for a unanimous court, said:

“Inasmuch as the right to contest a will in Ohio is based on mandatory, jurisdictional statutes and the plaintiff has failed to comply with the requirement that the executor be made a party and a summons issued within six months after the will has been admitted to probate, the trial court was correct in dismissing the action.”

The question of jurisdiction may be raised at any time when there is a void judgment. A court has inherent power to vacate or modify its judgment after term, for good and sufficient causes, other than those specified in Section 11631, General Code, the remedy provided in that section being cumulative and not exclusive. Bennett v. Fleming, 105 Ohio St., 352, 137 N. E., 900; Hayes v. Kentucky Joint Stock Land Bank of Lexington, 125 Ohio St., 359, 181 N. E., 542; Haley v. Hanna, 93 Ohio St., 49, 112 N. E., 149.

The distinction between void and voidable judgments is clearly pointed out in the case of Snyder v. Clough, 71 Ohio App., 440, 50 N. E. (2d), 384. The first paragraph of the syllabus of that case is as follows :

“Sections 11631 to 11643, inclusive, General Code, apply to voidable judgments only; hence a judgment void ab initio because of lack of jurisdiction over the person against whom such judgment was rendered, may upon motion be vacated after term by the court which rendered the judgment, without regard to the provisions of those sections.”

This court, in the case of Shaman v. Roberts, 87 Ohio App., 328, 94 N. E. (2d), 630, in an opinion by Judge Wiseman, followed the case of Snyder v. Clough, supra, and said at. page 330:

“Sections 11631 to 11643, inclusive, General Code, apply to voidable judgments only and have no application to a void judgment.”

It is our conclusion that the defendants pursued the proper method in attacking the judgment.

It is next urged that the Donovans successfully maintained the burden of proof in the original action establishing that they were “interested parties” who had a legal right to contest the will. A definition of an interested party is found in Bloor v. Platt, 78 Ohio St., 46, 84 N. E., 604, and quoted in Chilcote, Gdn., v. Hoffman, 97 Ohio St., 98, 119 N. E., 364, L. R. A. 1918D, 575, as follows:

“Any person who has such a direct, immediate and legally ascertained pecuniary interest in the devolution of the testator’s estate as would be impaired or defeated by the probate of the will, or be benefited by setting aside the will, is ‘a person interested.’ ”

It is therefore necessary before a person can bring an action to test the will of another that he meet the standards set forth above as an interested person. If he does not fall into this classification, he is not a proper party plaintiff and, therefore, has no right to bring the action and any judgment rendered under such circumstances is void because of lack of jurisdiction. As stated in the case of Case v. Smith, Admx., supra, the right to contest a will “is dependent upon compliance with the statutory conditions and limitations and a failure to comply extinguishes such right.” See, also, Peters v. Moore, supra.

We find also that the trial court did not err in refusing to substitute the issue of Dana McBride as parties plaintiff. As that court properly stated in its opinion, before substitution is allowable a cause of action must exist.

We find no error in the record and the judgment is affirmed.

Judgment affirmed.

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


author: Collier, J.

text:
    Rhodes, Admr., Appellee, v. Valley Greyhound Lines, Inc., Appellant. Rhodes et al., Appellees, v. Valley Greyhound Lines, Inc., Appellant.
    (Nos. 417 and 418
    Decided June 22, 1954.)

      Mr. Willard C. Walter and Messrs. Knepper, White & Dempsey, for appellant.

      Mr. Leon A. Ransom, for appellees.
   Collier, J.

These two cases arise out of a collision on September 3, 1948, between a bus of the Valley Greyhound Lines, Inc., and a truck operated by Stanley Forrest Davis. In the collision, Elsie Marcia Rhodes, aged six years, was killed, and Louise Rhodes claims to have suffered some personal injuries. They were passengers on the bus. These two actions were filed on April 28, 1949, in the Court of Common Pleas of Ross County, Ohio, to recover damages. The proceedings in the two cases have been identical and therefore the two cases will be considered as one.

A summons was issued for the Valley Greyhound Lines, Inc., on April 28, 1949. Its return day was on May 9, 1949. On May 10, 1949, the sheriff filed his return, in which he certifies, “At 2 o’clock p. m., on May 7, 1949, I served the within named Valley Greyhound Lines, Inc.” On May 27, 1949, Valley Greyhound Lines, Inc., appeared specially, denying the jurisdiction of the court over its person, and moved to quash and set aside the pretended service of summons and sheriff’s return. The journal entry ruling on this motion contains the following two paragraphs:

“It is, therefore, ordered, adjudged and decreed that said motion to quash the service of summons herein on Valley Greyhound Lines, Inc., be and it hereby is overruled and that the motion to set aside the return thereon be and it hereby is sustained.
“And it appearing to the court that there is now no return on said service and that no lawful return thereon can be made, it is further ordered that said service of summons be set aside.”

This journal entry was filed June 23, 1950, and on the same day an alias summons for the defendant was issued. The sheriff’s return was filed July 3, 1950, and on July 20, 1950, the defendant, by special appearance, moved to quash and set aside the pretended service of summons and return thereon. This motion was sustained by an entry filed February 24, 1951.

On August 22, 1950, an alias summons was issued for the defendant. The return of the sheriff was filed August 30, 1950. On October 5, 1950, the defendant, by special appearance denying the jurisdiction of the court over its person, moved to quash and set aside such pretended service of summons and the return thereon. This motion was sustained by an entry filed February 24, 1951. On February 27, 1951, another alias summons was issued for the defendant, and the sheriff’s return, filed March 3, 1951, shows pretended service on February 28, 1951. On March 21, 1951, the defendant, by special appearance, moved to quash and set aside such pretended service of alias summons and return thereon.

On October 3, 1951, the trial court, on its own motion, after having given notice to attorneys for both parties and after oral argument, put on a journal entry finding that the journal entry dated June 23, 1950, was inconsistent and did not express correctly the ruling of the court on the first motion filed by the defendant to quash service of summons on said defendant, and, by a nunc pro tunc order, directed the second paragraph above quoted from said journal entry of June 23, 1950, be stricken from the entry as a part of the decision and order of the court.

An examination of this journal entry of June 23, 1950, clearly discloses that it is inconsistent. In one paragraph the motion to quash the service of summons is overruled and in another paragraph the service of summons is set aside. After deleting the second paragraph of said entry above quoted, the trial court, by the nunc pro tunc order of October 3, 1951, overruled defendant’s motion to quash the service of summons but sustained the motion to set aside the return thereon.

On September 26, 1953, the trial court overruled defendant’s motion, filed March 21, 1951, to quash and set aside the pretended service and return thereon of the summons issued February 27, 1951. It is from that order the defendant now appeals.

It should be observed that the ruling of the court of September 26, 1953, overruling defendant’s last motion to quash service of summons and the return thereon is the only final order in all these proceedings from which an appeal could be taken by either party. In none of its rulings on said motions did the court dismiss plaintiff’s petition and render final judgment against the plaintiff. The defendant had no right of appeal until after the statute of limitations had run against the commencement of such action for damages. In other words, the defendant was denied no substantial right until after it could claim the running of the statute of limitations. In each case the two-year statute of limitations applies. Sections 11224-1 and 10509-167, General Code (Sections 2305.10 and 2125.02, Revised Code), respectively. In this state of the record, a reviewing court may consider the entire record to determine whether or not the trial court acquired jurisdiction over the person of the defendant.

As we view the record, this situation does not call for the application of the plaintiff’s right to amend the sheriff’s return as provided by Section 11363, General Code (Section 2309.58, Revised Code). The sheriff’s return, although filed one day after the return day, is regular on its face and certifies to the fact that the defendant was properly served with summons on May 7, 1949. There is no defect in the return that requires correction by amendment. The question is whether the sheriff’s failure to file his return on or before the return day thereon renders the service of summons void.

A “return” is in the nature of evidence and is evidence by which the court is informed that the defendant has been given legal notice to appear in court. As stated in Paulin v. Sparrow, 91 Ohio St., 279, at page 289, 110 N. E., 528:

“The important question is not whether the return of service is defective, but rather, was the defendant in fact duly and legally served with process?”

This is a matter that is subject to proof, and the return, although filed one day late, is some evidence— in our opinion it is prima facie evidence — of such fact. It will be noted that the defendant’s attack is not on the service of summons, but rather on the proof of such service — i. e., the sheriff’s return. The service of process and not the return gives the court jurisdiction over the defendant. Gunter’s Unknown Heirs v. Lagow (Tex. Civ. App.), 191 S. W. (2d), 111. The case of Rowe’s Admr. v. Hardy’s Admr., 97 Va., 674, 34 S. E., 625, 75 Am. St. Rep., 811, is a parallel case in which it is held that in the absence of evidence to the contrary, a sheriff’s undated return on an execution is presumed to have been endorsed thereon while he had a right to make the same, though the execution was not returned or filed with the clerk until after the return day, and that the execution is competent record evidence on its being filed with the clerk, though filed after the return day.

42 American Jurisprudence, 104, Section 117, on the subject of Process reads as follows:

“It is not the return, however, but the service of the writ, that gives jurisdiction. The return is merely evidence by which the court is informed that the defendant has been served. The failure to return the summons with the proof of service does not go to the extent of depriving the court of its jurisdiction over the person of the defendant who has been properly served where proof of such service has been made in a manner provided by law. If the officer fails to return the writ, he may be compelled so to do by the court.” ■

After a consideration of the entire record, we reach the conclusion that the sheriff’s return on the first summons issued on April 28,1949, though filed one day after return day, is competent evidence and sufficient to show, in the absence of any evidence to the contrary, the defendant was legally and lawfully served with summons on May 7, 1949; that the issuance and service of all subsequent summonses were unnecessary and were superfluous proceedings for the reason that the court acquired jurisdiction over the person of the defendant on the service of the first summons that was issued, ample and competent proof of which was contained in the sheriff’s return thereon, though it was filed one day after return day.

Jurisdiction of the court having attached on the service of the first summons, the court continues to have jurisdiction to make final disposition of the case.

Whatever the reason may have been for issuing the summons February 27, 1951, the defendant could not have been prejudiced thereby. Therefore, the trial court was correct in overruling defendant’s motion to quash and set aside the service of the alias summons and the return thereon.

The judgments of the trial court are affirmed and these causes are remanded to the Court of Common Pleas for further proceedings according to law.

Judgments affirmed.

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


author: Hornbeck, J.

text:
    Lewis, Exr., Appellee, v. Board of County Commrs. of Franklin County, Appellant.

      (No. 5012
    Decided February 26, 1954.)

      Mr. Carl H. Valentine, for appellee.

      Mr. Frank H. Kearns, prosecuting attorney, and Mr. Paul W. Martin, for appellant.
   Hornbeck, J.

This is an appeal on questions of law from a judgment of the Probate Court on the pleadings upon the motion of plaintiff. The action was instituted by the plaintiff, executor, for the construction of the last will and testament of Lewis Fink, deceased, and particularly item II thereof.

The pertinent item reads:

“Item II. I give and devise my home, which includes the cottage in which I have resided and the tract of about fourteen (14) acres of land on which it is situated, fronting on High Street, Columbus, Franklin County, Ohio, to the county of Franklin of the state of Ohio, for the purpose of being kept, maintained and operated as a home for old ladies, to be known as the ‘Elizabeth Morton Fink Home’; and I give, devise and bequeath to said county of Franklin of the state of Ohio, all the rest and residue of my estate, both personal and real, of every kind and description and wheresoever situated, which I may own or have the right to dispose of at the time of my decease, to be expended by said county in the construction, maintenance and operation of said home.”

The petition alleges that plaintiff had been advised by the Prosecuting Attorney of Franklin County, Ohio, that the defendant board “is not willing to accept the aforesaid devise and bequest if the acceptanee thereof will obligate it to keep said fourteen (14) acre tract of land * * * and to construct, maintain and operate thereon a home for old ladies, to be known as the ‘Elizabeth Morton Fink Home,’ and to expend the aforesaid personal property and money in the construction, maintenance and operation of said home,” as provided in the will, and that the Prosecuting Attorney of Franklin County has advised the defendant that it can accept such real estate, personal property and money without meeting the terms of the will.

The prayer of the petition is for a construction of the will, requiring the defendant to keep such land intact and to construct a home as provided in the will, and that the defendant be required to either formally accept the devise and bequest and to express its intention to conform to the provisions of the last will and testament, or to reject the devise and bequest and to disavow any rights under such last will and testament.

Defendant by answer says, “that it would be impractical and inexpedient for them to adhere strictly to the provisions set forth in item II of the will attached to the petition; that it is their present intent to make such use and disposition of the real estate and personalty granted under said item as would be practical and expedient”; that pursuant to a request of the board, the Prosecuting Attorney of Franklin County had rendered an opinion wherein it was determined that the grant set forth in item II of the will is an absolute grant to Franklin County; that the title is not a determinable fee but a fee simple; and that, in accordance with such opinion, defendant adopted a resolution accepting the grant.

The resolution, after setting forth item II of the will of Lewis Fink, reads:

“Be it resolved, by the Board of County Commissioners of Franklin County, Ohio, that the property devised to the county of Franklin, state of Uhio, by the aforesaid will of Lewis Fink, deceased, be and it hereby is accepted.”

The prayer of the answer is that the will be construed m favor of the defendant determining that the title of Franklin County to the property described in the will is a fee simple title and not a determinable fee; that the devise of all property in the will to Franklin County conveys all tfie estate of the testator therein to the county; tliat there is no provision m the will for forfeiture or reversion; that tiie failure of the devisee, Franklin County, to use the property as set forth m said will shall not cause title to revert to the heirs of the testator; and that the statements set forth in item II of the will as to the purpose for which the property is to be used do not constitute a condition subsequent, so as to debase the fee of the devisee when the condition has been broken.

To this answer, the plaintiff replied, admitting the procedure and contention of the defendant as set forth in the ansv er, but denying that the opinion of the prosecuting attorney is supported and m accordance with the law controlling construction of the will under consideration. At this juncture, the motion of the plaintiff for judgment on the pleadings was interposed.

This motion sought a judgment in favor of the plaintiff: on the pleadings, declaring and adjudicating that the defendant has refused to carry out the desires of the testator, as expressed in his last will and testament, with respect to the property therein devised and bequeathed to them; that such refusal amounts to a renunciation of the devise and bequest; that by reason thereof the devise and bequest contained in item II of thé will of Lewis Fink in favor of Franklin County has failed; and that Franklin County is forever barred, of any right, title, interest or estate in any property whatsoever, thereunder. : .

The motion was sustained and, pursuant thereto, the court found that by item II of the will the .testator had created a charitable trust operating upon the property described in the petition; that the defendant did not acquire fee simple title as alleged in the answer; that the defendant has not accepted the trust; and, therefore, that the answer is tantamount to a renunciation of same. It was decreed .that the defendant has no. right, .title, estate or .interest in or to the real estate and personal .property described in the petition, or any part .thereof, and the plaintiff was authorized not to cause any transfer of the premises to be made on the tax duplicate of Franklin county and not to pay over any monies .of the estate or transfer any personal property .of the estate to the.

defendant. ' .......■. ........

. The respective contentions, of the parties are. set forth in the pleadings, and the. motion heretofore recited. Defendant, in its answer, cites the cases upon which the prosecuting attorney relied in his opinion to the defendant board, that the title granted was in fee simple..

We have the written opinion of the trial .judge in which he determines, first, that item II of the will created a charitable trust, that the. defendant. board was named the trustee, and.that the item did not create a. fee simple title in the real estate and full interest in the personal property in.the defendant; secondly, that the resolution of the board accepting the property devised.in item II of the will of testator, in connection with the. answer that it was not practical or expedient to carry out the provisions as to the use and disposition, of real estate and personal property of testator and the opinion of the prosecuting attorney that the board had a fee, was tantamount to a renunciation of the trust.

We, are in accord with the opinion and judgment of the trial court that the item of the will under consideration creates a charitable trust. An examination and observation of the item is conclusive that its dominant purpose is to cause a “home for old ladies” to be maintained and operated from the avails of the property, real and personal, mentioned in the item. It will be noted that there is no language in the item clearly creating a fee in the board without qualification and that there is but one sentence in the operative language of the item. It is not that type of will wherein in the first part of an item a devise is clearly made to a named person and thereafter an attempt made to cut it down. The cardinal rule that the intent of a testator must control the construction of a will clearly requires the holding here that a trust is created. There is no controversy here between heirs who are asserting that by reason of the fact that there is no reversionary clause in the will, title should revert to them.

We do not discuss the cases cited by defendant because we do not believe they are controlling, as they involve, in the main, conditions subsequent in the deeds, and a construction of the language of the instruments under consideration in such cases permitted the conclusion that there was no intention to qualify the fee simple estate granted.

Here, testator has granted a title in - fee to the board which has the legal title, but the equitable title is in the beneficiaries of the trust.

Without further discussion, we are satisfied to hold with the trial court that a charitable trust is created by item II of the will under consideration.

We are not in-accord with the judgment wherein it determines that the board, by its action, has lost all interest in the property mentioned in item II of the will.

Insofar as the official action of the board appears, it is in the resolution accepting, without qualification, the devise and bequest in item II of the will. However, the board took the position in the trial court that it had determined, upon the advice of its legal counsel, that in the acceptance it was taking a fee simple title without qualification. This contention of the board was predicated upon a misconception of the law.

The principle of estoppel will not operate to require the holding that the board by its answer renounced the trust, and that it is bound by such action. If one be ignorant of his rights, whether fact or law, there can be no estoppel. Westwater, Admr., v. Guitner, 18 N. P. (N. S.), 209, 30 O. D., 370. Knowledge on the part of one sought to be estopped of his rights is an important element of equitable estoppel. Ensel v. Levy, 46 Ohio St., 255, 19 N. E., 597; Pennsylvania Co. v. Platt, 47 Ohio St., 366, 25 N. E., 1028.

The board has had no opportunity to determine whether it would accept the devise and bequest of item II of the will upon the conditions therein expressed with full conception of the obligation thereof. It does not necessarily follow that because it is inexpedient or impractical to carry out the specific terms of the will, that it may not be effectuated in some other manner recognized in equity.

Until the board can act with full conception of its rights and obligations as trustee and the scope and limitations of the trust, it should not be charged with positive renunciation of the trust. This determination as to the trust could have been assured had it been requested in the action to construe the will.

The doctrine of cy pres, deviation and approximation, in the construction of charitable trusts in effectuating the purpose of the testator with respect to the beneficiaries has been frequently recognized. This court, in the case of Craft, Exrx., v. Shroyer, 81 Ohio App., 253, 74 N. E. (2d), 589, applied the doctrine of deviation in a charitable trust and discussed the doctrine at length.

We express no opinion as to the application of the foregoing principles to the trust here created, and it may be that the board will now want to formally renounce the trust, but until this aspect of the trust is considered and determined, the board cannot act with full knowledge of its obligations and rights.

We, therefore, affirm the judgment with the modification as herein indicated.

Judgment modified and, as modified, affirmed.

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


author: Deeds, J.

text:
    Rockwell et al., Appellants, v. Ohio Turnpike Commission, Appellee.

      (No. 677
    Decided October 11, 1954.)

      Messrs. Young & Young, for appellants.

      Mr. John L. McCrystal and Mr. James L. Stegmeier, for appellee.
   Deeds, J.

This is an appeal on questions of law from a judgment of the Court of Common ■ Pleas of Erie County entered upon the-verdict of a jury’awarding compensation and damage to the appellant landowners in an appropriation proceeding by the appellee, Ohio Turnpike Commission.

The case is before this court for review upon the transcript of the record of the proceedings in the Court of Common Pleas, a bill of exceptions and the oral arguments and briefs of counsel for the respective parties. The appellants will be referred to herein as the landowners and the appellee as the commission.

This court has given consideration to each of the appellants’ six assignments of error. Nevertheless, in view of the conclusion which the court has reached that the judgment should be reversed and the cause remanded for a new trial, specific reference will be made herein only to the assignments as have been considered as well taken, as follows:

1. The court erred in rejecting evidence.

2. The court erred in refusing to instruct the jury before argument as requested by appellants.

3. The court erred in its general charge to the jury.

Assignments numbered 4 and 5 are considered as not well taken, as not being supported on the record. Number 6 relates to the overruling by the court of a motion for a new trial and requires no comment.

The extent or aggregate area of land being appropriated by the commission in the proceeding consists of approximately ten acres, about nine acres of which is a diagonal strip of land extending across and through the southwesterly part of the landowners’ 96-acre farm. Such strip of land results in the isolation of two additional small areas, not thereafter being of. any use or value to the landowners, and all of which has resulted in the creation of irregular boundary lines in the remaining land of the landowners.

In addition to the fee in the land appropriated, the application of the commission also includes specific and separate appropriations of two permanent easements for drainage purposes for the construction of drainage facilities consisting in part of one pipe, 72 inches in diameter, and one or more smaller pipes for carrying water, a portion of which facilities are to be constructed adjacent to and either under or partially above the surface of the remaining land of the landowners.

The application also included as being appropriated all rights to erect any billboard, sign, notice, poster or other advertising device on the remaining lands of the landowners, which advertising devices would be visible from the traveled portion of the turnpike. It is sufficient to state in reference to such attempted appropriation of advertising rights that the Supreme Court of the state has determined that the Turnpike Act does not authorize the commission to appropriate such billboard and advertising rights of a landowner. Ellis v. Turnpike Commission and Solether v. Turnpike Commission, 162 Ohio St., 86, 120 N. E. (2d), 719.

We will consider first the second assignment of error, as the first and third assignments relate to the subject of easements for drainage purposes and can be, with advantage, considered together. The second assignment is based upon the refusal by the trial court to give to the jury, in advance of the argument of counsel, four of the five special instructions requested by counsel for the landowners.

Three of those special instructions, requested and refused by the trial court, we find were not correct statements of the law and, therefore, the refusal to give such instructions was not prejudicial to the landowners.

Special instruction number 4 is as follows:

“The court instructs you that the owners herein are entitled to recover not only for the strip of land actually taken and appropriated by the Ohio Turnpike Commission but such owners are also entitled to recover damages for any injury directly and proximately resulting to the residue of the remainder of the property because of the appropriation and because of the severance of such strip of land from the residue. Your consideration of this, therefore, after you have determined and assessed the compensation to be paid to the owners for the land actually taken and appropriated by the Ohio Turnpike Commission — you will then proceed further to determine and assess the damages to be paid to the owners by the Ohio Turnpike Commission for any injury directly caused to the residue or remainder of the property because of the severing and appropriation of such strip of land and in determining such damages to the residue of the property you may consider the relative location of the property which has been severed and taken with reference to the residue. ’ ’

We find that instruction- number 4 was a correct statement of the law applicable to the issue to which it was pertinent and that the refusal of the court to give such instruction amounted to error prejudicial to the landowners.

Cleveland & Pittsburg Rd. Co. v. Ball, 5 Ohio St., 568, 21 A. L. R., 70; Grant v. Village of Hyde Park, 67 Ohio St., 166, 65 N. E., 891; In re Appropriation of Easement for Highway Purposes, 93 Ohio App., 179, 112 N. E. (2d), 411.

In considering the two remaining assignments of error, having reference to the exclusion by the court of certain testimony relating to probable damages resulting from the easements being appropriated for drainage purposes and error relating to the general charge of the trial court which failed to include a definition or explanation of the issues of fact presented by the specific appropriation by the commission of the two separate and independent easements for drainage purposes, it is a significant fact that such appropriations are in addition to the actual land taken, and are, also, independent of and in addition to the damage sustained by the landowners occasioned directly as a result of the land taken.

With further reference to that subject, this court has been impressed by the lack of any reasonably clear proof in the record of the nature and character of the specific easements sought to be appropriated for drainage purposes, although it is apparent to this court that evidence and full information were available to either party and that it was the responsibility of both parties, in proceedings in which private property is being appropriated to a public use, to present proof of a character such as would fully and fairly apprise the court and jury of the extent and nature of the rights and property of the landowner which the commission was seeking to condemn and appropriate.. 15 Ohio Jurisprudence, 888, Section 197; Martin v. City of Columbus, 101 Ohio St., 1, 127 N. E., 411.

This court does not undertake to suggest the manner in which such proof should be adduced, nevertheless we feel that it is appropriate to comment that obviously in the case before us there was, of necessity, evidence available consisting of plans, specifications and engineering information which would disclose clearly the character and extent of the proposed drainage facilities to be constructed, also the necessity and purpose of such facilities, so that the probable effect upon or damage to the property of the landowners could thereby be determined on a factual basis without conjecture, with the purpose of arriving at a just determination respecting the rights of the parties. Notwithstanding a lack of clear proof, of which, in the view of this court, the subject was susceptible, there was certain testimony offered and received by the court which, upon motion, was excluded, relating to probable damage resulting by reason of the easements for drainage purposes, which testimony this court considers to have been pertinent, relevant and competent, which was in part as follows:

“ Q. Is there any outlet, that you know of naturally, for the water that comes over that way? A. 1 have an outlet, but there is no outlet for the ditch that they are making. 1 have no outlet for the ditch. I call it a ditch. Maybe they don’t.
“Q. Where it extends, is the land low or high? A. No, it runs on just an ordinary line.
“Q. Does it slope? A. I call it a natural pitch across there.
“Q. A natural place, and the jury saw it? A. Well, they could.
“Q. It was seeable yesterday. A. They could see it.
“Q. Now, in your opinion as a farmer, what do you think will happen, if that land gets soft? Will it be possible to use a tractor? A. No.
“Q. In your opinion what amount of land not ap^ propriated will be taken by that as you testified? A. Well, there are several tile leading to the sixfincb tile.
.■ “Court: Just answer the question. . Just a minute. A. My tile.
“Court: He asked you how many acres. A. O. K. 1 will say from ten to fifteen acres, if .that is the question. . •
“Q. Now to go back, is there any other change proposed that you can see except the elevation.” .
Cross-examination by Mr. McCrystal:
“Q. Mr. Rockwell, what is the natural drainage, from the northeast? A. I would say practically that is correct. ' ■
“Q. None of these tile, as far as you know extend beyond the limits of the part shown in blue, which is the part being appropriated in fee simple? A. What do you mean ?
“Q. The seventy-two inch tile and the twelve-inch tile are both contained within this blue strip? A. Not that I know of.
“Q. They don’t ran up there? A. They don’t as far as I know. That has not been explained to me.
“Q. They don’t as far as you know? A. They don’t as far as I know.
“Q. Can you indicate to the court and jury which fifteen acres are affected by the drainage? A. Well, this here land back in here all my land. The water runs this way’, and on some of the land, there will be water, and the tile runs down in here.
“Q. Will that water still run into that tile? A. Absolutely, only when you have a flood, your water will go in here (indicating) first, and you won’t have a chance to get out there. ’ ’ #
“Q. Where is the water that falls over in this part of your farm (indicating on map). Where does that drain ? A. In that tile.
“Q. This is the tile (indicating)? A. Yes.
“Q. Where does it drain? A. Right in there, where you are pointing.
“Q. Where does it go? A. It goes on until it gets to — it goes down this way a little and down through Koch’s and Mrs. Ohlemacher’s.
“Q. That is the way that the water goes now, before the turnpike? A. Yes.
“Q. The water goes down here (indicating)? A. My land up here (indicating) ail naturally leads into one tile.
“Q. That is the way that the water goes that falls in this area? A. Yes.
“Q. And that is the natural drainage? A. Yes.
“Q. And as far as you understand it, it is to be an open ditch? A. That is what 1 call it.
“Q. It is not to replace any tile that are already there? A. They said nothing to me about it.
“Q. As far as you know? A. As far as I know, it doesn’t.”

This court finds that the action of the trial court in granting the motion of counsel for the commission, and thereby excluding the foregoing testimony and other testimony of like import from the consideration of the jury, was error prejudicial to the landowners.

It is the considered view of this court also that the specific appropriation by the commission of easements for drainage purposes presented a distinct and separate issue of fact which afforded the basis for compensation for the taking of the easements as well as the assessment of damages to the remaining property resulting from such taking, and that it was the duty of the trial court to make specific reference to such subject or issue so presented and to instruct the jury concerning a consideration of same.

The failure on the part of the trial court to separately define and specifically instruct the jury regarding such subject or issue of fact amounted to error prejudicial to the landowners. Lake Shore Electric Ry. Co. v. Shepherd, 48 Ohio App., 167, 192 N. E., 740; Souder v. Hassenfeldt, Admx., 48 Ohio App., 377, 194 N. E., 47; Baltimore & Ohio Rd. Co. v. Lockwood, 72 Ohio St., 586, 74 N. E., 1071; Simko v. Miller, 133 Ohio St., 345, 13 N. E. (2d), 914.

Before concluding this opinion, in view of the questions which have been raised in the case before us for .review relating to the admissibility and competency of evidence, we deem it appropriate to recognize and comment briefly concerning the confusion which has arisen with respect to the decision of this court in the case of In re Appropriation of Easement for Highway Purposes, supra. We consider that the law of that case as applicable to the fact issues raised therein was stated correctly in the syllabus of the reported decision as follows:

“1. In determining the amount of award to be made to an owner by way of compensation and damages as a result of land being appropriated for highway purposes, the following elements are to be considered: (1) The fair and reasonable market value of the property taken; and (2) the reduced value of the residue, after severance of the property taken and without deduction for benefits, except special, if any, and considering the effect upon such residue of the uses for which the appropriation is made.
“2. The inquiry being thus limited, examination of witnesses should be confined in the establishment of these elements, saving always the right to liberal cross-examination. ’ ’

The apparent confusion or misconception seems to have arisen by reason of a statement in the opinion of the case appearing at page 183 of the report as follows :

“It follows, therefore, that there are but three questions to be propounded to a witness, subject to the right of cross-examination residing in the adverse party, namely, (1) what is the fair and reasonable market value of the area sought to be appropriated; (2) what is the fair and reasonable market value of the residue prior to the appropriation; and (3) what will be the fair and reasonable market value of the residue after the appropriation, the difference between the two latter figures reflecting the damages. 15 Ohio Jurisprudence, 841, Section 151, and authorities therein cited.”

It is the .view of this court that it was not intended by the writer of the opinion, which includes the foregoing statement, that the parties should be restricted to only certain prescribed questions in the interrogation of witnesses, nor is it intended by this court to undertake to direct, the manner in which the testimony should be elicited from the witnesses in trials involving the appropriation of property.

It is the considered view of this court that counsel for the respective parties should not be limited or restricted to any prescribed method in the examination of witnesses, but, to the contrary, should be free to pursue a course deemed best suited by them to develop fully the testimony and all competent evidence relevant to the issues involved in each particular case, subject only to the established rules governing the trial of civil actions generally. 15 Ohio Jurisprudence, Eminent Domain (Evidence), 888, Sections 196 to 198.

By reason of the errors referred to herein, the judgment of the Court of Common Pleas is reversed and the cause remanded to that court for a new trial.-

Judgment reversed and cause remanded.

Fess and Conn, JJ., concur.


text:
    Wabash-Portland Cement Co., Appellee, v. State of Ohio, Department of Highways, et al., Appellees; Contractors Construction Co. et al., Appellants.

      (No. 5074
    Decided October 1, 1954.)

      Mr. James R. Spellman, for appellee Wabash-Portland Cement Company.

      Mr. C. William O'Neill, attorney general, and Mr. Hugh E. Kirkwood, Jr., for appellee Department of Highways.

      Mr. Nicholas Bauer and Mr. E. G. Schuessler, for appellant.
   Miller, J.

This is an appeal on questions of law from an order of the Common Pleas Court of Frannlin County, overruling the appellant’s motion which sought to have a former order made at a prior term of court, set aside. The order complained of was entered on June 30, 1953, and is as follows:

“For good cause shown, the above entitled action is replaced upon the active list.
(Signed) Bartlett, Judge.”
The aforesaid order vacated the following judgment entered on May 12, 1953:
“By agreement of the parties hereto, this cause may be dismissed with prejudice and without record at costs of plaintiff and court orders said funds held by the Highway Department of the state of Ohio to be the property of the defendant, the Contractors Construction Company.
(Signed) Bartlett, Judge.”

After the above order was vacated, to wit, on September 26, 1953, the record discloses a judgment was rendered for the plaintiff and against the state of Ohio, Department of Highways, for the amount sought in the petition. The other defendant, appellant herein, the Contractors Construction Company, was claiming the money which had been awarded to the plaintiff, and soon thereafter, on October 23, 1953, filed this motion to vacate the order of June 30, as well as the judgment entered on September 26, 1953. The motion set forth the following irregularities in obtaining the order:

“ (1) Said orders were made without notice to this defendant.

“(2) Said orders were made without written application therefor by any parties to this action.

“(3) * * *.

“(4) For other irregularities apparent upon the reeord.”

The court properly sustained the motion to vacate the judgment entered in behalf of the plaintiff and against the state of Ohio, but overruled the motion seeking a vacation of the order of June 30, to wit, the order placing the case again on the active list. It will be noted that the order vacating the judgment of dismissal with prejudice was entered during the same term that the order was made reinstating the case on the active list. The law seems to be well established that since the Legislature of Ohio has failed to provide for the vacation or modification of judgments during the term, the common-law rule must apply. Under this rule a court of general jurisdiction has full control over its orders or judgments during the term at which they are made, and may, on sufficient cause being shown, amend, correct, open, or vacate such judgments. 23 Ohio Jurisprudence, 1216, Section 1121; 49 Corpus Juris Secundum, 436, Section 229. The courts have uniformly held, however, that this power may not be exercised arbitrarily, but must be exercised within the sphere of a sound discretion. First National Bank of Dunkirk v. Smith, 102 Ohio St., 120, 130 N. E., 502; Moherman v. Nickels, 140 Ohio St., 450, 45 N. E. (2d), 405, 143 A. L. R., 1174; Tims v. Holland Furnace Co., 152 Ohio St., 469, 90 N. E. (2d), 376. The questions, therefore, presented are two-fold:

(1) Did the court abuse its discretion in entering the order of June 30 reinstating the case on the active list?

(2) If so, was the same irregularly obtained so as to permit its vacation at a later term of court under Section 2325.01, Revised Code?

We are of the opinion that both of these questions must be answered in the affirmative. The record does not show any defect or irregularity in the order of dismissal with prejudice on May 12, which could constitute good cause for again placing the cause on the active list. It should also be noted that no motion was filed setting forth any good cause for vacating the order. Therefore, the record discloses no reason for the reinstating of the case on the active list. The procedure in securing said order was not regular as counsel for the appellant had no notice of the same, hence, no opportunity to be heard. Sullivan v. Cloud, 62 Ohio App., 462, 24 N. E. (2d), 625. The motion met the requirements of Section 2325.01, paragraph (C), Revised Code, and should have been sustained. The order appealed from will be reversed and the cause remanded with instructions that the motion to set aside the order of June 30, 1953, be sustained.

Order reversed.

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