text:
    McPherson, Appellee, v. McPherson, Appellant.
    (No. 447
    Decided May 20, 1949.)

      Mr. Michael E. Morris, for appellee.

      Mr. Richard R. LeFevre, for appellant.
   By the Court.

This is an appeal on questions of law from a judgment of the Juvenile Court of Miami County. The record discloses that on November 8, 1935, the Court of Common Pleas of Miami County entered a decree of divorce in favor of Mary Lee McPherson against Ronald A. McPherson, awarded custody of Alan McPherson, a minor child of the parties, to Mary Lee McPherson, and ordered Ronald A. McPherson to pay the sum of $5 per week to Mary Lee McPherson as support for the child until further order of the court.

On the 30th day of December 1935, the Court of Common Pleas certified the cause to the Juvenile Court of Miami County, so far as the same related to matters of support and custody of the minor child, and all subsequent proceedings were before the Juvenile Court. This cause came before the Juvenile Court upon the motion of Mary Lee Tackett, formerly Mary Lee McPherson, to strike from the files the motion of Ronald A. McPherson which sought to reduce the amount of support which had accrued under the former order of the court. The court sustained the motion to strike and found the motion of Ronald A. McPherson to be insufficient as a matter of law.

The ultimate question presented by this appeal is whether, upon the granting of a decree for divorce, an award for the support of a minor child, payable in weekly installments, is subject to modification as to installments which have accrued and are unpaid. No gross sum was ever fixed by the trial court and it is for this reason that the appellant urges that no right exists for a judgment in any specific sum. The trial court held in effect that the past due installments constituted a judgment and were not subject to modification.

The question presented here is not one of first impression, as only last year this court passed upon the identical question in the case of Bush v. Bush, 82 Ohio App., 255, 75 N. E. (2d), 832, the syllabus of whieh reads:

“A divorce decree,.incorporating a separation agreement of the parties, which agreement provides for the payment of weekly support money- for their children until they reach the age of eighteen years, constitutes such a judgment that execution may be levied thereon for past due installments without first carrying into separate formal legal judgment the total amount of the installments then due under the terms of the- decree.”

The decision in that case cites the authorities relied upon and it would serve no useful purpose to again restate our reasons for so holding. We might add several additional authorities which are not cited in the Bush case, supra, which we think are also controlling-

In Armstrong v. Armstrong, 117. Ohio St., 558, 160 N. E., 34, the syllabus reads:

“1. A judgment for alimony payable in installments rendered upon entering a decree for divorce constitutes a final judgment within the full faith and credit, clause of the federal Constitution so far as accrued installments are concerned, no modification of the decree having been made prior thereto, unless it appear from the law of the jurisdiction • lyherein the decree was granted that the power of modification expressly retained extends .to accrued as well as to future installments of. alimony. .... ;

“2. Where a divorce was regularly decreed by a Kentucky court and a sum payable in installments was awarded as alimony and for the support and maintenance of children of the parties and there has been no modification of such judgment it.will be enforced by the courts of Ohio under the full faith and credit clause of the federal Constitution.”

The only distinction of substance that we are able to find between the .instant case and the Armstrong case is that in the latter the action to recover the default installments of alimony was predicated upon an alimony decree made by the Circuit Court of Campbell County, Kentucky. If it should be found that under the laws of the state of Kentucky a different rule would prevail than in Ohio, then it. would naturally follow that the Armstrong case would not be .accepted as a precedent. A reading of the entire, case will disclose-that the Supreme Court did not predicate its holding upon any peculiar provisions of the law, but rather announced the principle upon the rule of reason that accrued alimony payments are in the nature of judgments and are not subject to modification, unless the entry making the order specifically provides that past due as well as subsequent payments may be modified by the court making the original judgment; also in the case of Aukland v. Aukland, 17 Ohio Opinions, 387, 31 N. E. (2d), 731, this Court of Appeals followed the ruling in the Armstrong case, supra, paragraphs three and four of the syllabus (as reported in Ohio Opinions), read:

“3. Where an order has been made to pay a stipulated amount in installments, an action may be brought to recover all defaults in payments.

“4. Default alimony payments are in the nature of judgments and are not subject to modification unless the entry making the order specifically provides that past due as well as subsequent payments may be modified by the court making the original judgment.”

The case of Gilbert v. Gilbert, 83 Ohio St., 265, 94 N. E., 421, also supports the views we have taken. In that case the court makes a distinction where the decree is for alimony alone, from one granting a divorce and alimony. The second paragraph of the syllabus of that case provides:

“A decree for alimony payable in installments in a suit for alimony alone in one state will not support an action as on a final judgment for a fixed sum in another state.”

In the opinion in that case, at page 269, Johnson, J., comments:

“In rendering a decree for alimony alone the court necessarily has in view that the marital contract still exists; that the parties are still bound by all its mutual obligations; that they may become reconciled and that the grounds and the desire for the allowance may be wiped out at any time. A decree in such a case is continually subject to modification, while in rendering a decree for divorce and alimony the court determines the ultimate relation of the parties and fixes the amount and the mode of payment of any money or property allowance to the wife. And when there is a divorce in a proceeding in which the wife is in court asserting her rights and asking- for affirmative relief, she is concluded by the decree in that proceeding.

C 6 * * *

“It follows, of course, that if alimony claims are adjusted in the decree in such a proceeding- the parties are equally bound.”

We recognize that the holdings of the various Courts of Appeals in this state are not uniform on this question; that Meister v. Day, 20 Ohio App., 224, 151 N. E., 786; Collins v. Collins, 79 Ohio App., 329, 73 N. E. (2d).. 814, and several others are in conflict with our view and upon proper application we will so certify.

We are of the opinion that there is no error in the record and the judgment is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
    The State of Ohio, Appellee, v. Carpenter, Appellant.

      (No. 370
    Decided November 26, 1949.)

      Mr. J. R. Leopold, prosecuting attorney, for appelee. Mr. Elmer McClain, for appellant.
   By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Putnam County, convicting and sentencing the appellant, Harold Carpenter, for the malicious destruction of property of the value of less than $100, as charged in an affidavit filed in such court by the sheriff of the county.

One of the assignments of error is that the court was without jurisdiction to render such judgment and sentence.

Under the provisions of Section 12477, General Code, prescribing the offense charged in the affidavit, the value of the property destroyed being less than $100, the offense charged is a misdemeanor.

Section 13422-5, General Code, prescribes:

“The Court of Common Pleas shall have original jurisdiction of all crimes and offenses, except in cases of minor offenses, the exclusive jurisdiction of which is vested in courts inferior to the Court of Common Pleas.”

In the above quoted section of the General Code the phrase “minor offenses” is used in the sense of “misdemeanors. ’ ’

Section 13437-34, General Code, as amended, 121 Ohio Laws, 121, effective August 23, 1945, prescribes:

“Prosecutions for misdemeanor may be instituted by the prosecuting attorney of the county by affidavit or such other method as may be provided by law in such courts as have original jurisdiction in misdemeanors. The provisions of law as to form and sufficiency, amendments, objections and exceptions to indictments and as to service thereof shall apply to such affidavits and warrants issued thereon.”

Before amendment, as above mentioned, that section provided as follows:

“In prosecutions for misdemeanor in the Court of Common Pleas, indictments by the grand jury shall not be necessary, but such prosecution may be upon information filed and verified by the prosecuting attorney of the county, or by affidavit where such method is by statute especially provided. The provisions of law as to form and sufficiency, amendments, objections and exceptions to indictments and as to the service thereof shall apply to such informations.” (113 Ohio Laws, 123.)

Considering together the original section and the section as amended, it is obvious that the affidavit prescribed by the section as amended is intended to take the place of the information prescribed in the original section, in the institution of prosecutions for misdemeanors, but that the requirement that such prosecution be instituted by the prosecuting attorney of the county is retained; and that the word “institution,” as used in the amended section, comprehends not only the filing of the affidavit by the prosecuting attorney, but also the verification thereof by him.

There are other statutory provisions conferring jurisdiction on the Common Pleas Court, in the prosecution of misdemeanors upon indictment by the grand jury, but there are no other statutory provisions conferring jurisdiction on the Common Pleas Court in the prosecution of misdemeanors except the statutory provisions as to prosecutions instituted by the prosecuting attorney upon affidavit as prescribed in Section 13437-34, General Code, as amended, as above mentioned.

Common Pleas Courts have only such jurisdiction of the prosecution of misdemeanors as is prescribed by statute.

In the instant ease the prosecution was instituted in the Common Pleas Court by the filing of an affidavit by the sheriff and verified by him, and was not instituted by the prosecuting attorney by affidavit verified by him, and consequently the Common Pleas Court had no jurisdiction of the prosecution as instituted.

As the Common Pleas Court was without jurisdiction of the offense charged in the affidavit of the sheriff, the judgment and sentence rendered by it is void, as contended by the appellant.

For this reason the judgment is reversed and final judgment rendered by this court discharging the defendant, at the costs of the state.

This judgment, however, does not constitute a bar to the prosecution of the defendant in the manner provided by law for the offense charged in the affidavit.

Judgment reversed.

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


author: Miller, P. J. Hornbeck, J.

text:
    Nagy v. Alvis, Warden.
    (No. 4283
    Decided June 1, 1949.)

      Miss Cecile Shapiro, for petitioner.

      Mr. Herbert S. Duffy, attorney general, and Mr. Walter R. Hill, for respondent.
   Miller, P. J.

This action comes before the court upon the petition of John G. Nagy for a writ of habeas corpus. The record discloses that the petitioner is in the custody of Ralph Alvis, warden of the Ohio state penitentiary, having been committed under authority of a sentence by the Common Pleas Court of Cuyahoga County, to serve a sentence of one to twenty years for automobile stealing. Prior to this conviction the petitioner had been arrested and convicted in the state of New York, having been released on parole. On April 18, 1949, he was paroled from the Ohio state penitentiary, the same to become effective when called for by the authorities of the state of New York which had issued and served upon the defendant a warrant for Nagy’s arrest as a parole violator from that state. The warrant was issued under the provisions of the “Compact for Mutual Assistance” between the several states and which is defined by Section 108-1, General Code.

The petitioner is contending that he has served his full sentence under the laws of the state of New York and therefore cannot be a parole violator, and that the facts set forth in the warrant are not true. The respondent is contending that the warrant as issued for the retaking of the petitioner is sufficient authority for the state of New York to retake him as a parole violator. In other words, the question as to whether he is a parole violator is one which must be decided by the state of New York and is not subject to review in Ohio. The respondent’s views seem to be well supported by Section 108-1, General Code, which provides in part:

“The governor of this state is hereby authorized and directed to execute a compact on behalf of the state of Ohio with any of the United States legally joining therein in the form substantially as follows:

“A compact entered into by and among the contracting states, signatories hereto, with the consent of the Congress of the United States of America, granted by an act entitled ‘An Act Granting the Consent of Congress to Any Two or More States to Enter into Agreements or Compacts .for Co-operative Effort and .Mutual Assistance in-the. Prevention of Crime and for Other Purposes,’ passed June.6,1934. (48 Stat., 909,.)

“The contracting states solemnly agree:

"* * *

“ (3) That duly accredited officers of a sending state may at all times enter a receiving state and there apprehend and retake any person on probation or parole. Eor that purpose no. formalities will be required other than establishing the authority of the officer and the identity of the person to be retaken. All legal requirements to obtain extradition of fugitives from justice are hereby expressly waived on the part of states party hereto, as to such persons. The decision of the sending state to retake a person on probation or parole shall be conclusive upon and not reviewable ivithin ,.the receiving state * * (Emphasis ours.)

It will he noted the statute provides that the decision of the sending state shall be conclusive upon and not reviewable within the receiving state. This clearly deprives the courts of this state of jurisdiction to inquire into the matters set forth in the warrant. The petitioner can be heard on this subject only in the courts of New York, This is a question of first impression in this state and petitioner cites no authorities to support his views. The record discloses that all the requirements of Section 108-1, General Code, have been met by the state of New York, and it is therefore entitled to the custody of the petitioner.

Petitioner remanded to custody.

Wiseman, J., concurs.

Hornbeck, J.

I concur in the judgment with my associates, but upon a somewhat different theory.

I am in agreement with the claim of the petitioner that if he is not on parole from New York state, then the Compact for Mutual Assistance, Section 108-1, General Code, has no application, and if the petitioner has served the full period of his sentence, then he is not amenable to any condition of parole. The act assures to the officer from the sending state that no question affecting violation of the terms of the parole shall be adjudicated in any other state than the state from which the parolee has been committed. No such claim is made here, the basic contention being that the petitioner has fully served his sentence and therefore may not be considered as “any person on probation or parole. ’ ’

But the action seeks an order of this court against the warden of the Ohio state penitentiary and the sheriff of Franklin county, removing the right of custody of the petitioner from both of them. It does not clearly appear that, under the conditions of the release by the state of Ohio to the state of New York, if satisfactory arrangement be not made for the prisoner’s return to New York, the release of the petitioner would be effective. In this situation the relief prayed cannot be granted even though we would hold that petitioner may not be returned to New York on the warrant for his arrest.


author: Wiseman, J.

text:
    In re Estate of Dickey.

      (No. 2071
    Decided December 19, 1949.)

      Messrs. Cowden, Pfarrer <& Grew, Messrs. Shaman, Winer S Shulman and Messrs. Landis, Ferguson, Bieser S Greer, for appellant.

      Messrs. Pickrel, Schaeffer & Ebeling, for executor of estate of Arthur C. Dickey.

      Messrs. Harshman & Young, for Gertrude Fisher Coiner.

      Messrs. Munger & Kennedy, for The Dayton Foundation.

      Mr. William M. Harrelson, for Riverside Cemetery and city of Troy.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Probate Court of Montgomery County, charging against the estate of the decedent the total expenses incident to the successful defense-of a will contest suit.

The decedent, Arthur C. Dickey, left a will in which he left numerous specific and general legacies and a specific devise of real estate, arid then left all the rest, residue and remainder of his property to the Third National Bank & Trust Company of Dayton, Ohio, in trust, the remainder of the corpus of the trust eventually to be paid over to the Miami Valley Hospital Society of Dayton, Ohio.

An action was brought to contest the will. The principal beneficiaries retained counsel in the will contest suit, but it is conceded that counsel for the executor, the Third National Bank & Trust Company, carried the burden in the defense of this action.

After the will was sustained, an application was filed in the Probate Court of Montgomery County for the allowance of compensation to counsel representing the executor in the will contest suit and other expenses in defending the suit. The court allowed compensation to counsel for the executor and charged the amount allowed and other expenses incurred in the defense of the action against the general assets of the estate. The total amount so charged amounted to $35,274.77. Under the order of the Probate Court the payment of this charge would result in a reduction to that extent of the value of the residuary estate. The entire estate was appraised at $336,842.19. A substantial amount will remain in the residuary estate after the payment of the charge.

Several grounds of error have been assigned, all of which relate to the same question raised by appellant, to wit: That the judgment of the Probate Court was erroneous in that it charged the total expense involved in the defense of the will against the estate as a part of the costs of administration without equitably apportioning the expense among the legatees and devisees under the will.

No question is raised relative to the amount fixed by the court as counsel fees for legal services rendered the executor in the will contest suit, or other expenses incident to the defense of this action. It is conceded that under the law of this state counsel fees may be allowed the executor in a successful defense of a will contest suit. See Andrews’ Exrs. v. His Admrs., 7 Ohio St., 143; Union Savings Bank & Trust Co. v. Smith, 4 C. C. (N. S.), 237, 16 C. D., 317, affirmed without opinion by the Supreme Court in 74 Ohio St., 505, 78 N. E., 1137; Weir v. Weir, Exrx., 7 C. C. (N.S.), 289, 18 C. D., 199; In re Estate of Raichley, 10 Ohio Law Abs., 298; 18 Ohio Jurisprudence, 440, Section 344.

The sole question for determination is: Should the compensation allowed counsel for the executor in the successful defense of a will contest suit, and other expenses incident to the defense of the action, be charged against the general assets of the estate, or should such compensation and expenses be apportioned equitably among the several legatees and devisees? The question presented is not whether the Probate Court in the instant case was authorized to apportion such compensation and expenses equitably among the legatees and devisees mentioned in the will of the decedent, but whether the court, under the law, was required to do so. We find no reported opinion in Ohio deciding this precise question.

It is conceded that the intention of the testator, if expressed in the will, would control. The trial court, in construing the will, found that it was the intention of the .testator to impose the expense of administration, including all the expense incident to the defense of the will contest suit, on the residuary estate. We examine the will to determine the intention of the testator. In item I, he directs his executor “to make payments from my estate, as soon as found practicable, of all my just debts, expenses of my last illness and burial, and of any and all estate and inheritance taxes which may be levied on my estate or which may be imposed on any devise or bequest made by me herein, together with the necessary expense of administering my estate. ’ ’ (Emphasis ours.)

In'item XI, he creates the residuary estate, as follows: “All the rest, residue and remainder of my property, real and personal, * * * in trust * * V’

Two sections in the Probate Code bear notice. Section 10504-76, General Code, provides:

“If, by making a specific devise or bequest, the testator has exempted a devisee or legatee from liability to contribute to the payment of debts, or if the Will makes provision for the payment of debts, different than those prescribed in the next preceding section, the estate must be applied in conformity with the will.”

The next preceding section (Section 10504-75, General Code) provides that when real or personal property devised or bequeathed is taken from the devisee or legatee for the payment of a debt of the testator, the other devisees and legatees must contribute their respective proportions of the loss to the person from whom it was taken so as to make the loss fall equally on all devisees and legatees, according to the value of the property received by each of them. The effect of the contention of the appellant herein is to require an order apportioning the expense among the several beneficiaries as required under Section 10504-75, General Code, when it is necessary to effect a contribution among the several beneficiaries. To do so would be to ignore the provisions of Section 10504-76, General Code. Under the latter section a specific devisee or legatee is exempt from the liability to contribute to the payment of debts when there is a residuary estate out of which the debts may be paid.

In the case at bar the intention of the testator to exempt the specific legatees and devisees from the liability for payment of his debts and expense of-¡administration is clearly shown in item I of the will, wherein he provides that all his just debts and. .the necessary expense of administering his estate ■ should be paid bv the executor out of the estate. It has been held that the word “debts” as used in a will includes costs of administration. Bane v. Wick, 14 Ohio St., 505, 514; Harbeson, Admx., v. Mellinger, 2 Ohio App., 75, 78.

We-, have examined the exhaustive and well-consideréd¡ ¡opinion of Probate Judge Love and are in accord with his reasoning and conclusions. In our opinion- the! - trial court was correct in holding that it was the intention of the testator that all expenses incident to the administration of the estate, including expenses arising'by* ¡reason of the will contest suit, should be paid out of the general assets of the estate and that the specific legatees and devisees should not bear any jjortion thereof.

The judgment of the trial court was based solely on the intention of the testator. We could very properly rest our affirmance on this theory of the case. However, since counsel for appellant contends that the will is not subject to the construction given and that the residuary legatee, .was entitled to an order equitably apportioning: the expense incident to the defense of the will ¡contest , suit among all the beneficiaries, we are disposed to meet this question squarely.

The appellant concedes that the ordinary expenses of administration of the estate are properly chargeable' against the general assets of the estate, the result being that the residuary legatee would bear the burden of such expenses; but appellant contends that compensation paid to counsel representing the executor in the successful- defense of a will contest suit, and other expenses incident to the defense of the action, are in the nature of extraordinary expenses and that a distinction should be drawn between ordinary and extraordinary expenses in determining how such compensation and expenses should be charged.

■In our opinion no such distinction can be made relative;'to the compensation allowed counsel for legal services. Section 10509-193, General Code, in part, provides: “When an attorney has been employed in the administration of the estate, reasonable attorney fees paid by the executor or administrator shall be allowed as a part of the expenses of administration.”

This is the only section in the Probate Code which controls the payment of compensation to an attorney who represents the fiduciary in the administration of the estate. No distinction is made in this section between ordinary and extraordinary services rendered by an attorney. This section was amended effective August 22, 1941, and prior to the amendment provided that when the attorney had been employed in the administration of the estate, reasonable attorney fees paid by the executor or administrator “shall be included in such further allowance” to the executor or administrator. One purpose of the amendment was to eliminate the provision that the attorney fees should be allowed as a “further allowance” to the executor or administrator and, further, to provide that such fees, when allowed, should become “a part of the expenses of administration.” In the absence of a contrary intention expressed in the will, the general rule is that all expenses of administration are chargeable against the estate and that when the estate is being •administered under a will wherein specific or general legacies or specific devises are given and a residuary ■estate is created, the expense of administration falls on the residuary estate, exempting the specific legacies ■or devises. Y. M. C. A. v. Davis, 106 Ohio St., 366, 140 N. E., 114; 69 Corpus Juris, 1227, Section 2571; 4 Page on Wills, Lifetime Edition, 324, Section 1497. But the appellant here contends that an exception to the general rule should be made whereby compensation paid to counsel for the executor in successfully defending the will contest suit should be equitably apportioned among the several beneficiaries. The case of In re Account of Ullman, Exr. (1909), 12 C. C. (N. S.), 340, 21 C. D., 340, is cited in support of this contention. In that'case the court, on-page 344, held:

“In this particular case, however, the allowance to the executor generally out of the estate for money paid by him as attorney fees in the contest of this will results in placing the entire burden upon the residuary legatees * * *. Yet, notwithstanding that we do not think it equitable that the entire costs of this contest-should be paid by them, but all the interested parties should have been compelled to contribute thereto in equitable proportions, and the executor ought to have intervened with a motion to that effect in the probate court, before distribution. True, the expense of attorneys in the settlement of an estate must be paid out of the residuary fund. It is only to the extraordinary expenses in the contest of a will that the devisees and legatees under the will should have been compelled to contribute ***.”.

On page 346 the court holds:

“We are not unmindful of the fact'that whatever is, alloioed comes out of the residuary fundi and therefore we are not disposed, to allow the full amount of these counsel fees, although,, as we have heretofore stated-, we are of the opinion that they were just and reasonable, and we think the executor ought to have credit for a larger sum than that given him by the common pleas court.” (Emphasis ours.)

It is apparent that the statement of the court that counsel fees should be equitably apportioned among the beneficiaries was purely obiter dictum. This case was decided before the amendment of Section 10509-193, General Code. Prior-to the enactment of the Probate Code (effective January 1, 1932) there was no statutory provision relative to the payment of attorney fees for legal services -rendered in the administration of an estate.

We are not disposed to follow the obiter dictum made in the üllman case. While we find no reported case in Ohio deciding this precise question, in other jurisdictions where the question :has been squarely raised courts have charged the expenses incident to the successful defense of a. will contest suit against the estate . and have refused to apportion such expenses among all the beneficiaries. Powell v. Labry, 210 Ala., 248; Ex Parte Landrum, 69 S. C., 136; Baugh’s Estate, 12 Pa. Dist., 303; In re Chapin’s Estate (Wash.), 144 P. (2d), 738.

■ In our opinion where the testator gives specific legacies and a specific devise and creates a residuary estate he does so with the knowledge’ that all expenses of administration and litigation which may arise in the settlement of his estate will be chargeable against the general assets of the estate as part of the administration costs. The value of the estate passing under the residuary clause may be enhanced or reduced in value, depending upon'the expenses of administration. In the settlement of many . estates, particularly large estates, questions arise ¡involving, litigation in : which only certain heirs or beneficiaries under the will are benefited. Nevertheless, the rule that all expenses of administration are charegable against the general assets of the estate is universally accepted. To subject the different beneficiaries to the payment of the costs of administration on the basis of benefits received would be a departure from the established law on this subject. In Baugh’s Estate and In re Chapin’s Estate, supra, the court rejected the theory of apportioning the expenses among the beneficiaries on the basis of benefits received. This theory was rejected also in McIntire v. McIntire, 192 U. S., 116, 48 L. Ed., 369, Justice Holmes writing the opinion.

Counsel for the appellant contends that the Probate Court should have exercised its equity powers in ap.portioning counsel fees among the beneficiaries under the will, and cites the last paragraph of Section 10501-53, General Code, which provides:

“The Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute.”

The Probate Court does not have general equity powers conferred upon it under that section. That section gives the Probate Court, in matters within its jurisdiction, the authority to exercise equity powers in disposing of matters where there is no legal remedy or where the legal remedy is inadequate. Equity follows the law, and cannot be invoked to destroy or supplant a legal right. In our opinion the beneficiaries under the will of Arthur C. Dickey to whom were given a specific or general legacy, or a specific devise of real estate, had a legal right to receive such property exempt from the burden of the cost of administration,, since there was a residuary estate out of which the costs of administration could be paid.

Judgment affirmed.

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


author: Matthews, J.

text:
    Boyle, Treas., Appellant, v. The Public Adjustment & Construction Co. et al., Appellees.

      (No. 21725
    Decided April 19, 1950.)

      Mr. Frank T. Gulliian, prosecuting attorney, and Mr. John F. Smolka, for appellant.

      Mr. Wm. E. Rosenfeld and Mr. Alfred Palay, for ■appellees.
   Matthews, J.

The question presented on this appeal arose in an action to foreclose a tax lien. The tax had been levied against a large tract of land. After the tax had been levied and had become delinquent, but before this foreclosure action was filed, the •owner transferred two portions of the tract so that, •at the time of the foreclosure, portions of the entire tract were owned by three different persons, ail of whom were made parties to the action.

After a decree in foreclosure of the lien on the entire tract had been entered, an order of sale issued and returned showing no sale for want of a bidder, the •original owner of the entire tract, who still owned a portion, and the transferees of portions each filed applications in which they represented that they owned portions of the tract, that, in accordance with law, each had entered into an agreement or undertaking with the county treasurer whereby the taxes on their respective portions were paid under the terms of the Whittemore Act, and that all the costs of the pending action had been paid. . They also represented that no delinquency existed against the respective tracts and that the plaintiff had erroneously included those portions in the order of sale. They asked that the order of sale be vacated, that the court find no delinquency existed as to those portions, and that the taxes were being paid in accordance-with-the terms of the Whittemore Act. By order entered on the journal on May 4, 1946, those applications were overruled. The defendants appealed from that. order and it was affirmed by the Court of Appeals and by the Supreme Court. Boyle, Treas., v. Public Adjustment & Construction Co., 148 Ohio St., 559, 76 N. E. (2d), 377.

Before placing on the. journal,..the entry of May 4, 1946, Judge Orr, to whom the applications had been submitted, handed down a memorandum opinion in which he discussed the. applicability of Section 2672-15, General Code, and reached the conclusion that it did not apply and, as already noted, denied the applications. He closed this memorandum opinion -with this statement: ‘‘ Since the.county .treasurer has accepted funds of the applicants under the mistaken belief that he could do so, we believe.it. is within the power of this court to order the return, to the applicants of such funds and an order to. this. effect may be accordingly prepared.” i- . .

No such provision was incorporated in the journal entry denying the application, and no separate order directing repayment was made,at the .time. However, on, November 15, 1949, -after the .Supreme Court had affirmed the order denying the. applications, the applicants presented to Judge Kramer, the presiding judge of the court at the time,: a journal entry which he signed and ordered entered over the objection of the plaintiff. This journal entry is as follows:

. “This matter came on to be heard this 15th day of November, 1949, upon the application of the defendants, The Public Adjustment & Construction Company, and Alex N. Sill.

“The court being apprised that the Hon. Stanley L. Orr, the trial judge who heard the application of ■these defendants herein, has since died and that prior to his death he had prepared a written memorandum ■of his decision herein; that in said written memorandum said trial judge found that the county treasurer, the plaintiff herein, had accepted funds of these applicants under the mistaken belief that he could do so and that the said funds should be returned to these •applicants, and this court being further apprised that said trial judge stated in said decision thaj; an order may be prepared accordingly and that no such order was submitted to said trial judge prior to his decease, this court finds that an order should be entered upon the journal of this court in accordance with such written memorandum of said trial judge.

“It is therefore ordered that Leslie E. Monroe, as successor county treasurer, refund to the defendant, The Public Adjustment &■ Construction Company, the sum of four hundred fifty-nine dollars and fifty-eight •cents ($459.58) received by the county treasurer of Cuyahoga county under and pursuant to undertaking No. 91187 and the sum of four hundred eleven dollars -and sixty-three cents ($411.63) received under undertaking No. 91189, and to the defendant, Alex M. Sill, 'the sum of one hundred ten dollars and fifty-six cents ($110.56) received under undertaking No. 91188.”

It is from that order that this appeal was taken.

Counsel have discussed and cited cases illustrating the distinction between a pronouncement, oral or written, by a judge other than upon the journal of the court, and the same pronouncement when entered upon the journal. We had occasion to consider this difference in State, ex rel. Ruth, v. Hoffman, Judge, 82 Ohio App., 266, 80 N. E. (2d), 235, 4 A. L. R. (2d), 579. It seems to us that counsel are in agreement as-to the legal effect of the distinction.

That a pronouncement by a judge of a court is not effective as an action by the court until journalized is beyond dispute. Until journalized it remains the action of the judge and whatever legal effect is accorded results from the fact that it was done by the judge in the discharge of his judicial duties.

When the pronouncement declares an intent to enter an order upon the court journal, it becomes the duty of the judge to make his pronouncement effective by journalization, unless in the exercise of a sound judicial discretion such intent is altered by him. While his discretion as to his decision cannot be controlled, so long as that decision remains unaltered, he can be required by the writ of mandamus to perform the ministerial duty of doing whatever the law requires of him to have such decision, spread upon the journal of the court.

It is not necessary in this case to consider whether, or under what circumstances, a successor judge can be compelled to direct the journalization of a decision announced by a deceased predecessor. That was the precise question presented in State, ex rel. Ruth, v. Hoffman, supra. In the case at bar, the judge upon whom devolved the duty of deciding whether such decision should be spread upon the journal has decided that issue in the affirmative.

We think it clear that after the journalization of a decision has been made by a successor judge, its legal effect can be no greater than it would have been had it been journalized by the pronouncing judge-' in'- his lifetime. This is clearly so in this instance, because Judge Kramer expressly limited his act to the journalization of the decision already made by Judge Orr. Whatever judicial function which was involved had been performed by Judge Orr, and it was his decision, not Judge Kramer’s, that was journalized. There still remains the right to question the validity of such order and the fact that the successor judge made the-journal speak as of a prior date does not affect the time within which the decision may be reviewed. We come then to a consideration of the validity of the order.

The question is whether Judge Orr should have made the order.

It is now claimed that the money was paid by the defendants to the plaintiff under such circumstances as to require its restitution to prevent inequity and unjust enrichment. It may be that there has been a complete failure of consideration, but it was not paid to any officer of the court, or under any order of court. Were it in the hands of an officer of the court, 'in custodia legis, or had it been paid in response ‘to an: order of the court, the control of the court over its officers and over its orders would be sufficient to eliable it to direct the final disposition of the fund in accordance with the equities of the case.

But this money is not in the hands of an officer of the court. The court had nothing to do with the payment to the county treasurer. The situation/results from the voluntary act of the defendants..-. After the-payment, the fact was brought to the attention-'of the-court, not for the purpose of obtaining an order of restitution, but -for the purpose of obtaining an approval of the payment and an order of dismissal of' the foreclosure action, to which defendants claimed they were entitled because of the payment.

.No pleading Of any sort has been filed at any time alleging a cause of action based on the payment and praying for judgment on such cause of action. There was and is nothing on file to which the treasurer could demur, or, plead. No such issue has ever been made. The. question is, whether under such circumstances the court had jurisdiction to make the order appealed from, which in fact and law purports to be a judgment for money agaipst the treasurer. We are of the opinion that the court lacked such jurisdiction. It should-be noted that it appears from the language of Judge Orr that he had some doubt on the subject and that may account for its exclusion from the journal entry ;that was made at the time.

In I Freeman on Judgments (5 Ed.), 677 and 678, it is stated:

. ‘-But it is not enough that the court’s power may be found broad enough in the abstract to cover the class.-of litigation to which the case in question belongs.-! Mere possession of power to act in respect to a ¡specific subject -matter is of no consequence unless that power is properly invoked. For jurisdiction of the--.subject. matter of a particular case is something more .than -the constitutional or statutory power to entertain; eases, of the general class to which the one in; hand belongs;.it is that power called into activity, not by the court of its own motion for that would ordinarily. be insufficient, but by some act of the suitor concerned-and in some mode recognized by law.

■ “A.-court has no power to render judgment in favor of one.a.s plaintiff if he has never commenced any action or. proceeding calling for its action, nor has it, as a general rule, power to give judgment respecting a matter not submitted to it for decision, though such judgment--is pronounced in an action involving other ■matters which have been submitted to it for decision and over which it has jurisdiction. There must- be some appropriate application invoking the judicial power of the court in respect to the matter sought to be litigated; such as the filing of a petition, complaint or other proper pleading, for it is in this manner that the court’s power over the subject matter is invoked.”

And at pages 737, 738, and 739 it is stated:

“In some instances courts have undertaken to decide questions not involved in the suit or action before them and to grant relief therein; and their judgments have been assailed for that reason, and to the extent to which they departed from the matters embraced within the' record they have been denied effect. A court is limited in its determination to the matters properly before it. Ordinarily it has no authority to-pass upon questions not involved and in respect to which its jurisdiction has not been invoked. For courts cannot ex mero motu set themselves in motion, nor have they power to decide questions except such as are presented by the parties in their pleadings. What is decided within the issues is coram judice; anything beyond is void, unless the parties voluntarily try an issue outside the pleadings. A judgment outside the issues is not a mere irregularity, but is extrajudicial and invalid.”

See, also, 41 American Jurisprudence, 289, and 23 Ohio Jurisprudence, 559.

It is said in the fourth paragraph of the'syllabus in Spoors v. Coen, 44 Ohio St., 497, 9 N. E., 132, that “The judgment of a court upon a subject of litigation within its jurisdiction, but not brought before-it by any statement or claim of the parties, is null and void, and may be collaterally impeached. ’ ’ ■ This pronouncement of the Supreme Court has been cited with approval by it in Grant v. Village of Hyde Park, 67 Ohio St., 166, at 175, 65 N. E., 891; Jewett v. Feldheiser, 68 Ohio St., 523, at 530, 67 N. E., 1072; Russell, Admr., v. Fourth Natl. Bank, 102 Ohio St., 248, at 261, 131 N. E., 726, and perhaps elsewhere, and has been consistently followed by the lower courts.

At the time Judge Orr handed down his opinion and direction, the jurisdiction of the court to order restitution had not been invoked in any manner. His action was coram non judice because of that fact. Later, when the order appealed from was entered, the jurisdiction of the court was invoked, not to secure an adjudication of the rights of the parties at that time, but solely to secure a journalization of an adjudication already made by Judge Orr. Judge Kramer assumed to -do nothing more. There was no hearing on the merits at that time. No matter how it is considered, the action of the court , was beyond its jurisdiction upon the state o.f the record. To conclude, the •county .treasurer under such circumstances would be lacking in due process of law.

■ For these reasons, we are of the opinion that the •court erred in entering the judgment or order appealed from. .

The judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

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

Ross, P. J., Hildebrant and Matthews, JJ., of the First Appellate District, sitting by designation in the Eighth Appellate District.


text:
    United Mercantile Agencies, Inc., Assignee, Appellant, v. Williams, Appellee.
    (No. 4369
    Decided February 6, 1950.)

      Mr. O. C. Ingalls and Mr. Gene A. Jones, for appellant.

      Mr. C. II. Benbow and Mr. Henry A. Williams, for appellee.
   Wiseman, J.

.This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County, dismissing plaintiff’s motion for proceedings in aid of execution and sustaining the motion of the defendant to dismiss such proceedings.

The motion of defendant to dismiss was based on the fact that the judgment sought to be enforced was taken on a promissory note and was barred by the defendant’s discharge in bankruptcy. The plaintiff sought to prove aliunde that the note on which the judgment was taken was given for money obtained by the defendant from the plaintiff’s assignor by false and fraudulent representation. The trial court held that such evidence was inadmissible. The only error assigned is directed to that ruling.

The question presented is whether, in proceedings to enforce a judgment taken on a promissory note, the record being silent as to the facts and circumstances under which the indebtedness was created, and a defense of discharge in bankruptcy is interposed in the proceedings to enforce the judgment, evidence outside the record is admissible to show that the judgment, debtor’s obligation is one that is excepted from the operation of a discharge by the provisions of Section 17, Clause 4, of the Bankruptcy Act of 1938.

The plaintiff contends that such evidence is admissible and cites in support of this proposition Howland v. Carson, 28 Ohio St., 625, which holds that “the court will look back of the judgment, to the root and origin of the cause of action on which it is founded, in order to determine whether the discharge is a bar to the collection of such judgment, ’ ’ and also Fidelity & Casualty Co. of New York v. Golombosky, 133 Conn., 317, 50 A. (2d), 817.

The defendant relies on Morrow v. Pfleiderer, 4 Ohio App., 283, which holds that where a judgment is taken on a note the judgment creditor cannot “explain the record by proof aliunde that the note was given for property obtained by the judgment debtor from such creditor by false and fraudulent representations,” for the purpose of determining whether the claim is within one of the exceptions to the bar of a discharge in bankruptcy, and Bannon, Trustee, v. Knauss, 57 Ohio App., 288, 13 N. E. (2d), 733, which holds that such evidence is admissible “only where the record of the case in which the judgment was obtained is ambiguous or does not disclose the nature of the cause of action on which the judgment was founded.”

The defendant cites Goodrich v. Eck, 25 Ohio Law Abs., 548, which holds that in a proceeding in aid of execution the court “has no right to go into the origi-’ nal case further than to examine the pleadings, files and record of the evidence ’ ’ therein. See Collier on Bankruptcy (2 Ed.), Section 415, and 7 Remington on Bankruptcy, 783.

The well reasoned and exhaustive opinion of Judge Randall is attached to the transcript. The trial judge very ably discussed all the legal questions raised and differentiated the various cases cited. In Rowland v. Carson, supra, cited by the plaintiff, the root and origin of the judgment was disclosed by the record and it was unnecessary for the court in that case to determine the nature of the transaction on which the judgment was taken.

In Bannon, Trustee, v. Knauss, supra, the court, in commenting on Howland v. Carson, supra, stated:

“The opinion in the case of Howland v. Carson, 28 Ohio St., 625, is not in our judgment authority for the proposition that evidence outside the record of the case in which the judgment sought to be enforced or avoided was obtained can be introduced to show the nature of the cause of action on which such judgment is based where the record of the case discloses that fact. ’ ’

Again, on page 291, the court stated:

“We are therefore of the opinion that this case is authority only for the proposition that under the facts disclosed by the answer the court would look back of the record of the judgment to the record of the case to determine the nature of the cause of action on which the judgment was based.”

In 8 Corpus Juris Secundum, 1591, the rule is stated as follows:

“Where the claim or demand against which a discharge in bankruptcy is asserted is in the form of a judgment and the issue involved is whether such judgment comes within a class excepted from the operation of the discharge, the entire record of the action in which such judgment was recovered is admissible and may be considered in the determination of the question, especially if the nature of the cause in which the judgment was obtained is not apparent from the judgment itself. Beyond such record the court may not go, evidence outside the record not being admissible, certainly not to contradict the record. This rule confining the evidence to the record is applicable where fraud in the incurring of the indebtedness is asserted to save the judgment from the discharge. ’ ’

This court very recently had before it a similar question in Pass v. Webster, 85 Ohio App., 403, 83 N. E. (2d), 116, in which it was held that in a proceeding to revive a judgment the court cannot go outside the pleadings to determine whether the claim fell in a class of one of the exceptions to the bar of the discharge in bankruptcy.

In the instant case, the judgment, being a provable debt, was barred by the defendant’s discharge in bankruptcy. The trial court properly ruled that the evidence sought to be admitted was inadmissible and no error was committed in dismissing the proceedings.

Judgment affirmed,.

Miller, P. J., and Horn beck, . J., concur.


author: Ross, P. J. Hildebrant, J.,

text:
    Schroff, Appellee, v. The Foley Construction Co., Appellant.
    (No. 7256
    Decided May 15, 1950.)

      Mr. Gordon Rich and Messrs. Bates, STcirvm & Varnau, for appellee.

      Mr. Robert G. McIntosh, for appellant.
   Ross, P. J.

In this appeal on question of law from the Court of Common Pleas of Hamilton County, the defendant seeks to set aside a judgment in favor of the plaintiff rendered on the verdict of a jury in an action in which the plaintiff seeks to recover compensation for personal injuries and damages to his automobile caused by a collision with the “boom” of a machine used in the excavation of a public highway.

The charges contained in the second amended petition are: That the defendant, on the 7th of April, 1948, was engaged in putting a sewer in Losantiville road in Hamilton county, Ohio; that defendant knew such road was being used for public travel during such installation; that defendant had not blocked the entrances to such road; that defendant blocked the south half of such road with a “power crane” at a point east of the overhead crossing of the Pennsylvania railroad; that a “boom” extended from the cab of such crane across the north half of the highway and was about five feet above the ground; and “that it was dark and there was a heavy fog, so that the lights of the automobile of the plaintiff would fail to disclose this projection onto the highway located up above the range of the headlights.” It is alleged further the defendant neglected to have watchmen, maintain a suitable barricade, danger signs, and red lights warning plaintiff of such obstruction of the highway by such boom.

It is stated further by plaintiff in his second amended petition that:

“At or about 2:45 a. m. on the 7th day of April, 1948, with conditions existing as previously set forth herein, he was driving his 1940 Ford sedan in an easterly direction along said Losantiville road; that as he approached the Pennsylvania railroad underpass he descended the grade approaching thereto, passed under said underpass and started up the grade on the east side of said overpass and saw the cah of this large crane and turned his car to the left, onto the northerly half of the road or what would be known as the.left hand side of the road to avoid a collision with said cab and bucket of said power crane and that as he was passing said power crane the boom heretofore described placed above the road and out of the range of his headlights struck the top and right side of this plaintiff’s Ford automobile with such force as to totally demolish the same and injure- this plaintiff as herein set forth.”

In a third cause of action plaintiff alleges the existence of a contract between the defendant and the county of Hamilton, whereby defendant was required to maintain suitable barricades, lights and a watchman for the protection of the public during. and' in connection with such installation of .such sewer-and that ‘ ‘ said defendant failed-to provide, erect and- maintain suitable barricades,, danger .signs and red lights and failed to provide adequate protection to insure -the safety to the public at all times but on the contrary in violation of this duty imposed by - contract for the benefit of this plaintiff and others using -the highways, intentionally obstructed -the highway with the boom hereinbefore described, causing the injury to the plaintiff set forth in the first cause of action- and the damage to his automobile set forth in the second cause of action.”

The answer of the defendant -is, in effect a general denial.

■ -Motions for an instructed verdict and for judgment non obstante veredicto and form-new trial were filed by defendant and overruled.

From the evidence introduced by plaintiff, it appears that defendant was, on April 7, 1948, engaged in the installation of a sewer just south of the center line of Losantiville road in the county of Hamilton. In connection with such work, a crane having a 45-foot boom extending from the cab of the crane was employed in the work. On the night in question, the cab was located just south of the center line of the road and the boom extended west from the cab. The western extremity of the boom extended some two or three feet across the center line into the north half of the highway, and such western end of the boom was about four or five feet above the level of the highway. The ditch in which the sewer was installed had been filled in for some considerable distance to the west of a point where plaintiff entered Losantiville road from the north out of Brook Crest avenue, at about 2:00 a. m., on the night of April 7, 1948. At the point where the cab and boom were located the ditch was still open.

The president of defendant company, being called as on cross-examination, stated that the boom was so located as a barricade against possible entrance into the ditch by vehicles using the north portion of the highway.

From the plaintiff’s own testimony, the following statements indicate what happened. He stated:

“A. I was coming down Reading road, coming south on Reading road and I turned over Section, as I usually come over Section, or I mean over Losantiville, but on account of that fog, the night too bad, I decided I would turn off and come over the other road, because Section road is a narrow road. I came over Brook Crest. I turned right on Section to Brook Crest and from Brook Crest to Losantiville. And I proceeded down there very cautiously. It was a foggy night and I had my windshield wiper going, and I proeeeded down on the right-hand side, which is the proper way to drive, and as I got down just about that underpass my lights were going down to the road street. There is a jog in the road along this underpass, and I saw this equipment in the distance, and when I discovered there was something going on, I stopped my car and tried to figure out what it was. I saw some red lights along the side. I thought 1 would check to see. I didn’t know whether the road was blocked or whether you could get through or not, although there were no signs this way over this entire distance of any kind. So I turned, and the next thing I heard some scraping in the top, and I came to a sudden stop. I was not going very fast, and-I got out of the car and here Avas this piece of equipment, boom, which was on the right side of my car and into the top of my windshield. So I got out of the car. Of course, I didn’t know what Aims blocking the road, and the weather being bad.

a* # #

“A. I Avas driving very cautiously, slow, I would say not over twenty miles an hour, and when I got doAvn to this, approached the underpass, then I stopped the car when I saw some lights, and those lights, they were upon this cab, which was quite a distance, and then I saw a couple of lights along the middle of the road. I immediately proceeded cautiously on the left hand side, very slowly. I didn’t get very far when this boom, sticking out over the edge of the road, come in contact with the windshield and top of my car as the picture shoAvs.

“Q. How high was the bottom of this boom from the road? A. I would say about the height of a car, about five feet, four to five feet.

“Q. How far, if you know, did it extend beyond the middle of the road, about? A. About, I would say, two feet, two to two and a half feet from the center of the road to the north, to the north side of the road.

“Q. State whether or not you ever saw this boom before you hit? A. No; I didn’t know it was there. I was watching the road due to the narrowness of it, and passing, trying to get around, my lights were down to the road.

“Q. What was the condition of the night? Was it a nice, clear night, or what kind of a night was it? A. It was foggy and misty, in fact, it was necessary to drive very slow, because you could not see, especially in low spots, where this particular place is. In the low places the fog hangs, it was necessary to have your windshield wiper going to keep it as clear as possible.

í i * *

“A. There was lights all along the ditch, the open ditch, where my car was standing.

“Q. You saw these lanterns all along the ditch? A. There were two or three of them, I don’t know how many, along this open ditch.

“Q. As you were coming eastward on Losantiville road you saw in front of you a light at the open ditch, is that right? A. No.-

“Q. None at all? A. I didn’t see any lights there at all.

“Q. You did not see these concrete pipe, tile pipe, two by twelve — two by sis across there? A. No.

“Q. You saw no light that night there? A. No, sir.

“Q. Where did you see these lights? A. I saw some lanterns hanging on the cab.

“Q. What cab? A. On the cab were some lanterns.

“Q. Then as you were driving along and looking at the road you saw lights on the cab some distance in front of you, is that right? A. Forty-five feet, I would say.

“Q. At least 45 feet in front of your car? A. Yes.

“Q. You did not see the open ditch in front of. your car? A. No, sir.

“Q. You never saw the open ditch? A. Not until I got out of the car. After I got out of the car 1 saw the open ditch right alongside of the machine.

“Q. At a distance of 75 feet away, you mean you saw these lights on the cab?

“Mr. Skirvin: He didn’t say 75 feet. He said 45.

“Q. I am sorry. I apologize. It was 45. A. Yes.

“Q. You saw these lights on this cab 45 feet away? A. That is right, after I got out of the car.

“Q. How? A. After I got out of the car I saw these lights up there.

“Q. You did not see them before the accident occurred? A. No; not until after I got out.

“Q. Then as you were driving along Losantiville road, going eastwardly, you saw nothing there, but you stopped your car and got out? A. That is right. I stopped at the underpass that turned into this road. I got to that underpass and stopped because I knew work of some kind was going on, but I didn’t know what. That was the first time I had come over that road since—

“Q. (Interrupting) You saw something that made you stop. What was it? A. It was an object there, but I didn’t know what it was. There was an object in the road, equipment of some kind.

“Q. Did you get out of your car? A. No, sir.

“Q. At that point? A. No, sir.

“Q. You stopped. A. I stopped, and then I turned to the left.

“Q. You had no knowledge what that was on the road, except there was something on the road? A. That is right.

“Q. After stopping you went to your left. What it was, you don’t know? A. That is right.

“Q. After you came in contact with this boom, you saw these lights up on the cab. A. That is right.

H* * *

“Q. Your lights were in good condition this night. A. Yes, sir.

“Q. They were able to reveal substantial objects in front of you? A. That is right.

“Q. They were able to reveal the condition of the road in front of your car, were they not? A. The fog handicapped any condition of the road.

“ Q. On this night with the lights you had on your car that night, how far in front of it could you see? A. I could not see any great distance.

“Q. On this night on Losantiville avenue, in what distance could you stop your car? A. If the brakes are in good shape, and my brakes had been relined, I could stop in a short distance.

“Q. How many feet? A. I could stop in 25 feet.

“Q. After you had stopped in the road, you don’t know what it was, and from there then turned to the left to go on the left side of the road, you were in low gear? A. That is right.

“Q. How fast were you going at that time? A. About five miles an hour.

“Q. In what distance could you stop a car going five miles an hour? A. I could stop pretty quick, inside of ten or fifteen feet I imagine.

“Q. When you turned to your left- — withdraw that. When you stopped your car, as you have testified, for whatever was there, you were certain that the road was impassable on the right side, is that right? A. That is right.

“Q. You didn’t know whether it was impassable on the left now, did you? A. It was open on the left hand side, or appeared to be open. It was very confusing. The road is narrow. It was only about the width of a oar, and it was confusing, because of these lanterns along there, you had to pull off the road, and I was cautious because I was afraid I would have to pull off the road on the north side of the road.

“Q. There were lanterns along there at that time? A. There were lanterns along the ditch; yes.

“Q. You saw them when you stopped? A..When I stopped.

“Q. I think you told me a minute ago you did not see any lanterns until after the accident occurred. I am not trying to confuse you. I am just trying to get your story. I don’t mean to be pestiferous at all, but you said to us, you said a little while ago there were no lanterns or anything you could see when you stopped? A. Leading up to this, there were no lanterns or signs leading to this equipment. There were no signs, barricades or warning signs. That road was not under construction, on the right hand side.

“Q. There were no lights that you saw until after the accident occurred? A. That is right.

“Q. Then, when you stopped, and you pulled your ear to the left side of the road you were not able to see on the left side of the road over farther — what was it you called that? A. Well, it was confusing. You could see, but it was very hazy. I didn’t get very far after that. When this thing hit the top of my car, I tried to back the car away from it.

“Q. What I am getting at is, when you stopped your car, as you say, before you made this left turn to go to the left side of the road, you knew that the right side of the road was blocked? A. That is right.

“Q. You did not know whether the left side of the road was blocked? A. That is right.

“Q. You went to the left side? A. I went a distance of a few feet. ’ ’

It must be evident from the plaintiff’s own testimony that he was guilty of negligence, proximately causing his injuries and damage to his automobile, and that he cannot, therefore, recover. Winkler v. City of Columbus, 149 Ohio St., 39, 77 N. E. (2d), 608. He drove his automobile into a visible static object in the path of the area covered by such automobile. He saw the boom when he got out of his car. Therefore, it was a visible object. It struck his car. Therefore, it was evidently in the path of the vehicle. If he had driven into the boom in broad daylight, it seems incredible-that any contention could be made that he could recover. Therefore, it was the darkness, the fog, his confusion, and the speed of his car which prevented timely measures to avoid his injuries. These elements do not excuse him.

The Ohio statute, Section 6307-21, General Code, is conclusive upon this matter. It forbids any speed which will not permit the driver to stop his car within the assured clear distance ahead. That distance, by reason of darkness, fog, or other natural conditions may be nothing, in which case the speed must be nothing. If the driver cannot see that which is in his path, there is no assured clear distance ahead. There is essentially no difference in principle-between the diminution of such assured clear distance by a bend in the road, the brow of a hill, blinding lights, darkness or a fog. Either the driver can see where he is going or he cannot. Much the same principle applies to persons who proceed in darkened areas and suffer injury by proceeding forward when they cannot see what lies in their path. In other words, they are the authors of their own injuries. Such rule is found in the so-called “step in the darkness cases.” Inability to see what lies ahead, whether it be in the case of an individual or the driver of a motor vehicle, requires that the movement forward shall be appropriately decreased if necessary to a stop.

The rule that the plaintiff has a right to rely upon obedience of law by others may bear upon the question of negligence, but it has little, if any, application to contributory negligence.

It is unnecessary here to consider the question of whether under all the facts the defendant was negligent. This upon the evidence may have been a factual issue, which might sustain a reversal on the weight of the evidence. Upon the phase of plaintiff’s negligence, we are concerned with a question of law. His violation of the statute and his evident movement into a static discernible object requires a finding that he was guilty of negligence contributing to his injuries as a matter of law. Skinner v. Pennsylvania Rd. Co., 127 Ohio St., 69, 186 N. E., 722; Glasco v. Mendelman. 143 Ohio St., 649, 653, 56 N. E. (2d), 210.

In Gumley v. Cowman, 129 Ohio St., 36, 193 N. E., 627, it is stated in the second paragraph of the syllabus:

“The present legislative requirement establishes a subjective test whereby a driver is prohibited from ■operating any motor vehicle in and upon any public road or highway at a rate of speed greater than will permit him to bring it to a stop within the distance at which he can see a discernible object obstructing his path. ’ ’

In Kormos v. Cleveland Retail Credit Men’s Co., 131 Ohio St., 471, 3 N. E. (2d), 427, it is said in paragraph three of the syllabus:

“Any operator who has failed to comply with the •‘assured clear distance’ statute may excuse such failure and avoid the legal imputation of negligence per se by establishing that, without his fault, and because of circumstances over which he had no control, compliance with the law was rendered impossible.”

In the instant ease, according to plaintiff’s own testimony lie had ample warning that a dangerous condition existed in the highway. To leave to the jury the right to speculate upon whether the plaintiff exercised proper care in proceeding is to negative the evident intent of the Legislature to permit operation of a motor vehicle upon a highway only when the driver can see where he is going and what is in his path. If he cannot see, as the plaintiff states he could not, still proceeding constitutes a violation of the .statute.' No sudden emergency is here involved. There is no sudden or unexpected entrance of an object into the path in which plaintiff was proceeding. The plaintiff obviously knew he was in an area of danger, where his lights were of little value, and still he drove his automobile into a static object fully discernible, except for fog, darkness, and distance.

The Supreme Court later in Smiley v. Arrow Spring Bed Co., 138 Ohio St., 81, 33 N. E. (2d), 3, stated the modern rule herein applicable.

“Section 12603, General Code, is a safety measure which, to accomplish its purpose, must be applied according to its clear and unambiguous language.

“To comply with the assured-clear-distance-ahead provision of Section 12603, General Code, the driver of a motor vehicle must not operate it at a greater speed than will permit him to bring it to a stop within the distance between his motor vehicle and a discernible object obstructing his path or line of travel, unless such assured clear distance ahead is, without his fault, suddenly cut down or lessened by the entrance, within such clear distance ahead and into his path or line of travel, of some obstruction which renders him unable, in the exercise of ordinary care, to avoid colliding therewith. ’ ’

On pages 88 et seq. of the opinion, many cases similar to that here presented are cited showing the rule applicable. Claim is made because the west end of the boom was above the road level the principles herein stated do not apply. No reason is apparent for such claim. Obviously it was in the area occupied by the car as it proceeded and could have been seen as it was seen by plaintiff when he came out of his car.

The conclusion of the court in the premises requires that a final order in favor of the defendant be entered in this court. Such conclusion renders unnecessary any ruling on other assignments of error presented.

Judgment reversed and final judgment for appellant.

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

Hildebrant, J.,

dissenting. I respectfully dissent from the majority opinion of the court.

The circumstances of this case impress me as sufficient to legally excuse the plaintiff from the application of the “assured-clear-distance-ahead” rule.

Approaching the barricade across his right lane, he exercised due care, and stopped within the assured clear distance ahead. He is charged at this point with observing the entire discernible barricade presented to view, including the boom, crane, lights, etc., which was incident to a ditch construction job. He was, therefore, apprised that the danger barricaded against was an open ditch'below the surface of the street or the mound created by the back filling thereof.

The left or north half of the street was open, so that in conjunction with the barricade on the right, it amounted to an invitation tantamount to an audible direction for traffic to proceed at this point over the north half of the road.

Required to go to his left, plaintiff proceeded as any ordinarily prudent person would do, and turned sharply left in low gear to the left half of the highway. At this point, his assured clear distance was only the width of' the left half of the street. He was, therefore, required almost immediately to turn right and straighten his vehicle into the traveled portion of the left half of the street and under the fresh impetus of his low gear, and possibly, from the record, before he had traveled the distance within the range of his lights and before the lights had completed their swing to the right, so as to illuminate the whole width of the north half of the street, his vehicle collided with the diminished end or area of the boom projecting and suspended several feet in the air into the path to which plaintiff had been directed, and before he had time to discern the not easily discernible dark object which was the diminished area presented by the end of the boom.

It seems to me that plaintiff was not required to 'anticipate,- particularly after being apprised that the danger to be apprehended lay at the surface of and below the street, that a veritable trap in the form of the end of a crane boom would be suspended in midair at the right edge of the lane of traffic, which he was directed and required to use.

The situation here seems similar to that in Hangen, a Minor, v. Hadfield, 135 Ohio St., 281, 20 N. E. (2d), 715, wherein it is said in the third paragraph of the syllabus:

“These provisions of Section 12603, General Code,do hot require the driver of a motor vehicle approaching the crest of a hill on a public highway to anticipate that his proper path will be obstructed by another automobile- driven in the opposite direction in a manner contrary to law. ’ ’

The case of Farris v. City of Columbus, 85 Ohio App., 385, 85 N. E. (2d), 605, seems a somewhat similar and exceptional case, wherein it was held in the third, fourth and fifth paragraphs of the syllabus:

“3. The ‘assured clear distance ahead’ rule is not applicable unless it be shown that the obstruction or defect which caused the accident is discernible, and discernible in time to permit the driver to avoid it.

“4. The ‘assured clear distance ahead’ rule has no application where the obstacle in front is for the first time in the driver’s view, after the vehicle has passed the point where the rule would be effective, and the obstacle is then too close to be avoided.

“5. Where the plaintiff, riding on a motorcycle,-was following an automobile at a reasonable distance, and where both vehicles were traveling at a reasonable and lawful rate of speed, and where the automobile suddenly swerved from its path to avoid striking a hole in the street, the hole for the first time coming into the plaintiff’s view, after the plaintiff was too close to avoid striking the hole, the ‘assured clear distance ahead’ rule has no application.”

Summing up, it seems to me that in the act of swinging sharply left around the end of the barricade arid straightening his vehicle sharply right into the lane of travel, the end of the boom, negligently suspended over the traveled portion of that half of the road, was, in effect, projected into the distance ahead of plaintiff so suddenly that the element of lack of time involved provides a legal excuse from the strict application of the doctrine of assured clear distance ahead.

I, therefore, think that a jury question was presented.


text:
    Allen, Appellee, v. Streithorst, Appellant.
    (No. 7177
    Decided December 5, 1949.)

      Mr. Loyal S. Martin, for appellee.

      Mr. Stewart S. Cooper, for appellant.
   Matthews, J.

On February IS, 1947, the defendant, appellant, recovered a judgment for $6,657.30 against the plaintiff, appellee, in the Court of Common Pleas of Hamilton County, Ohio, upon a cognovit note, without service of summons or notice of any kind upon him. An attorney, solicited by defendant, assuming to act under the authority contained in the note, entered the plaintiff’s appearance and confessed judgment in his name.

On June 30, 1947, the plaintiff filed this action. He alleged that he had not been summoned or otherwise legally notified of the time and place of the taking of such judgment and that the cognovit note had been paid. He prayed that the judgment be vacated and set aside and for relief generally. The defendant answered admitting the procurement of the judgment in accordance with law and the rules of the court and then specially denied that any part of the debt had been paid prior to the entering of the judgment, but alleged that $1,521:72 had been collected on the judgment. Subject to these admissions, the defendant entered a general denial.

It is admitted that at the trial of this action, the defendant raised the question of the jurisdiction of the court and moved for a dismissal of the action on that ground, and that the court overruled the motion. The defendant’s contention was that the plaintiff’s action was based on Section 11631 et seq., General Code, authorizing relief from judgments after term, and that such relief could not be obtained in an independent action, but that the remedy was by motion or petition in the action in which the judgment had been rendered. He pointed to Section 11635, General Code, as so providing.

When the defendant raised the question of the jurisdiction of the court at the trial, the court, on plaintiff’s motion, directed a consolidation of this case with the ease in which the judgment had been rendered, but no order to that effect was journalized at the time. After this appeal was filed, the trial court entered upon the journal an order of consolidation as of the date of the trial and the plaintiff moved in this court for a diminution of the record by the inclusion of this nunc-prohmc entry. This court having reached the conclusion that the law did not authorize or permit such a consolidation, and that the inclusion of such an order would encumber the record and serve no useful purpose, overruled the motion.

The trial court found that there was substantial evidence to support the plaintiff’s allegations and thereupon suspended execution upon the judgment in the prior case pending the trial of the issues in that case on the merits. It is from that judgment that this appeal was taken.

The defendant assigns as error that the judgment is manifestly against the weight of the evidence, but as we view the matter, the test in a case of this kind under Section 11631 et seq., General Code, is whether there is substantial evidence of a legal defense to the action, thereby leaving the final determination of the issue to the trier of the facts at the new trial. We find substantial evidence to support the defense of payment and the finding of the court that no summons or notice had been served upon plaintiff in the prior-action, and therefore, find that this assignment of' error is not well founded.

We assume, as did defendant’s counsel, that this is-an action under favor of Section 11631 et seq., General Code, authorizing the Common Pleas Court to vacate or modify its judgment and grant a new trial after-term, under certain circumstances. By Section 11631, General Code, it is provided that the Common Pleas Court may grant a new trial after term when a judgment is taken upon a warrant of attorney “for more than was due the plaintiff, when the defendant was not summoned or otherwise legally notified of the time and place of taking such judgment.” And by Section 11635, General Code, the procedure for obtaining a new trial under such circumstances is set forth as follows:

“The proceedings to vacate the judgment or order on the grounds mentioned in divisions four, five, six, seven, eight, nine and ten, of the first section of this chapter [Section 11631, General Code] shall be by petition, verified by affidavit, setting forth the judgment or order, the grounds to vacate or modify it, and, if the party applying was defendant, the defense to the action. On such petition a summons shall issue and be served as in the commencement of an action.”

The ground alleged for setting aside the judgment is that set forth in division nine of Section 11631, General Code.

The defendant contends that this remedy must be pursued in the action in which the judgment, was rendered and that the Court of Common Pleas is without power or jurisdiction to entertain an independent action seeking such relief, and we assume he means that no act of waiver or consent of the parties could confer such jurisdiction — that such a judgment under all circumstances is utterly void. And he seems to be supported in this position by the opinion in the case of Shedenhelm v. Myers, 77 Ohio App., 385, 68 N. E. (2d), 331, on which he principally relies. That court found that the action before it was in the nature of an application for a new trial under favor of Section 11631 et seq., General Code, and therefore “wholly ineffective to invoke the jurisdiction of the court unless it is filed in the action in which the judgment was rendered,” and reversed the judgment “for want of jurisdiction of the trial court, of the proceeding, final judgment is rendered in favor of the defendant, dismissing plaintiff’s petition at her costs.” The court then stated that, as plaintiff had failed otherwise than on the merits, she would have the right to file a new petition within the time prescribed under such circumstances.

A reading of the opinion in that case causes us to concur with that court in the reversal of the judgment for the plaintiff, but we find ourselves in complete disagreement from it in the dismissal of the action because of lack of jurisdiction of the trial court to entertain it, and that disagreement is based on a difference in interpretation of the cases cited by that court to sup-' port its conclusion. All the cases cited, at least impliedly, support the opposite conclusion.

The case principally relied on in Shedenhelm v. Myers, supra, is Taylor, Assignee, v. Fitch, 12 Ohio St., 169. As a matter of fact, two eases were considered together in that opinion. The plaintiff in error had obtained a judgment by default at the February term 1858, against defendant in error. In June 1858, the defendant filed a petition to vacate the judgment, and for leave to defend under Section 536 of the Code of Civil Procedure (Section 11635, General Code), on the ground of alleged “unavoidable casualty or misfortune, preventing the party from defending” as provided in Section 534 of the Code (Section 11631, General Code). The plaintiff in error answered, making up an issue of fact, the case came on for trial, and as a result the court made an order vacating the judgment and awarding a new trial. The plaintiff in error (defendant in that case) gave notice of his intention to appeal the case to the District Court, amount of appeal bond fixed, bond given, and all steps were regularly taken to perfect an appeal as in ordinary appealable eases. Under the law at that time, the test of the appealability of a case effecting a trial de novo in the appellate court, as is done by an appeal on law and fact under our present procedure, was whether there was a civil action in which a jury was demandable in the trial court. As the law then stood, a jury could be demanded only in civil actions for the recovery of money only, or for the recovery of specific real or personal property. The defendant in that case moved the District Court to dismiss the appeal for lack of jurisdiction of the District Court to hear the appeal. The jurisdiction of the trial court was not involved or discussed. The District Court sustained the motion on the ground that “there is no provision of law under which the case can be appealed.” It was the dismissal of the appeal that was under review by the Supreme Court in the first case considered in Taylor, Assignee. v. Fitch, supra. That court reviewed the law, analyzed the applicable statutes and the constitutional provision limiting the jurisdiction of the District Court and concluded that the action provided for obtaining the setting aside of a judgment and for a new trial after term was a special proceeding and not a civil action, and affirmed the judgment of the District Court dismissing the appeal, which left in full force and effect the judgment of the Common Pleas Court setting aside the judgment and awarding a new trial. There was not even a suggestion by the Supreme Court that the judgment of the Common Pleas Court was void.

After the District Court had dismissed the appeal, the plaintiff in error filed a petition in error in the District Court to reverse the same judgment from which he had unsuccessfully attempted to appeal. The District Court reserved that case for decision by the Supreme Court, and that was the second case considered in Taylor, Assignee, v. Fitch, supra. The Supreme Court affirmed the judgment of the Common Pleas Court entered in the independent action setting aside the judgment by default and reinstating the original action on the trial docket. It is manifest from this that the Supreme Court not only did not hold that the Common Pleas Court had no jurisdiction, but held that the judgment rendered in the independent action in that case was free from error.

There are certain expressions in the opinion in that ■ease, which, wrested from their context and considered abstractly, can be said to be of doubtful meaning, but when considered in their setting and in the light of the conclusions of the court, the doubt disappears. There is nothing in the opinion inconsistent with the conclusion reached.

In Shedenhelm v. Myers, supra, it is said that Taylor, Assignee, v. Fitch, supra, has never been overruled. That is true, and as we construe Taylor, Assignee, v. Fitch, there is no reason for overruling it. In Shedenhelm v. Myers, it is said that Taylor, As signee, v. Fitch has been followed in numerous cases, and Coates v. Chillicothe Branch State Bank of Ohio, 23 Ohio St., 415, and Braden v. Hoffman, 46 Ohio St., 639, 22 N. E., 930, are cited as typical of the cases approving Taylor, Assignee, v. Fitch. In neither of the two cases cited as typical was any question raised of the jurisdiction of the trial court. In the first case, what plaintiff sought by independent action was not a new trial of the issues in a prior action in which a judgment had been rendered. As is pointed out at page 433 of 23 Ohio St., all the relief sought was to be awarded in that case, and it consisted not of granting a -new trial of a prior case, but an injunction against new parties, not parties to the prior action. The court accordingly held that' it was appealable to the District Court, or, as we would say under our present legislative nomenclature, it was appealable on questions of law and fact. In the second, typical case the question was also whether the appellate court had jurisdiction — not whether the trial court had jurisdiction. The jurisdiction of the appellate court was invoked by petition in error, which we would now call an appeal on. questions of law only. The appellate jurisdiction depended on whether an order, .vacating a judgment rendered at a prior term could be reviewed on error. The court held it ivas an order affecting a substantial right, made upon a summary application after judgment, and therefore, the Circuit Court had jurisdiction to review it on error. • <! :;

We have been cited to no case holding that a trial court has no jurisdiction to hear ,án independent action for relief under Section 11631- el seq., General Code. We have found no such -ease, In Beaver v. Beardmore, 40 Ohio St., 70, the Supreme Court reversed a judgment of the District': Court dismissing such an action and remanded the cause for further proceedings. If the Supreme Court had concluded that the trial court .had no jurisdiction of such a case, it would hardly have remanded the cause.

In Folliette v. Brett, 16 C. C. (N. S.), 452, 31 C. D., 624, the court held directly that “A petition to vacate a judgment after term may be filed as an independent action. ’ ’

We find no error in the record, and the judgment is affirmed. As our conclusion is in conflict with the judgment of Shedenhelm v. Myers, 77 Ohio App., 385, 68 N. E. (2d), 331, and Terry v. Claypool, 76 Ohio App., 77, 66 N. E. (2d), 233, both decided by the Court •of Appeals of the Third Appellate District, this case will be certified to the Supreme Court for decision because of such conflict.

Judgment affirmed.

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


text:
    Kincaid, Admr., Appellee, v. Dawson et al., Appellees ; Murray et al., Appellants.

      (No. 4308
    Decided January 30, 1950.)

      Messrs. McGhee, Rowe & Evans, for appellee W. BL Sandusky.

      Mr. B. N. Murray, in propia persona, for appellant.

      Mr. Weller Igo, for appellee D. R. Kincaid, administrator.

      Mr. J. Roger McClurg, for appellee J. R. McClurg, administrator.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Probate Court of Franklin County, refusing to set aside a land sale proceeding in the estate of Benjamin F. Dawson, deceased. On the representation that decedent died intestate, the Probate Court appointed an administrator for the estate, who brought an action to sell the real estate to pay debts. The record shows that, after the sale of the real estate was consummated and the proceeds of the sale distributed, a will of the decedent was presented and duly probated, whereupon the appointment of the administrator was vacated and an administrator de bonis non with the will annexed was appointed, who instituted a proceeding to set aside the land sale proceeding.

When an executor or an administrator ascertains that the personal property is insufficient to pay the debts of tbe deceased,-, .together with tbe allowance to tbe widow, it is bis duty to bring an action to sell the real estate. Section 10510-2, General Code; Yates v. Yates, 27 Ohio Law Abs., 633. The allowance to the widow for a year’s support was a debt against the estate. Davidson v. Miners & Mechanics Savings & Trust Co., Exr., 129 Ohio St., 418, 195 N. E., 845. Likewise, tbe claim of tbe Division of Aid for tbe Aged of tbe state of Ohio was a debt against the estate of the decedent. Section 1359-7, General Code.

There was no personal property. Consequently, it was tbe duty of the administrator to sell tbe real estate to pay tbe allowance to tbe widow and tbe claim of the Division of Aid for tbe Aged. Whether the decedent died testate or intestate tbe widow under the facts in this case was entitled to a year’s allowance. Tbe land sale proceeding is not invalidated by reason of tbe fact that tbe appraised value of tbe real estate was less than tbe total amount due tbe widow as an exemption and year’s allowance.

Tbe real estate owned by tbe decedent descended to bis heirs under tbe intestate laws of the state or passed to them under tbe provisions of bis will, subject to tbe right of the fiduciary to bring tbe land sale proceeding' for -the purpose of tbe payment of the debts of-'the estate. Tbe land sale proceeding divested tbe heirs of their interests in such property. Carr, Gdn., v. Hull, 65 Ohio St., 394, 62 N. E., 439.

Under the provisions of Section 10509-24, General Code, a land sale proceeding brought by the administrator is considered to be valid and binding on tbe administrator de bonis ñon with tbe will annexed. We affirm tbe judgment of the trial court finding that there was no showing of good cause for setting aside the land sale proceeding.

Judgment affirmed.

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