author: Guernsey, J.

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

      (No. 364
    Decided July 7, 1945.)

      Mr. Bex W. Hanna, prosecuting attorney, and Mr. Harry 1. Kaylor, for appellee.

      Mr. W. B. Price and Mr. E. B. Wctherill, for appellant.
   Guernsey, J.

This is air appeal on questions of law from a judgment of the Common Pleas Court of Hardin county, Ohio.

Defendant, appellant herein, Richard Knight, together with Ben Curl and Glenn Neal, were jointly indicted for murder in the first degree while attempting to perpetrate a robbery, by the grand jury at the April 1934 term of the Common Pleas Court of Hardin county, Ohio.

In the certified copy of docket entries in the case the following entry appears under date of July 14,1934:

“Deft. Richard Knight arraigned, ind. read, plead guilty. J. R. Stillings appointed to represent Mm. Court heard testimony finding Mm guilty of murder in the first degree with mercy ordered that he be confined in penitentiary of state during Ms natural life and that he pay the costs of pros. J. R. Stillings allowed $100 for representing said deft.”

In the certified copy of journal entries, under date of July 14, 1934, the following entry appears:

“The court find that the defendant was in indigent circumstances and unable by reason thereof to employ counsel, having appointed J. Ray Stillings as counsel for his defense.

“This day came the prosecuting attorney, Harry I. Kaylor, and the defendant Richard Knight, in the custody of the sheriff with his attorney, into open court and the clerk then clearly read the indictment to the defendant, who, upon being arraigned thereon for plea thereto saith, ‘he is guilty of murder in the first degree with mercy,’ which plea was accepted by the prosecuting attorney.

“The court ordered that defendant be imprisoned in the Ohio Penitentiary during his natural life and pay the costs of prosecution. The court having heretofore appointed J. Ray Stillings as counsel for his defense allow him for his services the sum of One Hundred and No/100 ($100) dollars, and order that the same be certified to the county auditor for payment. ’ ’

On April 1, 1944, as will be hereinafter noted, the journal entry above mentioned was corrected by nunc pro tunc entry, to read that such defendant entered a plea of guilty instead of stating that the defendant pleaded guilty to first degree murder with mercy.

No error has been assigned as to that nunc pro time entry so it must be assumed, for the purpose of this case, that the nunc pro tunc correction was properly made and that the plea entered by the defendant on July 14, 1934, was a plea of guilty of murder in the first degree.

Section 13442-5, General Code, as in effect at the. time, among other things, provided, “that if the accused plead guilty, of murder in the first degree, a court composed of three judges as herein provided shall examine the witnesses, determine the degree of crime and pronounce sentence accordingly. In rendering judgment of conviction of an offense punishable by death upon plea of guilty * * * the court may extend mercy and reduce the punishment for such offense to life imprisonment in like manner as upon recommendation of mercy by a jury.”

The court did not impanel a three-judge court, as above prescribed, but, constituted as a single judge court, sentenced the defendant as above set forth.

On July 16, 1934, the defendant was conveyed to the Ohio Penitentiary on warrant issued by the court on the sentence so imposed by it.

Defendant remained in the Ohio Penitentiary until March 7,1944, at which time he was released on a writ of habeas corpus by the Court of Appeals for Franklin county, Ohio, on the ground that the sentence and commitment were void because the court, constituted as a single judge court, had no jurisdiction to entertain the plea as entered, and to sentence the defendant.

That case is reported under the title In re Knight, in 73 Ohio App., 547, 57 N. E. (2d), 273.

On March 7,1944, the sheriff of Hardin county, Ohio, took custody of Richard Knight at the door of the Ohio Penitentiary, by virtue of a warrant issued by the Common Pleas Court on the aforesaid indictment, and returned him to the Hardin county jail.

On March 9, 1944, the prosecuting attorney filed a motion in the Common Pleas Court of Hardin county, Ohio, asking that the .journal entry of July 14,1934, be corrected nunc pro tunc, to read that such defendant entered a plea of guilty of first degree murder, instead of stating that the defendant pleaded guilty to first degree murder with mercy, which motion was granted by the court on April 1,1944.

Thereafter, on April 1, 1944, at the January term of the Common Pleas Court of .Hardin county, Ohio, the defendant Richard Knight filed a motion for discharge, on the grounds that he had been held more than two terms of court without a trial on the indictment, contrary to the provisions of Section 13447-1, G-eneral Code, and contrary to Section 10, Article I of the Constitution of the state of Ohio, which motion was overruled on April 5,1944.

On April 15, 1944, the cause came on to be heard on the motion of defendant for a new trial on the denial of the application of the defendant to be discharged, which motion was overruled by the court.

Thereafter defendant gave notice of appeal to the Court of Appeals for Hardin county, Ohio, from the overruling of the motion, and on motion of the state of Ohio the appeal was dismissed on the ground that the order appealed from was neither a judgment nor final order from which an appeal might be taken.

On May 9, 1944, Richard Knight filed his petition in this court for a writ of habeas corpus, contending that he was entitled to discharge from the custody of the sheriff of Hardin county, Ohio, on the following grounds:

1. That his discharge by the Court of Appeals of Franklin county, Ohio, upon the writ of habeas corpus issued therein, operated in law as a bar to his prosecution on the indictment upon which he was committed to the penitentiary.

2. That he had not been given a speedy trial, as required by the provisions of Section 13447-1, General Code, and Section 10, Article I of the Constitution of Ohio.

Both those grounds were resolved against the petitioner by this court and the writ of habeas corpus was denied.

On appeal from that judgment of the Court of Appeals to the Supreme Court, the Supreme Court affirmed tlie judgment of this court.

The Supreme Court, in its opinion in the case of In re Knight, which appears in 144 Ohio St., 257, 58 N. E. (2d), 671, held that there was no merit to the petitioner’s first ground for relief. On the second ground it was held that where a trial court refuses to. grant the discharge of a defendant under indictment in such court, for failure of the state to cause him to be tried on the aforesaid indictment within the time limited by Section 13447-1, General Code, such order cannot be reviewed or reversed or the prisoner discharged, by a proceeding in habeas corpus before another tribunal. It further held that the question of whether petitioner’s right under Section 10, Article I of the Constitution of Ohio was invaded by the trial court can be reviewed only upon appeal,' it being clear that the trial court does have jurisdiction of the case. It further found that as the indictment found by the grand jury at the April Term, 1934, of the Common Pleas Court of .Hardin county, Ohio, is still in force and effect and the plea of guilty still stands, the sheriff of Hardin county has lawful custody of the petitioner.

After the decision of the Supreme Court, above mentioned, the defendant filed another motion that he be discharged, for the reason that the court has lost jurisdiction of the case and the subject matter thereof by failure to complete- the court, in violation of Section 13442-5, General Code, and in violation of both the Sixth and Fourteenth Amendments to the Constitution of the United States of America, which motion was overruled and the case was set down for trial on the original indictment.

The defendant, by order of the Common Pleas Court, was permitted to withdraw his plea of guilty and to enter a plea of not guilty, and on March 19 to March 24, 1945, both dates inclusive, the case was heard by a jury in that court and a verdict of guilty of first degree murder while attempting to perpetrate a robbery, with a recommendation of mercy, was returned by the jury. Motion for a new trial was duly filed and overruled by the trial court and the defendant was sentenced to the Ohio Penitentiary for life, where the defendant now is. That is the judgment from which this appeal is taken.

The defendant assigns error by the Common Pleas Court, prejudicial to defendant, in the following particulars .*

1. In refusing to discharge the defendant upon his application therefor, for the reason that the defendant was not granted a trial as provided in Section 13447-1, General Code.

2. In requiring the defendant to submit to trial, over his objection, after more than ten years during all of which time the defendant was confined in the Ohio Penitentiary under a void sentence by this court with no opportunity to legally assert his rights under the law and Constitutions of the state of Ohio and the United States of America and in direct violation of both.

3. In not granting the' defendant a speedy public trial as provided in Section 10, Article I of the Constitution of the state of Ohio.

'4. In not granting the defendant a speedy and public trial as provided in the Sixth Amendment to the Constitution of the United States of America.

5. In depriving the defendant of his liberty without due process of law as provided by the Fourteenth Amendment to the Constitution of the United States of America.

6. In refusing to discharge the defendant on his various motions therefor.

7. In finding that it had jurisdiction in the matter, over the objection of the defendant.

8. In finding that it had not lost jurisdiction in the case, over the objection of the defendant.

9. The verdict of the jury and the sentence of the court thereunder are contrary to law, and in violation of the laws of the state of Ohio and the Constitutions of both the state of Ohio and the United States of America.

10. Other errors apparent on the face of the record.

' In his briefs filed herein the defendant does not specify and does not argue any errors under assignment 10, so that under the statute such assignment will not be considered by the court.

Under the first nine assignments the defendant makes the following general contention:

That by reason of the fact that the proceedings had by the court following the defendant’s plea of guilty to murder in the first degree were not in conformity with the above quoted provisions of Section 13442-5, General Code, and the sentence rendered therein and the commitment pursuant thereto were void, he did not have a trial within the meaning of Section 13447-1, General Code, Section 10 of Article I of the Constitution of the state of Ohio, or the Sixth and Fourteenth Amendments to the Constitution of the United States, and consequently he was held in the Ohio Penitentiary from July 16, 1934, to March 7, 1944, without a trial, in violation of the provisions of Section 13447-1, General Code, prescribing that a person shall not be detained in jail without a trial on an indictment for a continuous period of .more than two terms after his arrest and commitment thereon and shall be discharged unless a continuance is had on his motion or the delay is caused by his act; and in violation of the provisions of Section 10 of Article I of the Ohio Constitution prescribing that in any trial in any court the party accused shall have a speedy public trial; and in violation of the provisions of the Sixth 'Amendment to the Constitution of the United States prescribing that in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial; and in violation of the provisions of the Fourteenth Amendment to the Constitution of the United States that no state shall deprive any person of life, liberty or property, without due process of law.

The contention of the defendant under the first nine assignments of error being the same, those assignments will be considered together.

That part of defendant’s contention that he was held in the Ohio Penitentiary from July 16, 1934, to March 7, 1944, without a trial, in violation of the provisions of Section 13447-1, General Code, above referred to, is wholly without merit as the section applies only to persons held in jail and does not apply to a defendant in the penitentiary. Shafer v. State, 43 Ohio App., 493, 183 N. E., 774.

Therefore we shall consider whether any of the constitutional provisions above mentioned were violated, as contended by the defendant.

It is proper to note at this time that the Sixth Amendment to the Constitution of the United States has no application to proceedings in ’state courts so our further consideration will be limited to a determination as to whether the other constitutional provisions referred to have been violated. State v. Swain, 147 Ore., 207, 31 P. (2d), 745, 32 P. (2d), 773, 93 A. L. R., 921.

The Common Pleas Court is a court of general jurisdiction. The Common Pleas Court in the instant case had jurisdiction of the subject matter of the offense charged in the indictment against the defendant and jurisdiction of the person of the defendant.

In the case of In re Knight, supra, the Supreme Court held definitely that notwithstanding the invalidity of sentence and commitment of the defendant to the penitentiary and his discharge therefrom on writ of habeas corpus by the Court of Appeals for Franklin county, Ohio, the Common Pleas Court had jurisdiction of the defendant and that the indictment found by the grand jury at the April Term, 1934, of that court, is still in full force and effect.

The indictment of the defendant and the proceedings had thereon, including his arrest, his arraignment in open court, the appointment of counsel for him, his plea of guilty to first degree murder, the sentence of the court based thereon and his commitment to the Ohio Penitentiary pursuant thereto, constituted a speedy public trial within the meaning of Section 10 of Article I of the Ohio Constitution, and also due process of law within the meaning of Amendment XIY of the Constitution of the United States. As the trial court had jurisdiction of the subject matter and the person of the defendant this is true notwithstanding the court in proceeding upon the plea of guilty, acted through a single judge instead of three judges, as prescribed in Section' 13442-5, General Code, and otherwise failed to proceed in the manner therein prescribed. The act of the court in this respect was erroneous and without authority in law and, therefore, void, warranting the release of the defendant from the Ohio Penitentiary on habeas corpus but did not preclude the indictment and the proceedings thereon from constituting a trial and due process of law.

Such erroneous adjudications are made frequently in trials of cases, but where the court has jurisdiction of the subject matter and the person of the accused and the proceedings are otherwise correct, as in this case, it has never been held that snch erroneous adjudication precluded the proceedings from constituting a trial and due process of law, within the meaning of the constitutional provisions above mentioned.

As the proceedings outlined constituted a trial and due process of law, within the meaning of the constitutional provisions, the contention of the defendant in that respect is without merit.

Furthermore, after the defendant had entered his plea of guilty in the case and sentence was pronounced and he had been taken to the penitentiary to commence serving his sentence he was the only person who could demand a new trial or ask that the sentence entered on' his plea of guilty be vacated.

In this situation, if the" proceedings had in the trial court in which the sentence was rendered did not constitute a trial, the burden was upon the defendant, if he desired a speedy trial and due process of law within the meaning of the constitutional provisions 'above mentioned, forthwith to have the sentence declared void so that a trial might be had. 14 American Jurisprudence, 863, Criminal Law, Section 137. Ex Parte Meadows, 71 Okla. Cr. Rep., 353, 112 P. (2d), 419. Not having done so the defendant cannot complain of the failure of the state to afford him a speedy trial and due process of .law under the constitutional provision mentioned.

A person charged with crime cannot successfully assert that his right to a speedy trial has been invaded unless he asked for trial. Pietch v. United States (C. C. A. Okla., 1940), 110 F. (2d), 817, 129 A. L. R., 563, certiorari denied, 310 U. S., 648, 84 L. Ed., 1414, 60 S. Ct., 1100.

. Demand for speedy trial is essential to right. Poffenbargar v. United States (O. O. A. 8), 20 F. (2d), 42; Gollms v. United States (O. O. A. 8), 20 F. (2d), 574.

Where no demand for trial was made defendant cannot complain of delay. O’Brien v. United States (C. C. A. 7), 25 F. (2d), 90.

For the reasons mentioned, the contention of the defendant under assignments 1 to 9, inclusive, is without merit and the judgment will be affirmed at the costs of defendant.

Judgment affirmed.

Jackson and Metcalf, JJ., concur.

Metcalf, J., of the Fourth Appellate District, sitting by designation in the Third Appellate District.


source: Caselaw Access Project

author: Skeel, P. J.

license: Public Domain

text:
    The State of Ohio, Appellee, v. Skypeck, Appellant.
    (No. 20197
    Decided November 26, 1945.)

      Mr. Frank T. Gullitan, prosecuting attorney, for appellee.

      Mr. Joel Krupman, for appellant.
   Skeel, P. J.

This case -comes to this court on questions of law. The defendant was arrested on a charge of grand larceny. The defendant entered a plea of guilty to the indictment. On November 16, 194-4, the court suspended the imposition of sentence and put the defendant on probation to W. B. Dillon, chief of the probation department of the Common Pleas Court of Cuyahoga county, for a period of five years.

On June 11, 1945, a capias was ordered for the defendant by a judge other than the one who put the defendant on probation. On June 12, 1945, the defendant was brought before the court. Thereupon, after a conference between the judge,” the deputy probation officer and defendant’s counsel, in which it was stated that the court had ordered defendant’s arrest on information received from a member of the Cleveland police department, the following procedure is disclosed by the record:

“The court: I desire to inform you gentlemen that I take full responsibility for the issuance of the capias for the arrest of Michael Skypeck based on information that 1 have received from a member of the Cleveland police department and not by reason of any action on the part of the probation department.

‘ ‘ Thereupon, the parties hereinabove named then returned to open court and the following proceedings were had in the presence and hearing of the defendant; Michael K. Skypeck:

“The court: Michael Skypeck, what have you been doing for a living since you have been planed on probation?

“The defendant: I was placed on probation December, 1944, by Judge Baer. Prior to that time and for some period after being placed on probation, I worked at the East 105th Street Service & Parking Station located on East 105th street near Euclid avenue. When my probation officer, Mr. Scbiffer, requested that I get away from the East 105th street and Euclid avenue center, I then was employed as a car service man at a garage in Cleveland Heights. My mother became ill and Mr. Scbiffer allowed me to go to Massachusetts where she lives, where I spent one week and returned, reporting to him. I then worked in the West Side Market. I have worked all during that period except about three weeks. The last .two weeks I have been painting and paper-hanging my home-where I live with my wife and child. I also helped Mr. Krupman in the office while he was without a stenographer.

“The court: I don’t believe you. Haven’t you been doing some gambling?

“The defendant: I did some gambling before I was put on probation, but not since.

“The court: Where do you get the good clothes that you wear?

“The defendant: I had those clothes before I was placed on probation.

‘ ‘ The court: Where do you get the money you have been spending? .

“The defendant: I have been working pretty steady for the past year and a half, and have had some saved.

“The court: You have a bad past record and although I hate to act as the Court of Appeals in reviewing Judge Baer’s decision to place you on probation last term, nevertheless, I am going to order the original sentence into execution. Ohio State Penitentiary.

“Mr. Krupman-: Counsel for defendant excepts.

“The court: You may save your exception.”

The above constitutes the entire record in this case.

This appeal is from the judgment that was entered by which the defendant was sentenced to the penitentiary upon the revocation of his probation. '

The first claim of the defendant is that the court •erred in ordering “the original sentence into execution” when no sentence had yet been imposed, without first complying with Section 13451-1, General Code, by informing the defendant of the decision of the court and inquiring whether he had anything to say why judgment should not be pronounced.

It is true that until the order revoking probation was made, no sentence had yet been imposed. But the order revoking probation and ordering defendant sent to the penitentiary was sufficient where the defendant had entered a plea of guilty. Aud further the record discloses that Section 13451-1, General Code, was fully complied with by the court at the time the defendant was placed on probation.

The second question presented by this appeal is the defendant’s claim that there was no evidence that the defendant had violated the terms of his probation, and that the court failed to afford him a proper hearing as provided by Sections 13452-4 to 13452-7, inclusive, General Code.

Section 13452-4, General Code (113 Ohio Laws, 202), provided:

“Upon entry in the records of the judge or magistrate, of the order for the probation provided for in this chapter, the defendant shall be released from custody as soon as the requirements and conditions required by the judge supervising the probation, have been properly and fully met, but shall continue under the control and supervision of the department of probation or probation officer, as the case may be, to the extent required by law, the terms and conditions of the order of probation, and the rules and regulations governing said department of probation. ’ ’

Section 13452-5, General Code, reads:

“The probation provided for in this chapter shall continue for such period as the judge or magistrate shall determine, and may be extended from time to time, the total period, however, not exceeding five years, but if, during such period, the probationer absconds or otherwise absents himself from the jurisdiction of the court without permission from the probation department, or the court, so to do, or if he is confined in any institution for the commission of any offense whatever, the probation period shall cease to run until such time as he is brought before the court for its further action under this act.”

In this case the trial judge determined that the probation should continue for five years.

Section 13452-7, General Code, reads:

“When the defendant is brought before the judge or magistrate, such judge or magistrate shall immediately inquire into the conduct of the defendant, and may terminate the probation, and impose any sentence which might originally have been imposed or continue the probation and remand the defendant to the custody of the probation authority, at any time during the probationary period fixed as herein provided, when the ends of justice will be served and- the good conduct of the person so held shall warrant it, the judge or magistrate may terminate the period of probation * * *.”

The foregoing sections are a part of chapter 31 of the Code of Criminal Procedure, dealing with the subject of probation. Those sections supersede the power of the court at common law to place a defendant on probation after he has been found guilty of or has pleaded guilty to a crime in a court of competent jurisdiction. #

The history.of those sections of the Code go back to an act of the Legislature passed by the 77th General Assembly in 1908 (99 Ohio Laws, 339) which became Sections 2210 to 2215, General Code, inclusive, of Part First, Title Y, Division IY, Chapter 3, and Sections 13706 to 13715, inclusive, General Code, of Part Fourth, Title II, Chapter 11, General Code. The procedure, provided for in case of the claim that a defendant who had been placed on probation had violated the conditions of his probation, was contained in Section 2213, General Code, and in part provided:

“If a person placed on probation fails to conduct himself in accordance with the rules and regulations of the institution in whose charge he has been placed, a field officer thereof, without warrant or other process, because of such failure, may arrest and convey him tó the institution and the board of managers, after full investigation and a personal hearing, may forthwith terminate the probation and cause him to suffer the penalty of the sentence previously suspended. * * *”

Section 13711, General Code (now Section 13452-7,, General Code), provided in part that:

“When the defendant is brought before the court or magistrate,”• (when it is claimed that he has violated the conditions of his probation) “such court or magistrate shall immediately inquire into the conduct of the defendant * * *.” •

It is clear from this history of the legislation dealing with the rights of a court to place on probation a defendant found guilty of a crime, or after he had plead guilty to a criminal charge, that, after such defendant was placed on probation, the order of probation could not be revoked except upon a hearing or judicial inquiry as to whether he had violated the terms of his probation.

Sue!i a rule is supported by the great weight of authority outside the state of Ohio.

In the case of State v. Bonza, 106 Utah, 553, 150 P. (2d), 970, the defendant had been placed on probation under certain conditions, including the duty to make restitution and obey the laws of the state. During the term of probation an affidavit was filed with the court alleging that the defendant had been found guilty of petit larceny and that he also had burglarized a certain building. Upon hearing, the court terminated his probation, finding that the conditions' of his probation had been violated. The defendant contended that as to the charge of burglary he must be found guilty by a trial before such charge could be used against him on the question of his violation of the conditions upon which his probation was granted. The court found against him on this contention. The section of the Code of Utah under which probation was granted (Statute 105-36-17 U. C. A. 1943), provided in part:

“Upon conviction of any crime or offense, if it appears compatible with the public interest, the court having jurisdiction may suspend the imposition or the execution of sentence and may place the defendant on probation for such period of time as the court shall determine. The court may subsequently increase or decrease the probation period and may revoke or modify any condition of probation * *

The court, in concluding that the defendant was entitled to a hearing before his probation could be revoked, said (paragraph 11 of the opinion, page 559):

.“A defendant out of prison on probation is accorded due process of law by the following steps, all of which were followed in this case: (1) The filing of a verified statement or an affidavit in the case setting forth facts which show a violation of the terms of probation. (2) The issuance of an order to show cause and citation thereon requiring the defendant to appear and show cause why probation should not be revoked, apprising defendant of the ground or grounds on which revocation is sought, and specifying a proper time for hearing. (3) A hearing before the court on the question of violation of some term or condition of probation, at which the defendant has the opportunity to cross-examine witnesses against him and also to present evidence to refute the claimed violation of the conditions of probation. (4) A determination of the question, followed by entry of'an appropriate order. State v. Zolantakis [70 Utah, 296, 259 P., 1044, 54 A. L. R., 1463], supra.”

And the fourth paragraph of the headnotés is as follows: '

“4. Defendant must be given opportunity to be heard before revocation of probation. (Utah Code 1943, 105-36-17.)”

In the case of State v. Smith, 196 N. C., 438, 146 S. E., 73, the defendant had been found guilty of slander and sentenced, the sentence being suspended and defendant placed on probation. Thereafter, the order of probation was revoked and defendant prosecuted error from such order. The Supreme Court of North Carolina, in the opinion, said:

“It does not appear from the record that the defendant was offered an opportunity in-open court to be heard upon the question as to whether he had violated the conditions upon which the original judgment was suspended. Neither is there evidence or finding of fact to the effect that any of said conditions had been violated. ’ ’

Thereupon the court sustained the defendant’s objections to the order appealed from, holding that where, on defendant’s conviction for slander, capias on the sentence was postponed on condition of defendant’s good behavior and engaging in regular occupation, a subsequent judgment, enforcing sentence without giving defendant an opportunity in open court for a hearing on the question of whether he had violated the conditions, and without evidence or finding as to a violation of the conditions, was unauthorized.

The order of the court in the instant case suspending the imposition of sentence upon the defendant and placing him on probation was as follows:

“Dec. 16, 1944. To court: The defendant herein having on a former day of this term entered a plea of guilty to the charge of the indictment in this case; was this day brought into court in custody of the sheriff; and the said defendant being inquired of if he had anything to say why judgment should not be pronounced against him and having nothing but what he hath already said: It is therefore ordered and adjudged by the court that imposition of sentence in this casq be and the same hereby'is suspended for a period of five (5) years and the defendant is placed on probation for the said period of five (5) years, under the supervision of W. B. Dillon, on conditions of good behavior etc.”

In the light of that entry, the general rules of the probation department were applicable, which in brief are, as disclosed by the transcript: To work regularly and when out of work to report such fact to the probation department; to live a clean life and keep away from undesirable places; to make reports at stated intervals to the department; not to leave the jurisdiction of the court without authority; and to follow all instructions of the probation officer. There is no evidence in the record that the defendant violated any of those provisions. The record discloses that the probation department did not participate in any inquiry nor did that department present any evidence of a failure of the defendant to comply with the terms of probation.

The determination of whether the defendant, by his conduct, violated the requirements of his probation is under Section 13452-7, General Code, to be determined by a “judicial inquiry.” The defendant must be afforded a reasonable opportunity to be heard. This does not require the formality of a trial but it does require the presentation of the facts in open court so that the court, in the exercise of sound discretion, may deal justly with the defendant.

It is the opinion of the majority of this court that the colloquy between the court and defendant, which makes up thé complete record of the case, did not constitute a judicial inquiry into the conduct of the defendant as required by Section 13452-7, General Code, and that the action of the court in ordering the original sentence into execution was a clear abuse of discretion.

The state has called our attention to the case of In re Weber, 75 Ohio App., 206, 61 N. E. (2d), 502, as supporting the contention that the court. may sua sponte revoke the suspension of a sentence even during good behavior. The case is not in point because the court in that case was primarily concerned with the question of whether a writ of habeas corpus was the proper remedy to seek relief from claimed irregularities in the proceedings. It was there concluded that such a writ was not the proper remedy. The court does, on pages 207 and 208 of the opinion, give some consideration to the question of the court’s power to revoke a former probation order without an “inquiry” as provided by Section 13452-7, General Code. The court cites Weber v. State, 58 Ohio St., 616, 51 N. E., 116, as the basis of its conclusion. That case, which was decided Before the chapter on probation became the law? of this state, held in the opinion on page 619 as follows:

“But when the suspension is without express conditions, as in this case, it is within the power of the court to set aside the suspension at any time during the same term, on its own motion, and to order the sentence to be executed.”

In the case here under consideration, there were express conditions upon which the defendant was afforded probation, and the order revoking probation was not in the same term of court. It is clear, therefore, that Weber v. State, supra, is not in point in the instant case when the facts are totally different and the statutes enacted since the date of such decision have completely modified the common-law rule.

For the foregoing reasons the judgment is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

Morgan, J., concurs.

Lieghley, J., dissents.


author: Wiseman, J.

text:
    Wetzel et al., Appellants, v. Besecker et al., Appellants; Besecker, Appellee.

      (No. 643
    Decided November 15, 1945.)

      .Messrs. Murphy. & Staley, for appellants.

      Messrs. King & Young, for appellee.
   Wiseman, J.

This cause comes before this court from the Common Pleas Court of Darke'county, Ohio, on an appeal on questions of law.

This is a will construction suit in which the two plaintiffs, being two children of the testator, brought an action against the widow of testator, a third child and one of the executors named in the will, for a declaratory judgment as to the true construction and interpretation of the will of M. M. Besecker who died testate a resident of Darke county, Ohio, on the 10th day of June, 1925. The will was executed on the 17th day of March, 1925, and was duly admitted to probate by the Probate Court of Darke county, Ohio, on the 27th day of June, 1925. The record shows that no executor has been appointed or qualified to administer the estate.

The will of the testator, insofar as it is pertinent to this case, is as follows:

“First — My will is that all my just debts and funeral expenses shall be paid out of my estate, as soon after my decease as shall be found convenient.

“Second — I give, devise and bequeath to Clara E. Besecker my beloved wife all my chattels monies credits, and my farm of 81.93 acres in Harrison township, Preble county, Ohio, and all real estate that I may have at my decease, to be hers as long as she remains my widow should she remarry she to have one half of my real estate and the other half to be equally divided among my three children Mrs. Alva Rhoades, Walter Besecker, and Miriam Besecker, should either heir die without children their share to go to the other two.

“3rd. And should any heir object to my will they shall forfeit their share.

“á. I hereby nominate and appoint Clarence Rhoades and Walter Besecker to be my executors without bond and appraisement and the court so instruct.

“I also request that my executors shall care for my widow and property.

“5íh. I empower my executors to sell my real estate to the best of their ability and I also empower them to make deed to same. I also empower my executors to make all settlements of claims and collections.”

Plaintiffs in their petition allege that they are in doubt as to the true, construction of the will in the following particulars:

“ (1) What estate, if any, is given by item 2 of said will to the defendant, Clara E. Besecker?

“ (2) What estate, if any, is given to the children of said testator, the plaintiffs and the defendant, Walter Besecker?

“(3) What right, if any, does the defendant, Clara E. Besecker, have to use said property for her care, support and maintenance ?

“(4) How and when may the real estate mentioned in item 2 of said will be disposed of, and by whom?”

The principal question for the court to determine is the character of the interest taken by the defendant, Clara E. Besecker, the widow of the testator.

It is contended by counsel for the plaintiffs that the widow took an absolute fee in an undivided one-half of the property, and a defeasible fee in the remaining one-half thereof, the fee in the remaining one-half to be defeated only in the event of her remarriage.

The cardinal rule for the court to follow in all will construction casos is to ascertain the intention of the testator. Rhles of construction, which the courts have worked out, are rules which are intended to assist the court in ascertaining the intention of a testator. Counsel for the plaintiffs rely very strongly on the presumption that a testator is never intended to die intestate. While there is a presumption against intestacy, there is also a presumption in favor of the heir. In 2 Page on Wills (Lifetime Edition), 854, Section 928, the 'test is as follows:

“Every reasonable construction in the will must be made in favor of the heir at law; and he can be disinherited only by words which produce that effect clearly and necessarily, either by express terms or by necessary implication.”

Again on page 855, the text is as follows:

“The presumption against intestacy is of no greater force than the presumption in favor of the heir.

“The presumption in favor of the heir is of no greater force than the presumption against intestacy.”

For this court to hold that the widow took a defeasible fee would require the court to insert for the testator a very necessary dispositive clause which has been omitted from the will. The testator failed to provide in his will where the estate should go on the death of the widow in the event she did not remarry. The court is powerless to supply a provision to overcome this defect.

What interest did the widow take? The law of Ohio is fairly well settled that when a testator gives an interest in his estate to his widow “so long as she remains my widow,” the widow takes a life estate. The life estate is known as a “determinable” life estate for the reason that it is terminated upon her remarriage. See Fetter v. Rettig, 98 Ohio St., 428, 121 N. E., 696; Failor v. Schmiedel, 18 Ohio Law Abs., 106; Eastman v. Sold, 66 Ohio App., 383, 34 N. E. (2d), 291; 41 Ohio Jurisprudence, 760, Section 640.

This court may very well adopt and -apply to the facts in this case, the language used by Judge Nichols in Fetter v. Rettig, supra, on page 431:

“There is nothing in the will under consideration that would justify the holding that the intention of the testator was to give his widow an estate in fee simple. Such a construction would require the court to ignore the significant and express limitation in the will, that her interest in the property was to be circumscribed within the limit of her widowhood.”

This court has been favored with a copy of the well reasoned opinion by Judge Marshall of the lower court, and has no hesitancy in approving the conclusions reached by the trial court.

Answering the questions propounded in the order stated, this court concludes that under item 2 of the will, the defendant, Clara -E. Besecker, widow of testator, took a life estate in all the real estate of the testator so long as she remains unmarried. In the event of her remarriage, said life estate will be terminated and she will take one-half interest in the real estate in fee simple, and the other one-half is given to testator’s three children, Mrs. Alva Rhoades, Walter Besecker and Miriam Besecker Wetzel, share and share alike.

The' court further finds that should Clara E. Besecker, the widow, remarry, the interest taken by the ■children hereinbefore named, is a “determinable” or “defeasible” fee estate: The interest of each child may be defeated in case of his or her death without children, in which event the deceased child’s share shall go to the surviving children of the testator.

The court finds that in the event Clara E. Besecker, widow of testator, should die without remarrying, the fee simple title to the real estate would descend as intestate property for the reason that the testator made no disposition of his estate if such a contingency should arise.

The court further finds that there is no provision in the will of testator giving the right to the widow, Clara E. Besecker, to consume any part of the property for her care, support and maintenance. The words used by the testator in item 4, as follows: “I also request that my executors shall care for my widow and property, ’ ’ do not confer any right on the widow to consume any portion of the corpus of the estate. This court expressly holds that the widow is entitled to a life estate and as such is entitled to use only the income from the estate.

The court further finds that the power of sale given to the executors in item 5' of-.the will can be exercised only by the executors for the purpose of paying debts of the estate.

The court also approves the judgment of the trial court in the apportionment of the costs of this proceeding against the plaintiffs and defendants, Clara E. Besecker and Walter Besecker, in equal portions.

The judgment of the trial court is affirmed on all matters in issue.

Judgment affirmed.

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


author: Geiger, J.

text:
    Wegley, Appellant, v. Snyder et al., Appellees.
    (No. 1886
    Decided April 14, 1945.)

      Mr. John F. Edwards, for appellant.

      Mr. John B. Harshman, for appellee M. G. Snyder.

      Mr. Thomas J. Herbert, attorney general, for appellee Industrial Commission.
   Geiger, J.

This case is before this court on appeal on questions of law from a judgment of the Court of Common Pleas sustaining a motion of a defendant to require the plaintiff to elect against which of the two defendants, M. G. Snyder and the Industrial Commission of Ohio, she will proceed. The final order from which appeal is made is:

“It is further ordered that this plaintiff elect whether she will proceed against the defendant, M. G. Snyder, or against the defendant, the Industrial Commission of Ohio.”

Briefly, the facts are as follows:

Oil February 6, 1942, and prior thereto, defendant M. G. Snyder, an appellee herein, was the owner of and operated a filling station and lubritorium in Montgomery county, Ohio. On such date and prior thereto, Snyder was also the owner and operator of a gravel business located near the filling station and lubritorium. The filling station and the gravel business adjoined the same highway. Snyder’s employees performed services for the mutual benefit of both the filling station and the gravel pit, the two enterprises were operated substantially as the same business, and no separate office for the transaction of the gravel pit business was maintained. An office for the transaction of the business of the filling station and the gravel pit was maintained in the filling station. At the entrance to the gravel pit, a large sign advertised the fact of the proximity of the filling station and that the employees of the filling station received and transmitted orders for gravel.

The plaintiff’s decedent, Bernard Wegley, was employed by defendant Snyder and worked continuously in the filling station business until his death. His duties were the performance of services generally of a filling station and lubritorium attendant, and the performance of certain duties for the sand and gravel business in taking care of the cars and trucks, servicing the same, taking the calls and orders for sand and gravel and accepting money for the payment of same.

Snyder kept two of the dump trucks used in the sand and gravel business at the filling station during the night or whenever they were not in use. It was the duty of Wegley to drive such trucks into the filling station and place them in position for storage. In order to get the trucks in the filling station into position, it was necessary to drive one-of them onto a ramp which was part of the lubricating hoist. Wegley, on the 6th day of February 1942, while in the performance of his duties, had driven one of the trucks into the lubritorium upon the ramp and had closed the door, when the truck ran off the ramp and caught the decedent between the truck and the door, killing him instantly.

Plaintiff, Gertrude Wegley, filed her application, as widow of the decedent, with the Industrial Commission of Ohio, on a form prescribed by the commission for claims against noncomplying employers. The application and an application for rehearing were denied, and the claim was appealed to the Court of Common Pleas of Montgomery county, Ohio. Snyder and the Industrial Commission were made parties defendant. The Industrial Commission was made a party defendant on the claim of the plaintiff that it was a necessary party for the complete determination of the questions involved. It is claimed that Snyder did not pay into the state insurance fund on his employees at the filling station and lubritorium, but did pay into the fund on his employees engaged in the operation of the sand and gravel pit, that is, those actually working at the pit. It is asserted that he did not pay into the fund on the employees of the filling station and lubritorium who performed certain duties for the said sand and gravel pit, and did not pay on the defendant’s decedent, Bernard Wegley.

It is claimed by the plaintiff that the decedent was employed in performing services both at the filling-station and at the gravel pit. The original claim was filed with the Industrial Commission, and evidence was tendered in support of this contention without any objection on the part of the commission or the other defendant to the manner in which the claim was filed.

Snyder filed no answer denying that the decedent was employed by bim at the time of the injury causing death.

The specifications of error by the plaintiff are briefly that the court erred in sustaining the defendants’ motion for an order requiring plaintiff to elect whether she would proceed against Snyder or the Industrial Commission, the point being urged that Snyder and the Industrial Commission are necessary parties defendant for the full, and complete determination of plaintiff’s lights in the matter, and that unless objection is made to the form» used in the presentation of the claim, the same is waived.

The first matter that presents itself to our attention is whether the order of the court below, requiring the plaintiff to make an election as to which defendant she would proceed against, was a final order under Section 12223-2, General Code, which describes a final order as being “an order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment, or an order affecting a substantial right made in a special proceeding.”

Without arguing the matter at length, we are of the opinion that the order of the court that the plaintiff elect against whom she is to proceed, Snyder or the Industrial Commission, affects her substantial rights and prevents a judgment. It is true that she may not have a double recovery, but she has the right to bring into court the ones she claims are concerned in the matter that she presents. If Snyder occupied a dual position, one as manager of the filling station, in which capacity he had three or more employees but for whom he paid nothing into the state insurance fund, and if at the same time he occupied the position of manager of the gravel pit where he had three or more employees for whom he paid the prescribed fees into the state insurance fund, and if the decedent, Bernard Wegley, gave part of his time to one and part to the other and was killed while he was on the property of the filling station by an instrumentality belonging to the gravel business; the plaintiff should have a right to go forward against both of the possible sources of her compensation for the loss of her husband and try the case on the facts as may be developed. Section 11255, General Code. She should not be obliged to now resort to the exclusive right to recover through Snyder, a noncomplying employer who possibly might have nothing out of which to compensate her after she has recovered a possible judgment. Nevertheless, she has a right of action against him. She should not be obliged at this time, before the trial of the case, to make an election. That is a matter which may easily be determined after the trial has been had and evidence introduced on her behalf. See Section 1465-61, General Code, defining “employee,” and.Section 1465-68, General Code.

One of the jurisdictional grounds which is a basis for a rehearing is the finding that “the employer was not amenable to the law. ’ ’

Section 1465-90, General Code, provides, in part:

“If the claimant is seeking compensation from the slate insurance fund, the defendant in such action shall be the Industrial Commission * * *. If the claimant is seeking compensation from an employer who has qualified to pay compensation direct # * ®, or from an employer who has failed to comply with this act, the defendant in such action shall be such employer % ^ T& ) }

If there is any evidence tending' to establish the liability of Snyder as proprietor of the filling station, as to which he had not complied by paying into the fund, he clearly is a proper and necessary party de-' fendant.

We have held, in Larimore v. Perfect, Admr., 45 Ohio App., 136, 186 N. E., 739, that in an action for compensation against an administrator of an employer, the Industrial Commission is a proper and necessary party.

In Sanders v. Industrial Commission, 45 Ohio App., 350, 187 N. E., 185, it was held that the Industrial Commission was a proper party defendant in an action for workmen’s compensdtion, even though the employer did not employ three or more workmen regularly sojas to be amenable to the Workmen’s Compensation Act.

Section 1465-74, General Code, specifically provides for the' procedure against an employer who has failed to make payments to the state insurance fund and refused to pay compensation to the injured person or his dependents.

We find no case on the specific question whether the order requiring a party to elect is a final order, but in Ghaster v. City of Fostoria, 115 Ohio St., 210, 152 N. E., 651, 46 A. L. R., 1439, it was held that a sustaining of a demurrer and dismissal of the suit was a final order. This seems to be analogous, at least, to our question.

State, ex rel. Galloway, v. Industrial Commission, 27 Ohio Law Abs., 697, holds:

“An employee who has sustained two injuries in the same employment, at different times, one of which resulted in permanent disability, but which one may be difficult of proof, may prosecute both claims and is not required to elect one claim as a condition precedent to prosecution of the Other.”

Judge Barnes, at the bottom of page 699, first column of the opinion in that case, discusses subject-matter which is analogous to that in the instant cause.

We are of the opinion that the order of the court below is a final order from which appeal can be prosecuted, and we are of the further opinion that the court below was in error in requiring plaintiff to make an election. Sections 1465-74 and 1465-75, General Code.

The judgment of the court below is hereby reversed and the cause remanded.

Judgment reversed.

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


author: Stevens, P. J.

text:
    Connors et al., Appellees, v. Dobbs, Appellant.
    (No. 3703
    Decided February 14, 1945.)

      Messrs. Slabaugh, Seiberling, Guinther c& Pflueger, for appellees.

      Messrs. Buckingham, Doolittle & Burroughs, for appellant.
   Stevens, P. J.

On May 4, 1941, at about 10 a. m., James H. Connors was driving his Packard automobile in a northerly direction in North Hawkins avenue in the city of Akron, at a lawful rate of speed. At the same time, Ernest Dobbs was driving a Buick automobile in a westerly direction on Bryden drive, which street intersects North Hawkins avenue at a right an-' gle. Dobbs was also proceeding at a lawful rate of speed.

A collision occurred between said' automobiles, in which Connors received personal injuries; and his car was damaged. •

Connors carried collision insurance upon his auto with National Retailers Mutual Insurance Company, which company paid Connors for. the damage to his auto.

Connors and the insurance company then sued Dobbs —plaintiff Connors seeking to recover for his personal injuries, and plaintiff insurance company seeking reimbursement for the amount paid to Connors because of collision damage to his automobile.

The case was submitted to the trial court, without the intervention of a jury, and a judgment was entered in favor of both plaintiffs. This appeal on questions of law followed.

North Hawkins avenue, at the point of this collision, is paved with concrete slab to a width of about 20 feet.

Bryden drive is paved with taf-bound macadam to a width of about 24 feet.

By ordinance of the city of Akron, passed in 1936, “Hawkins avenue from Wiltshire road to Market street” was designated as a main thoroughfare. Within the limits so established is the Bryden drive intersection with Hawkins avenue.

Section 6310-32, General Code, confers upon local authorities “the right to designate by ordinance or resolution additional main thoroughfares and to designate what vehicles shall have the right of way at intersections of main thoroughfares; provided, however, that legible and appropriate signs be erected along the roads and highways intersecting such main thoroughfares # *

The above section was in effect at the time of the collision under consideration.

It is apparent that, under the pleadings, plaintiffs’ right to recover from defendant must be predicated upon the basis of negligence of defendant which proximately caused plaintiffs’ damage, to which the plaintiff Connors did not negligently contribute.

A determination of those questions of negligence involves an examination of the rights of the parties as they approached and entered the intersection of Hawkins avenue and Bryden drive.

Concededly, plaintiff Connors was traveling upon a street which had been, by appropriate action of the city authorities, designated as a main thoroughfare. If legible and appropriate signs were erected upon Bryden drive after such designation, then the steps necessary to constitute the street a main thoroughfare had been taken.

There is conflicting evidence concerning the erection of stop signs upon Bryden drive, subsequent to its designation as a main thoroughfare, but we are of the opinion that the evidence justifies the finding by the trial court that the evidence preponderates in favor of appropriate signs having been erected after the passage of the ordinance.

There is also involved the question of the knowledge possessed by the two drivers. Connors knew that Hawkins avenue was a main thoroughfare and proceeded upon the assumption that he had a preferential right thereon, over cars approaching upon intersecting streets. Dobbs knew that Hawkins avenue south of Market street was a main thoroughfare, but claims lie did not know such to be the case north of Market street.

It may be taken as proved that there wa's, at the time of this occurrence, no stop sign on Bryden drive east of its intersection with Hawkins avenue.

What were the rights of the respective parties under these circumstances?

There is a case which holds that the failure of the city to install stop signs on intersecting streets after the designation of a street by ordinance as a main thoroughfare, precludes the street so designated from becoming a main thoroughfare, with the attendant preferential right of way, until stop signs have befen erected on the intersecting streets, as required by Section 6310-32, General Code. See Bartlett v. McDonald, 59 Ohio App., 85; 17 N. E. (2d), 284.

There is not, however, so far as .we have been able to ascertain, any Ohio case holding that a street so designated as a main thoroughfare,’where stop signs on intersecting streets have been erected after the designation of the main thoroughfare, loses its character as a main thoroughfare merely because said stop signs on the intersecting streets may have become illegible, or have been destroyed or otherwise removed.

It must be remembered that the place where the collision under consideration occurred was within the intersection of two improved streets.

Under the pronouncement of the Supreme Court of Ohio in Elms v. Flick, 100 Ohio St., 186 (syllabus 1), 126 N. E., 66, “the term ‘the road’ as used in Section 6310, General Cpde, should be construed to mean the improved portion of the road, where it is disclosed that it is of ample width to permit the passing of automobiles thereon with safety.”

And inasmuch as thi,s occurrence involves an intersection of two improved streets, it may be well to define what we understand the term “intersection” to mean.

Where two improved streets or highways intersect, the term “intersection” means the improved area embraced within the lateral boundary lines of the two streets or highways, as improved, extended to their points of juncture with the lateral boundary lines of the intersecting street or highway, as improved.

Plaintiff Connors, possessed of knowledge that Hawkins avenue was a main thoroughfare, had a right to rely on that knowledge and upon his preferential right to proceed uninterruptedly across its intersection with Bryden drive, until such time as, in the exercise of ordinary care, he became aware of defendant’s intention not to stop before entering the intersection. 'Then he was required to exercise ordinary care not to injure Dobbs.

Dobbs, under these circumstances, was- by law required to stop before entering the intersection, and his failure so to do was negligence.

A proper sign having been erected, Dobbs was charged with knowledge of the designation -of Hawkins avenue by ordinance as a main thoroughfare, even in the then absence of a stop sign; and the evidence would warrant the inference that he had actual knowledge that Hawkins avenue, at the place of collision, was so designated,' and that, even though he was approaching from plaintiff ’s right, he was required to come to a full stop before entering said intersection.

The trial court was entirely justified in denying defendant’s nlotions for a directed verdict made at the conclusion of plaintiff’s evidence, and at the conclusion of all of the evidence, in the absence of a showing of contributory negligence on the part of the plaintiff, which we find not to have been shown.

However, entirely independent of a preferential statutory right of way in either of these parties, and assuming the rights of the parties here to be only such as accrued to them under the common law without any preferential right in either, it seems to the members of this court that the place of collision within the intersection most strongly indicates that the defendant entered the intersection without exercising any care to avoid colliding with the car of the plaintiff.

Plaintiff had driven more than half- way across the 24-foot intersection of Bryden drive, keeping at all times on the right-hand side of Hawkins avenue, which was a 20-foot street. Half of the width of Hawkins avenue is- 10 feet; more than half of said 10 feet was occupied by plaintiff’s automobile. It thus becomes apparent that, for the defendant to run into the right side of plaintiff’s automobile, defendant could have proceeded not more than 4 or 4% feet into the intersection to the point of collision — that point being in the northeast quadrant of the intersection.

Moreover, defendant admits that he looked neither to the right nor the left after leaving a point 25 feet east of Hawkins avenue, at which point his vision was obscured by shrubbery.

We are of the opinion that the judgment entered by the trial court was warranted by the evidence contained in this record. In any event, we are unable to conclude that the finding and judgment are manifestly against the weight of the evidence, as claimed by the appellant. Nor are we able to find that plaintiff Connors was guilty of negligence which proximately contributed to cause his own injuries. •

In the face of these conclusions, it is- our opinion that the judgment of the lower court should be, and it is hereby, affirmed.

Judgment affirmed.

Washburn and Doyle, JJ., concur.


author: Carpenter, J.

text:
    The Norwalk Truck Line Co., Appellee, v. The Wheeling & Lake Erie Ry. Co., Appellant.
    (No. 428
    Decided November 5, 1945.)

      Mr. Alexander L. Hyser, for appellee.

      Messrs. Young <£ Young, for appellant.
   Carpenter, J.

About 2:45 a. m., on September 9,1943, a truck outfit of plaintiff, The Norwalk Truck Line Company, consisting of a tractor and large enclosed semi-trailer loaded with a cargo for Detroit, was being driven for that company west on State street through Fremont. At the grade crossing of the defendant, The Wheeling & Lake Erie Railway Company, which is a few yards west of the bridge over the Sandusky river, the locomotive of a southbound train collided with the rear half of the trailer and damaged it and its cargo.

In this action for damages, the verdict and judgment were for the plaintiff, from which this appeal was taken on questions of law. The only errors on which the defendant now relies are the overruling of its motions for a directed verdict, and for judgment notwithstanding the verdict, and errors in the charge to the jury in relation to the effect of the rules of the Public Utilities Commission of Ohio and the Interstate Commerce Commission which were in evidence.

The two tracks of the railroad approach the crossing along and near the west bank of the river. To a driver approaching the, crossing from the east, the view of the railroad is unobstructed for about 200 feet except by a gateman’s small to.wer near the east track on the defendant’s right of way and a coal dealer’s office which is about 26 feet wide and about 27 feet long and 61 feet from the east track and 60 feet north of the street. The bridge over the river is arched and from its center nearly to the crossing it is somewhat downgrade, but the evidence does not show what per cent or the length of decline.

At the crossing, gates were supposed to be operated 24 hours a day, but it is undisputed that they were not down1 when that train approached, although the evidence shows the gateman was there immediately after the collision. The truck driver had been driving this route every day for three years and was familiar with the locale, and knew the gates were operated at all times. He testified that he looked to the north as he approached on the bridge but did not see the train, but did see the gates were up and proceeded toward the crossing and when he had passed the tower and the tractor was at the first tracks he saw the headlight of the locomotive on the majn or westerly track and, as he could not stop, he increased his speed to get across. There was substantial evidence that no signal by bell or whistle was sounded by the locomotive.

That there was evidence of negligence on the part ' of the defendant is undisputed, but its contention is that the plaintiff’s driver was guilty of contributory negligence as a matter of law which barred its recovery. It relies upon the principle announced in D., T. & I. Rd. Co. v. Rohrs, 114 Ohio St., 493, 151 N. E., 714, to the effect that it was the driver’s duty to look where his looking would be effective and he can not be heard to say he looked and did not see when had he looked he must have seen. In that case, the element of crossing gates was not present.

The plaintiff relies upon Cleveland, C., C. & I. Ry. Co. v. Schneider, 45 Ohio St., 678, 17 N. E., 321, paragraph three of the syllabus. The court in Lohrey v. B. & O. Rd. Co., 131 Ohio St., 386, 3 N. E. (2d), 54, citing the Schneider case, recognizes that a driver “approaching a railroad crossing where safety gates are maintained is entitled to place some reliance upon the indication of safety which the upright gates imply.”

In that case the driver raced across after he saw the gates descending and because of that conduct recovery was denied to him, but the court cited the Schneider case and said in the syllabus that a driver on a highway “is entitled to place some reliance upon the indication of safety which the upright gates imply. ’ ’

From these decisions it would seem that the law of Ohio is well expressed in 44 American Jurisprudence, 818, Railroads, Section 564, where it says:

“By the weight of authority, however, while the fact that the gates are open is an implied invitation to cross, and an assurance of safety from the danger of any passing train, upon which a traveler may, to a certain extent, rely, this fact will not relieve him from the duty of exercising due care, although he is not required to exercise the same vigilance as he would be at a crossing where gates had not been erected and maintained. Whether the traveler exercised the care necessary under the circumstances is for the jury, unless the evidence conclusively shows that he rashly stepped in front of the moving train, or that if he had used his senses he would have avoided injury.”

Upon the evidence in this case, a jury question was presented whether the driver of the plaintiff’s truck was guilty of contributory negligence, and that issue was properly presented to the jury.

The rules of the Interstate Commerce Commission and of the Public Utilities Commission of Ohio defining the duties of drivers of carriers licensed by them, were placed in evidence and referring to them the court said in its charge to the jury:

“These rules apply to all crossings; they are not definite and specific, the violation of them is not negligence in and of itself, but you will consider them with all other evidence to determine whether or not the driver of this truck was exercising ordinary care in view of all the circumstances at that time.”

The defendant contends that this was. error, in that violation of such rules is negligence per se. The charge as given conforms to the rule announced in Matz v. Curtis Cartage Co., 132 Ohio St., 271, 7 N. E. (2d), 220, particularly, paragraph 10 of the syllabus:

“A violation of a safety regulation adopted by the Public Utilities Commission pursuant to authority conferred by Section 614-86, General Code, does not constitute negligence per se; but such a regulation is admissible in evidence as bearing on the question of the want of ordinary care.”

Finding no prejudicial error in the record, the judgment is affirmed.

Judgment affirmed,.

Stuart and Conn, JJ., concur.


author: By the Court.

text:
    The State, ex rel. Heck, Pros. Atty., v. Sucher.
    (No. 1881
    Decided January 9, 1946.)
    ■ Messrs. Landis, Ferguson, Bieser £ Greer, for relator.

      Messrs. Coolidge, Becker £ Wall, for respondent.
   By the Court.

This is an action in quo warranto. The summons issued in the case required the respondent to answer on the third Saturday after the return day rather than within thirty days after the return •day as required by Section 12315, General Code. The respondent filed a motion to quash the summons and the relator filed a motion for an order to amend the summons by correcting the date within which the respondent would be required to answer to conform to the statutory requirements.

Counsel for respondent contend that the summons cannot be amended but that if the court orders an amendment, the amended summons must be served upon the respondent and the respondent given thirty days after the return day of the amended summons within which to answer. Counsel rely on the following ■cases: Kerns v. Roberts, 2 Dec. Rep., 537, 3 W. L. M., 604, which held that a new summons must issue after a correction of a defective verification; State, ex rel. Pros. Atty., v. Robinson, 9 Dec. Rep., 249, 11 W. L. B., 294, which was an action in quo warranto in which the court held that the summons could not be amended to correct a defect similar to that which exists in the case at bar, and that the summons should be quashed (in that case the court, observed that the respondent did not enter appearance; in the case at bar the respondent did not enter his appearance); Williams v. Hamlin, 12 Dec. Rep., 46, 1 H., 95, in which it was held that a summons may be amended but if there is no appearance entered by the defendant the amended summons must be served; also White & Co. v. Freese, 13 Dec. Rep., 749, 2 C. S. C. R., 30, in which it was held that a summons served on a petition which had not been sworn to was invalid, and that after the petition was properly sworn to, a new summons should issue.

If the principle of law laid down in the above mentioned cases were to he applied by this court, an amendment may be ordered but the amended summons would be required to be served. This court does not believe that this is the law in the state of Ohio. Section 11363, G-eneral Code, provides in part as follows:

“Before or after judgment, in furtherance of justice and on such terms as it deems proper, the court may amend any pleading, process, or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party or a mistake in any other respect, or by inserting other allegations material to the case, or, when the amendment does not substantially change the claim or defense, by conforming the pleading or proceeding 'to the facts proved.” (Italics ours.)

In the case of Irwin v. Bank of Bellefontaine, 6 Ohio St., 81, it was held that an appeal bond may be amended under the provisions of Swan’s Rev. Stat. 641, which contained substantially the same provisions as Section 11363, General Code. The court on page 89 says:

“It is claimed that it is so defective, and the mistakes therein so gross, that no amendment can be allowed; that, as the instrument is not a bond, there is nothing to amend by.

“If this position be correct, an instrument in accordance with the statute, by omitting, by accident, a scrawl seal to the signatures, would be too defective for correction, it not being a bond. This is too narrow a construction of the power to amend. The code authorizes an amendment when the mistake goes to the substance of the pleadings or proceedings. It further authorizes an amendment of a mistake in any respect. Broader and more efficient language could hardly have been used to vest this poiver. The only limit seems to be to cases ivhere an amendment would not be in furtherance of justice.” (Italics ours.)

See, also, Doty v. J. D. Rigour & Co., 9 Ohio St., 519.

In the case of Burton v. Buckeye Ins. Co., 26 Ohio St., 467, the summons contained the name' of another insurance company but the defendant was actually served. The court permitted the summons to be amended to conform to the facts and did not require the amended summons to be served on the defendant. The court in applying Section 137 of the Code of Civil Procedure,which authorized an amendment of “any pleading, process, or proceeding, ’ ’ on page 470 says:

“That this section of the code is broad enough to cover and authorize the amendment, can not well be disputed. The ground assumed is, that although the amendment reaches hade and validates the writ ah initio, so far as regards the remedy, effect can not be given to it to invalidate the contract, or cause of action. This is true.” (Italics ours.)

In Wechsler v. Shelander, 14 Ohio Supp., 58, the court corrected service by publication and held that the service was complete and effectual after the amendment by the provisions of Section 11363, General Code.

This court is of . the opinion that in furtherance o'f justice this court may order the summons to be amended without requiring the amended summons to be served on the respondent. Section 11363, General Code, was enacted for the purpose of expediting the administration of justice and the prevention of delays in bringing matters to an issue and authorizes the court-to make such amendments as are required for the purpose of correcting mistakes so long as the parties to the case are not prejudiced thereby. In the opinion of this court, the respondent in this case will not be prejudiced by the amendment of the summons. This principle of law is supported by the great weight of authority as shown by a collection of cases to be found in the footnote in Ann. Cas., 1913A, 556. The court will not commónt on any of the authorities cited therein.

The motion to amend being sustained, the motion to quash will be overruled. Counsel may draw one entry covering both motions. The respondent is given ten days to file an answer after journalization of the entry.

Judgment accordingly.

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


author: Matthews, J.

text:
    City of Cincinnati, Appellant, v. Wright, Appellee.
    (No. 6546
    Decided October 15, 1945.)

      Mr. J ok D. Ellis, city solicitor, and Mr. Robert J. Paul, for appellant.

      Mr. Clifford E. Adams, for appellee.'
   Matthews, J.

The appellee was convicted of violating a municipal ordinance requiring operators of motor vehicles to yield the right of way to pedestrians lawfully crossing the roadway within crosswalks. (Section 74-75 of the Code of Ordinances of the city of Cincinnati.) The penalty for such violation was a fine of not more than $50 for a first offense. (Section 74-140, Code of Ordinances.) By another section of the same ordinance it was provided that upon conviction the court might “in addition to and independent of all ' other penalties provided in this chapter, prohibit such person from operating or driving a motor vehicle for a period of not to exceed one (1) year.” (Section 74-142 of the Code of Ordinances.)

The appellee, was fined $25 and prohibited from operating an automobile for'30 days.

At the trial the appellee demanded that he be accorded a trial by jury. That demand was refused.

The appellee appealed from his conviction to the Common Pleas Court which reversed the judgment and remanded the cause to the Municipal Court for further proceedings. The city - of Cincinnati appealed from that judgment of reversal to this court.

The sole question presented is whether the Municipal Court erred in refusing the demand for a trial by jury.

As the use of the public highways has relation to the public safety, that ground alone is sufficient to bring their use within the regulatory power of the state in the exercise of its police power; and the granting of licenses to competent operators of motor vehicles and the withholding of licenses from incompetents, and the suspension or revocation of those granted to such as are thereafter found to be incompetent is a well recognized method of the exercise of such regulatory power. This power is stated in 5 American Jurisprudence, 591, as follows:

“The right to operate motor vehicles in public places is not a natural and unrestrained right, but a privilege subject to reasonable regulations in the interest of tbe public under tbe police power of tbe state. Tbe police power has been exercised in many states by requiring chauffeurs and other operators of motor vehicles to obtain a license as a condition precedent to such operation. ’ ’

And, at page 593:

“The statutes regulating the granting of operators’ licenses or drivers’ permits usually provide for their revocation. It is competent for the Legislature to prescribe the conditions under which the privilege of operating an automobile on the public highways may be exercised.”

This regulatory power, like all other phases of the police power, is legislative and administrative, and when properly exercised presents no occasion for the exercise of the judicial power. It is said in 33 American Jurisprudence, 391, that:

“The offense of violating a legislative enactment by engaging in a business without a license is not one as to which there is a constitutional right fo trial by jury. Accordingly, the Legislature may confer on justices of the peace final jurisdiction to hear and determine, without a jury, prosecutions for conducting a business without a license. It is also to be observed that the Legislature may delegate to an administrative board or official the right to revoke a license. ’ ’-

Permits may be granted, withheld or revoked, and valuable property destroyed by administrative officers, and it is only when this great power is abused that constitutional guaranties are violated and recourse to the courts is permitted for redress of the injury. We quote from 12 American Jurisprudence, 325:

“A hearing of a judicial nature is not essential where the state is engaged in the exercise of the police power, * * #. Judicial proceedings are not necessary to the revocation of a license to practice medicine or the license of an architect.”

That this power exists in Ohio and is' exercised through administrative officers is not challenged. The instances of its exercise are too numerous to justify specification. 8 Ohio Jurisprudence, 306 et seq.

It was in the' exercise of this power that the General Assembly enacted Section 6296r18&, General Code, which authorizes the registrar of motor vehicles, whenever he has good cause to believe that a licensed operator is incompetent or otherwise not qualified to be licensed to require him, upon five days’ notice, to submit to an examination, and, if upon such examination he is found to be incompetent, the registrar may suspend or revoke the license. From that .order, an appeal to the courts is provided, but no provision for trial by jury before the registrar or the court is made; and the courts are expressly prohibited by Section 6296-34, General Code, from interfering with the registrar in any way other than as provided by the statutes.

It is clear, therefore, that where the sole issue is whether a license should be granted, revoked or suspended, there is no right to have that issue submitted to a jury.

Now, has a right to trial by jury been conferred when the suspension of the license, is made by a court upon conviction of a violation of a law or ordinance relating to reckless driving, when the right to trial by jury of the offense charged does not exist?

Authority is conferred by Section 6296-30, General Code, upon all courts of record having jurisdiction to hear and determine charges of operating a motor vehicle in violation of laws or ordinances relating to reckless operation, and’upon conviction, ‘fin addition to or independent of, all other penalties provided by law,” to suspend or revoke the license of the convicted person. Nothing is said in that section about trial by jury. The only place where it is mentioned is in Section 6296-16, General Code. That section, so far as pertinent here, confers county-wide jurisdiction upon all courts of record to hear and determine cases arising under the provisions of the driver’s license }aw, and as to the form of the prosecution provides that: “Such actions shall be commenced by the filing of an affidavit and the right of trial by jury as provided by latv shall be preserved, but indictments shall not be required in misdemeanor cases arising hereunder.”

It should be observed here that the appellee was not charged with a violation of any provision of the driver’s license law, or any state law, for that matter. Ho was charged with violating a municipal ordinance which would seem to make inapplicable that provision of Section 6296-16, General Code.

But assuming that the prosecution is of the kind mentioned in the section, we must still inquire whether it entitles the appellee to a trial in this case where the maximum punishment was $50.

Section 6296-16, General Code, does not create or bestow a right to trial by jury. All it does is to preserve such right as then existed. We must look elsewhere to find the cases in which such right existed at that time. And we look in vain for any constitutional or statutory provision conferring the right to trial by jury where the sole issue is the revocation of a license. We do find that by Section 13443, General Code, the right of trial by jury exists in all cases for the violation of statutes and ordinances “except in cases where the penalty involved does not exceed a fine of fifty dollars.”

It is argued that because the ordinance authorizes the court, upon conviction, to suspend or revoke the license, the penalty exceeds $50 and brings the case within the class in which the accused is entitled to a trial by jury. That conclusion can be reached only by causing Section 6296-16, G-eneral Code, to create a right to trial by jury where the right did not exist theretofore, whereas its expressed purpose was not to create but only to preserve the existing right.. The word “preserved” as used in the Seventh Amendment to the United States Constitution has uniformly been construed not to create a right to trial by jury, where it had not theretofore existed, but simply to continue the right in such cases and in such manner as existed at common law. And notwithstanding the positive language of Section 2 of Article III of the United States Constitution that “The trial of all crimes, except in cases of impeachment, shall be by jury,” the section has always been construed to preserve trial by jury in those cases, and only those cases in which there was the right to trial by jury at common law, and, therefore, notwithstanding Section 2 of Article III there was no right to trial by jury in the federal courts for a petty offense because there was no right to trial by jury in such cases at common law. United States v. Moreland, 258 U. S., 433, 66 L. Ed, 700, 42 S. Ct., 368; District of Columbia v. Clawans, 300 U. S., 617, 81 L. Ed., 843, 57 S. Ct., 660.

Webster defines preserve as meaning “to maintain; to guard; to keep in existence or intact. ’ ’ In none of its uses does it connote creating something or extending an existing thing or status.

Rut it is argued that because the statute and ordinance in conferring this power upon the court used the language “in addition to, or independent of, all other penalties” that constitutes a definition of the revocation of a license as a punishment for the offense. We think it clear that the language used refers to the fine or imprisonment or both imposed by the law defining the crime,.and does not in any way characterize the revocation of the license as a part of the punishment. It was not necessary to refer to it in general terms, because it was specifically described in the sentence. “Other penalties” as used distinguishes the license revocation from the punishment. It does not express identity or similitude. And the statute and ordinance both disassociate it from the punishment by the provision that it shall .be considered independent of all other penalties, that is, not dependent, not contingent or conditioned, having a separate status.

The use of the word ‘‘penalties” cannot control the context so as to make the revocation or suspension of the license a part of the punishment. It is not a term whose meaning is confined to punishment for crime. It has a broader meaning. In the law of contracts it is used as contra-distinguished from liquidated damages. It is also used to indicate the sum to be forfeited upon breach of a bond. And in common parlance it expresses any disadvantage resulting from an act.

Under the Ohio Constitution, the General Assembly has power to provide for prosecution for crime without the intervention of a jury in all cases except when imprisonment is made a part of the punishment, which may be imposed. State v. Inwood, 42 Ohio St., 186. When the punishment is by fine only, the fact that imprisonment may be used as a means of enforcing the fine does not give the accused a constitutional right to a trial by jury. Id. As the ordinance violated by appellee makes no provision for imprisonment for such violation, it does not come within the class to which the constitutional right to a jury trial attaches. The suspension of his license is not imprisonment. Nor is it a part of the fine. In 15 American Jurisprudence, 182, it is said:

“Where the conviction of a person forfeits his right to carry on. the business in which he was engaged, such forfeiture is not to be considered as a fine.”

Nor are the costs of prosecution a part of the fine. Id. City of Xenia v. Smith, 34 Ohio Law Abs., 620, 39 N. E. (2d), 191. Appeal dismissed, 139 Ohio St., 169, 38 N. E. (2d), 392.

Of course, the General Assembly may provide for trial by jury beyond the constitutional requirement, and it has done that by Section 13443, General Code, but, in our opinion, the case at .bar does not present facts entitling trial by jury as therein provided.

In Commonwealth v. Burnett, 274 Ky., 231, 118 S. W. (2d), 558, a question somewhat similar to that in this case was presented and the court held, as stated in the third paragraph of the syllabus, that:

“A magistrate is not deprived of jurisdiction to try a defendant on a charge of operating a motor vehicle while intoxicated by fact that the defendant’s license may be revoked by the circuit court on recommendation of the magistrate in addition to the imposition of a fine not .exceeding- $500 and confinement not exceeding 6 months, notwithstanding that a magistrate’s jurisdiction is limited to cases in which the punishment shall not exceed a $500 fine or imprisonment not exceeding 12 months, or both, since revocation of the license is not an ‘additional punishment,’ but is a measure of ‘preventive justice’ designed for protection of-the public * * *.”

And in Commonwealth v. Harris, 278 Ky., 218, 128 S. W. (2d), 579, the court reaffirmed its holding, stating in the fourth paragraph of the syllabus that:

“Suspension of driving license of one convicted of operating- automobile while intoxicated is not part of penalty for such offense, nor penalty in addition to judgment of conviction, but merely forfeiture of conditional temporary permit for licensee’s failure to observe conditions under which license was issued # * # > J

For these reasons, the judgment of the Court of Common Pleas is reversed, and that of the Municipal Court of Cincinnati, is affirmed.

Judgment reversed.

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


text:
    In re Estate of MacFadon: O’Brien, Appellant, v. Kuhnheim, Appellee.
    (No. 3744
    Decided January 23, 1945.)

      Mr. Ray W. Poppleton and Messrs. Tussing & Lane, for appellant.

      Miss Fritsie Kessler and Mr. B. B. Bridge, for appellee.
   Geiger, J.

This matter is before this court on an appeal from an order of the Probate Court appointing an administrator of the decedent’s estate. It presents a number of. novel matters which are strenuously urged by counsel for appellant. We will be unable within the proper limits of an opinion to detail. all the objections and our conclusions in reference thereto.

As briefly as we may state them, the facts are that Marian Roberta MacFadon, the wife of Henry J. MacFadon, died on December 16,1943, intestate, a resident of Franklin county. On March 10, 1944, an application for “no administration” was filed by Robert 0 ’Brien, the father of the decedent, in the' Probate Court of Franklin county. The application for this adjudication by the court described the only assets of the decedent’s estate as certain personal property of a total value of $425, and further stated that the applicant, Robert O’Brien, had advanced funds for nursing, hospital, doctors and funeral expenses which totaled over $1,000. Consent for the relief prayed for was filed by Henry J. MacFadon,- the husband of the decedent. On March 10, 1944, the Probate Court made an order upon the application, wherein the court found that the estate of the decedent was less ‘than $500, and that the creditors would not be prejudiced by the order, and it was ordered that the estate be relieved from administration, and that the assets be distributed to Robert O’Brien in payment of the hospital and nursing bills of his daughter.

On May 1, 1944, a new term of "the Probate Court started. Thereafter, on May 10, the appellee, Harris C. Kuhnheim, filed an application for the appointment of an administrator of the decedent’s estate, and a citation was issued to the appellant directing him to take or renounce administration of decedent’s estate. Appellant moved for a dismissal of the application of the appellee on the specific grounds that no notice of the filing of the application or the citation had been issued to or served upon Henry J. MacFadon, surviving ’spouse of the decedent, who was a resident of Franklin county; and, second, that the granting of the application would constitute a voiding and vacating of the former order of the court made March 10, 1944, wherein the court had ordered that the estate was to be relieved from administration. The question of whether the surviving spouse was served with the citation gave rise to considerable testimony. The surviving spouse was a soldier, and soon after the death of his wife, the decedent in this case, he left for camp in Texas and continued in the armed forces. The service of citation was made at the residence of appellant, 1872 Stanford road. The appellant, the father of the deceased wife, appeared and strenuously resisted the appointment of the administrator. A large part of the bill of exceptions relates to the question whether the surviving spouse resided at the place where the service of citation was made upon him. O’Brien, the father-in-law of the soldier, gave testimony to. the effect that the soldier, as a matter of fact, did not live at his, O’Brien’s, residence, and that the soldier had left that place shortly after the death of his wife, the daughter of the appellant. The case was continued at least twice in order to perfect the service of the citation upon the surviving spouse, it being claimed that no administrator could be appointed until he had been served with citation to appear to accept or renounce the appointment as administrator.

Several witnesses' were examined, and the court, itpon consideration of the- evidence of these witnesses, determined that the service was properly made at the place shown in the return of the sheriff, and that so far as the citation was concerned the administrator might he appointed. In this we concur.

The point is stressed that due to the fact that, at a preceding term, the court had declared that the estate need not be administered, the assets being less than $500 and being properly distributed to the father on preferred claims for nursing, no administration could be had because the same would be. in direct conflict with the order of the court declaring it was unnecessary to administer the estate. It was. claimed that before an administrator could be appointed it would be necessary for the applicant to seek and secure the vacation of the order of the Probate Court made at the prior term. The court held that the fact there had been, upon the application of the father of the decedent, a finding that no administration was necessary, would not preclude the creditor of his right to secure the appointment of an administrator to whom he might present for acceptance or rejection his claim against the decedent’s estate. This claim aróse from the fact that the decedent during her lifetime had in the operation of her automobile injured the claimant, and that on account of such personal injury he had a claim■ against the decedent’s estate. In addition to the objection that there was a prior order of the court still in force to the effect that no administration be required, it is claimed it was apparent that the appointment of an administrator would be useless in view of the fact that the decedent’s estate should be distributed properly to the father in payment of the preferred claim arising out of nursing and hospital expenses for bis daughter. However, it soon appeared and was admitted in argument in .this court that the daughter had an insurance policy upon her automobile and that if she was responsible for the personal injuries .to the applicant, the insurance company might be liable to pay any judgment secured against her estate within the limits of the policy.

We are in entire harmony with the court below in holding the declaration that there need be no administration of the estate would not preclude the appointment of an administrator on the application of a creditor.

We are of opinion that the two proceedings were independent, and that it was not necessary for the applicant seeking the appointment of an administrator to first secure the vacation of the judgment of the court made at a prior term, declaring it unnecessary to have an administrator of the estate. The creditor had no right to intervene or to bring a proceeding to set aside the judgment of the court declaring it unnecessary to administer. His rights began when he made an application as a creditor and if he could support his claim that he was a creditor he had a right to the appointment of an administrator. We are in harmony with this view taken by the Probate- Court.

While the appellant strenuously contested the right of the creditor to secure the appointment for the two reasons noted, when the court found that the creditor had a right to the appointment of an administrator, the appellant, the father of the decedent, then sought and secured the appointment, reserving the right to appeal from the judgment of the court holding that an administrator should be appointed. This was rather an unusual proceeding, it appearing that the appellant availed himself of the judgment of the court that an administrator should be appointed by-securing that appointment for himself and thereupon filed an appeal to this court asking that the judgment of the court, which was the foundation of his own appointment, be reversed.

in this court the appellant, Robert O’Brien, asserts six specific errors:

(1) That the court erred in granting the application of the creditor for the appointment of an administrator.

(2) That it .erred in overruling the motion of the appellant to, quash the service of summons upon Henry J. MacFadon, the surviving spouse.

(3) That it erred in overruling the motions of the appellant to dismiss the application of the creditor for the appointment of an administrator.'

(4) Erred in its finding as set out in the entry of May 26, 1944. . ■

(5) That it erred in overruling motions for a new trial.

(6) For other errors.

While there are six assignments of error, there are two that are relied upon most strongly — that the court below could not appoint an administrator while a prior order of the court remained in effect relieving the estate from administration, and, further, that the court could not appoint an administrator without a citation duly served upon the surviving spouse to take or renounce the administration.

We have already passed upon these matters and find no merit in the other assignments of error.

There are references made to a decision of the Court of Appeals of Cuyahoga county in which it is claimed the court refused to appoint an administrator because there had been a prior finding of the court that the estate need not be administered. It is stated that after the affirmance of the order of the Probate Court application to review the case in the Supreme Court was denied and it is argued that the Supreme -Court thereby has put its approval upon the decision of that court. Our examination discloses the fact that the Supreme Court did not pass on the question'at issue, but simply refused to allow the case to be certified on the ground that it presented no disputed constitutional question. We do not have before us the decision of the Court of Appeals and we do not feel that we are bound by the statement of counsel as to the issue there made and decided. We further state that if as a matter of fact the Court of Appeals of Cuyahoga county decided this matter in the way claimed by counsel, we will not follow that decision or be controlled by it.

The judgment of the Probate Court is affirmed.

Judgment affirmed.

Hornbeck and Sherick, JJ., concur.

Sherick, J., of the Fifth Appellate District, sitting by designation in the Second Appellate District.