author: Per Curiam.

text:
    Burnett et al., Appellants, v. Kidston et al., Directors of Mahoning Valley Sanitary Dist., et al., Appellees.
    (No. 3431
    Decided May 3, 1951.)

      Mr. William B. Bpagnola and Mr. James E. Mitchell, for appellants.

      Mr. W. P. Barnum and Mr. William A. Ambrose, prosecuting attorney, for appellees.
   Per Curiam.

In this opinion the plaintiffs will be called plaintiffs, the Mahoning Valley Sanitary District will be called the district, and its directors, defendant directors. Defendant Rayburn is auditor of Mahoning county, and will be called auditor.

Plaintiffs appealed to this court on questions of law and fact from a judgment of the Court of Common Pleas entered upon a finding of a judge thereof in plaintiffs’ action instituted in that court on July 7, 1950, to declare unlawful and enjoin the certification and collection of a special assessment levied for the year 1950 by defendant directors upon all real property situated in the city of Youngstown, which assessment was for the benefit of the district.

Plaintiffs are owners of real property situated within the corporate limits of the city of Youngstown and payers of tax thereon.

Defendant directors are directors of the district, a political subdivision of the state of Ohio organized in 1928 and existing under the provisions of Sections 6602-34-to 6602-106, inclusive, General Code, to supply water for domestic, municipal and public use within the municipal corporations of Niles, Trumbull county, and Youngstown, Mahoning county, which cities comprise such distript.

The construction cost of the district, which is situated in Mahoning and Trumbull counties, was financed by the sale of serial bonds maturing over a period of years, the last of which will mature in 1954. Principal and interest payments on such bonds are paid from the proceeds of annual tax levies made since 1928 upon real property situated in the cities of Youngstown and Niles in the respective proportions of 90.55 per cent and 9.45 per cent, the proceeds of which are remitted to the district periodically by defendant auditor and the auditor of Trumbull county.

In accordance with the provisions of Section 6602-78, General Code, the directors fix the annual levies at 10 per cent in excess of the amount needed for redemption of and payment of interest due on such bonds.

On. May 18, 1950, the directors initiated proceedings to levy $524,729.72 upon owners of real property situated in Youngstown to pay bond retirement and interest thereon for the year 1951.

Defendant directors’ annual report to the court of jurisdiction revealed an unexpended cash balance in the district’s bond retirement and interest fund of $1,753,643.23, which resulted from the 10 per cent levies to which reference is made above, and which is in excess of the amount required to pay maturing bonds and interest due thereon in full.

Plaintiffs contend that upon the facts stated defendant directors are without authority to levy the assessment in the sum of $524,729.72, or to use the sum of $1,753,643.23 for any purpose other than retirement of bonds and payment of interest due thereon ; that to use it for any other purpose would be unconstitutional and would violate Section 2, Article 12 of the Constitution, and the statutes governing such district; and that never having used such fund for the stated purpose they cannot use it for that or any purpose other than retirement of such bonds and interest due thereon.

Previous to this litigation the directors by resolution determined to permit such 10 per cent fund to accumulate until sufficient to retire such outstanding bonds and interest charges thereon.

Defendants contend, inter alia, that the sum of $1,-753,643.23 was accumulated and earmarked for the purpose of making district improvements and construction of new facilities as set forth in a contingent court approved amendment to the district’s official plan as to the need and benefit thereof, which has not yet been determined; that the levy made for the year 1951 will be required to meet bond retirement and pay interest thereon during that year; and that such levies will be necessary in the years to come for the reason that in the future defendant directors intend to earmark such excess fund then accumulated to enlarge the district.

Defendants contend further that such excess fund is a surplus fund and base their right to pursue such policy upon the following provision of Section 6602-89, General Code, “for retiring bonds, reducing the rate of assessment or for accomplishing any other of the legitimate objects of the district”; and that such fund becomes an excess fund ’ by reason of the fact that it is an accumulation in excess of the amount needed to retire the bonds and pay interest thereon as they become due.

Defendants contend also that “the legal question involved is an interpretation of subsection 89 (6602)” (Section 6602-89, General Code), which reads as follows :

“Any surplus funds in the treasury of the district may be used for retiring bonds, reducing the rate of assessment or for accomplishing any other of the legitimate objects of the district.” (Emphasis ours.)

Defendant argues that it “is evidence that the Sanitary District Act contemplates a surplus over and above what is needed to pay for the bonds.”

The evidence discloses that the cost of execution of the adopted amendment to the official plan of the district for an auxiliary supply of water from Berlin Reservoir and deferred construction would . largely exceed the present amount in the 10 per cent fund, and that which will accumulate in the future in such fund; that appropriations have been filed for replacement, improvement, repairs and construction in the Meander creek plant, and it is around such that the litigation between the parties revolves. The balance of construction for the Meander creek plant is catalogued as deferred construction, and is a second stage not contemplated now.

The evidence discloses further that the directors propose to pay presently needed construction costs from the district’s bond retirement and interest fund, to which reference has been made, in installments commencing September 1951 and during the succeeding three or four years.

Section 6602-78, General Code, provides:

“* * * the board of directors shall pass and spread upon their records a bonding resolution in which shall be stated the amount of the assessment, and the amount thereof paid as aforesaid, and thereupon the board shall in the same resolution apportion the uncollected assessment into installments or levies, provide for the collection of interest upon the unpaid installments, and they may order the issuance of bonds (in an amount not exceeding ninety per cent of the levy) in anticipation of the collection of said installments. The residue of the tax so levied (not less than ten per cent) shall constitute a contingent account to protect the bonds from casual default, and any part thereof in excess of ten percent of the next installment of maturing bond principal, together with the next two installments of semi-annual interest, if not needed for this purpose, may be transferred from time to time to the maintenance fund of the district. ’ ’

There has never been a default in the collection of such levies.

Section 6602-82 provides in part:

“The board of directors shall each year thereafter determine, order and levy the part of the total assessments levied under this act, which shall become due and be collected during each year at the same time that state and county taxes are due and collected * * *. In the event of any failure or neglect of the board of directors of the district to determine and order an annual levy for the purpose of paying the interest and principal of any bonds pursuant to this act, it shall be the duty of the auditor of the county in which the lands subject to such assessments are situated, to make and complete a levy of the taxes or special assessments necessary for the said purpose against the lands in the said district * * *.”

These sections of the General Code indicate the mandatory duty imposed upon defendant directors or auditor to determine the amount of and make such levy, the performance of which this court cannot enjoin.

In deciding the equities of the case we are mindful of the claim that it would be inequitable to levy an additional tax for the payment of the outstanding bonds when there is sufficient money in the surplus fund to retire such bonds and pay the interest due thereon in full. However, equity must follow the law.

The sections of the General Code providing for the establishing of sanitary districts and governing the issuance of bonds for the purpose indicated and the manner of levying taxes for the payment thereof are definite.

The General Code specifically authorizes the application of the fund arising from the excess levy of 10 per cent to be transferred from time to time to the maintenance fund of the district to be used for “any other of the legitimate objects of the district.” Therefore it is apparent that the remedy of the plaintiffs lies with the Legislature; and the acts referred to being constitutional, it is the duty of this court to follow such legislative enactments as they exist now.

Obviously the decree of this court is for the defendants.

Decree for defendants.

Nichols, Phillips and Hurd, JJ., concur.

Hurd, J., of the Eighth Appellate District, sitting by designation in the Seventh Appellate District.


source: Caselaw Access Project

author: Hurd, J.

license: Public Domain

text:
    Hebert, Appellee, v. New York Central Rd. Co., Appellant.
    (No. 4608
    Decided December 14, 1951.)

      Mr. John J. Barone and Mr. George R. Effler, for appellant.

      Messrs. Doyle, Lewis & Warner, for appellee.
   Hurd, J.

For the purposes of brevity and clarity, the parties will hereinafter be designated as plaintiff and defendant, as they appeared in the trial court.

This is an appeal on questions of law from a final order of the Court of Common Pleas of Lucas County, in which complaint is made by the plaintiff that the trial court committed an abuse of discretion by vacating and setting aside a prior final order overruling a motion of the defendant for a new trial and by reentering the same ruling as to such motion at a subsequent date for the sole purpose of extending the time provided by law for the filing of a bill of exceptions in an appeal of such cause to this court.

There is before us also a motion to dismiss the appeal of defendant from the judgment originally entered and a motion to strike the bill of exceptions from the files. A determination of the primary issue will be decisive of the disposition of these motions.

To' understand and determine the questions presented, it is necessary to state chronologically the proceedings disclosed by the record and to state in condensed form the facts developed upon the hearing, wherein the court vacated the prior final order overruling the motion for a new trial and re-entered the same as of a later date.

On June 13, 1949, the plaintiff as administrator of the estate of her deceased husband, Peter J. Hebert, Sr., filed her petition in the Common Pleas Court of Lucas County against the defendant for her own benefit as Hebert’s widow and for the benefit of his two children, Peter J. Hebert, Jr., aged 11 years, and Donald Hebert, aged nine years, praying for damages for the wrongful death of decedent, proximately caused by the alleged negligence of the defendant.

The issues having been made up, the case came on for trial June 14, 1951. The jury returned a special verdict for the plaintiff and the two sons of the decedent, the court, by entry, reserving the case for future consideration, immediately following the verdict of the jury. On J une 27,1951, the motion of the defendant for judgment non obstante veredicto was overruled and a motion of the plaintiff for judgment on the special verdict was sustained and such judgment was entered on the journal of the court in favor of the plaintiff. On July 6, the motion of the defendant for a new trial was filed. On July 12, 1951, the motion of the defendant for an order vacating and setting aside the verdict of the jury and the judgment rendered thereon, and for a new trial, was overruled, to which the defendant duly excepted.

On July 31, 1951, notice of appeal of defendant and precipe were filed. Thereupon, the pleadings and papers, together with a certified transcript of the docket and journal entry and all original papers were transmitted to the Court of Appeals, case No. 4595.

On September 6, 1951, defendant filed a motion to vacate the order overruling the motion for a new trial and for rehearing. On September 7, 1951, the motion of the defendant to vacate and set aside the order of the court theretofore entered on July 12,1951, overruling the motion of defendant for a new trial was granted and the entry of July 12, 1951, was ordered vacated, to all of which the plaintiff excepted.

On the same day, September 7, 1951, the court reentered its order of July 12, 1951, overruling the motion of defendant for a new trial over the objections of plaintiff.

Now the record shows that the defendant’s bill of exceptions for the purpose of demonstrating alleged errors on appeal was required to be filed in the trial court within 40 days from July 12,1951, or, specifically, not later than August 22, 1951. No such bill of exceptions was filed within that period of time and it is conceded by counsel and the record shows conclusively that the sole purpose of vacating the final order ofi July 12, 1951, and re-entering the same as of September 7, 1951, was to extend the time provided by law for the filing of a bill of exceptions in an appeal of the cause on questions of law to this court.

Upon the hearing on September 7, 1951, on defendant’s motion of September 6, 1951, to vacate the final order of July 12, overruling the motion for new trial and for rehearing, evidence was presented in the form of a professional statement made by one of counsel for defendant and the testimony of the official court reporter of Common Pleas Court who reported the trial.

From this evidence it appears that counsel of record for defendant was a firm composed of nine lawyers, and that the law firm employes a docket clerk whose duty it is to keep a record of the dates on which various papers are filed in all cases in the office and who records these dates from the Legal News or other information given her. It appears further that a bill of exceptions had been ordered and was delivered to the office of counsel, together with the reporter’s bill for preparing the same on July 13,1951, one day after the journal entry was filed overruling the motion for a new trial. Thus it appears that counsel for defendant had the bill of exceptions in their hands for a period of 39 days before the expiration of the time for filing the bill of exceptions in the trial court.

The reason assigned by the individual attorney, who conducted the trial of the case with the assistance of the claim agent of defendant, for the failure to file the bill of exceptions within 40 days from the final order as required by Section 11564, G-eneral Code, was that he was intermittently ill with a stomach complaint, and that he was overloaded with a volume of work, having been placed in charge of other legal matters of considerable importance, such as a “rather rugged labor situation” of a client at Bowling Creen, Ohio — a case involving another client, the Baltimore & Ohio Railroad in litigation with the City of Toledo the case of Save-Way, Inc., v. New York Central Rd. Co., ante, 367, 105 N. E. (2d), 431, and “all the other current things that came along.”

Counsel’s statement also indicates that he was in his office and actively engaged in the practice of law from June 27, 1951, to July 26, 1951. He was absent from his office the three days of July 27th, 28th and 29th; he was back at his office July 30th and left for Canada at 3 p. m. of that day. He returned to his office on August 9th, and was then absent for about six days and returned to his office on August 15th, 16th and 17th. Thereafter he was absent until August 23rd, on which day he returned, which was one day after the bill of exceptions should have been filed.

The single question presented is whether the trial court committed an abuse of discretion when on September 6, 1951, the court vacated the final order of July 12, 1951, and immediately re-entered the same as of said subsequent date for the sole purpose of extending the time provided by law for filing a bill of exceptions on appeal.

This is not a matter of first impression in Ohio, or in other states with comparable statutory requirements. This question has been settled in Ohio by the cases of Sullivan v. Cloud, 62 Ohio App., 462, 24 N. E. (2d), 625; Schnitzler v. Lake Shore Coach Co., 69 Ohio App., 265, 41 N. E. (2d), 436; Cleveland Provision Co. v. Murphy (Court of Appeals for Mahoning County), 17 Ohio Law Abs., 392; Friedman v. Brown (Court of Appeals for Hamilton County), 35 Ohio App., 450, 172 N. E., 565; Parrett v. Parrett (Court of Appeals for Franklin County), 60 N. E. (2d), 736. The gist of these holdings is generally to the effect that a trial court may not arbitrarily vacate and then re-enter a judgment for the sole purpose of extending the time for appeal.

The great weight of authority in other jurisdictions is succinctly stated in an annotation contained in 149 A. L. R., 741, supplementing an annotation in 89 A. L. R., 941, as follows:

“As said in the previous annotation, it appears to be a well-established rule that a trial court may not permit, in any indirect manner, an extension of time for taking an appeal, particularly after the time for taking it has already elapsed, so as to evade an express statutory requirement that the appeal must be taken within a certain time.” (Citing many cases.)

The defendant claims that the trial court acted within the limits of sound discretion and relies upon the case of Tims v. Holland Furnace Co., 152 Ohio St., 469, 90 N. E. (2d), 376, decided January 11, 1950, considerably after the decisions in the cases above cited, wherein the Supreme Court held, as indicated in the first paragraph of the syllabus:

“1. To permit the preparation and timely filing of a bill of exceptions by a litigant who is without fault, the Court of Common Pleas, for good cause shown and in the exercise of sound discretion may vacate its judgment during the term in which it was rendered and before an appeal has been instituted, and, later, during the same term, may enter a new judgment, from the date of which latter judgment the period for perfecting an appeal will begin to run.”

This holding is the last word on the subject and binding upon this court. If the defendant can qualify within the reasonable limits of the rule of the Tims case, it would not be error on the part of the trial court in taking the action of which complaint is made.

In the Tims case, the litigant was without fault. Also, the action was taken before an appeal was instituted.

In that case it appears that the court on November 23, 1948, entered a final order of judgment for plaintiff and against defendant upon overruling a motion for a new trial by defendant and acceptance by plaintiff of a remittitur suggested by the court. On December 3,1948, counsel for defendant advised the court that the court reporter who took the testimony in the ease was ill and would be unable to prepare a transcript of the record and testimony within the statutory period for filing the same in the Court of Appeals and unless such time could be extended there was no practicable way of having prepared and filed such transcript. The court thereupon advised counsel that inasmuch as he had control of his orders during term he would vacate the entry of November 23 and that such entry would again be made as soon as the reporter had recovered from his illness and was able to prepare the transcript. Accordingly, the entry of November 23, was vacated on December 3rd, and a similar entry was made on December 23, 1948.

The recitation of the facts shows a clear distinction when compared with the facts of the instant case. In the Tims case the court reporter was under complete, although temporary, disability due to illness. Defendant’s counsel acted with commendable diligence in bringing this fact to the attention of the trial court so that the litigant represented by his counsel was without fault. In the instant case the contrary appears, as the reporter prepared and delivered the bill of exceptions to counsel for the litigant 39 days before it was required to be filed. A firm of nine lawyers employing a docket clerk cannot be said to be without fault, particularly where counsel handling the litigation gave preferential attention to other business of the office and who, even though suffering from intermittent illness, was working the greater part of the 40 days within which the bill of exceptions should have been filed. Nor do we consider it a valid excuse if one member of the firm is suffering from a temporary disability if the other eight members of jthe group permit such a situation to arise when any one of them or the docket clerk could have filed the bill of exceptions with the trial court within the time prescribed by law.

Another distinguishing feature in the Tims case is that counsel acted before an appeal had been taken, whereas in the case at bar, an appeal had been taken. But the basis of the decision of the Supreme Court was more fundamental, because the court emphasized the impossibility of the defendant in that case having a bill of exceptions prepared for filing within the statutory period, for at page 474 of 152 Ohio St. (page 379 of 90 N. E. [2d]), in the opinion, Zimmerman, J., speaking for a unanimous court, said:

“Because of the temporary disability of the reporter who had recorded the evidence at the trial, it was impossible to have prepared and filed, within the period prescribed by statute, a bill of exceptions containing the evidence. Recognizing the dilemma in which the defendant found itself, the Court of Common Pleas, during the same term in which the judgment against the defendant had been rendered, vacated such judgment and later entered a new one to afford the defendant the review which, if possible, should be preserved to it.” (Emphasis by Supreme Court.)

And, at page 476 of 152 Ohio St. (page 380 of 90 N. E. [2d]), Judge Zimmerman, apparently having in mind the series of cases hereinabove cited, said:

“We submit that a difference exists between arbitrarily re-entering a judgment for the sole purpose of extending the time for appeal and vacating a judgment for good cause, such as the one disclosed in the instant case, and entering judgment at a later time during the same term to save to a litigant, who is without fault, the privilege of appeal — a valuable and substantial remedy.” (Emphasis supplied.)

We do not think it necessary to labor this point to any further extent. For a more extended discussion of authorities see the case of Save-Way, Inc., v. New York Central Rd. Co., ante, 367, 105 N. E. (2d), 431, opinion by Thompson, J., decided contemporaneously herewith.

We hold, therefore, that the law of the Tims case is not applicable or decisive of the issue in this case and that the vacation of the final entry of July 12, 1951, was not for good cause, but that the court erred prejudicially in vacating the entry, which act constituted an abuse of sound discretion.

For the reasons stated, we hold that the entry of September 7, 1951, vacating the final entry of July 12, 1951, must be reversed and set aside, thus leaving the final order of July 12th in full force and effect.

It follows, therefore, that the motion of plaintiff to dismiss the appeal of defendant from the judgment originally entered must be granted and, inasmuch as defendant concedes that no demonstrated error can be shown in the absence of a bill of exceptions, the motion of plaintiff to strike the bill of exceptions from the files must be granted.

Judgments accordingly.

Skeel, P. J., and Thompson, J., concur.

Skeel, P. J., and Hurd and Thompson, JJ., of the Eighth Appellate District, sitting by designation in the Sixth Appellate District.


author: Hunsicker, P. J.

text:
    Conobre et al., Appellants and Cross-Appellees, v. Fritsch et al., Appellees and Cross-Appellants.
    (No. 4287
    Decided June 11, 1952.)

      Mr. John R. Quine, for appellants and cross-appellees.

      Mr. Merryl F. Sicherman, for appellees and cross-appellants.
   Hunsicker, P. J.

Appellants, George Conobre and Mary Conobre, herein called Conobre, own a tract of land bordering the south side of the Cuyahoga FallsMogadore road, a public highway in the city of Tallmadge, Summit county, Ohio. Eugene Fritsch and Tamar Fritsch, appellees and cross-appellants, herein called Fritsch, own a tract of land bordering the north side of the same public highway, directly across such highway from a portion of the Conobre land.

Beginning in the eastern portion of the Fritsch land is a stream of water which arises out of a tile buried in the ground about two feet below the surface. There is no indication as to the exact source of this water. In the testimony before this court it is most frequently called a spring.

This court, at the request of and by agreement of the parties, when accompanied by counsel and the parties herein, made an extensive view and examination of the premises in order to examine the location, terrain and general topography of these lands, the spring, and the stream of water which flows from such spring.

The stream of water first comes into visual existence on high ground in the eastern part of the Fritsch farm, and flows to lower ground across Fritsch’s land, principally through a 24-inch tile pipe, to a culvert. The water then flows under the.culvert, which crosses the Cuyahoga Fails-Mogadore road to the south side of such road, where, by means of similar pipe, the water is conducted part way across the land of Conobre. For many years this flow of water caused the land now owned by Conobre to be swampy.

Conobre purchased a part of his land in 1944, and the remainder in 1949. Fritsch purchased his land in 1950.

The stream of water in question herein has flowed in the general direction in which it now runs for a longer time than any of the witnesses can remember. Some of these witnesses, former owners of these lands, remember the flow of water substantially as it now exists since the year 1901. How many years prior to 1901 this same condition existed is hot known.

The Cuyahoga Falls-Mogadore road was relocated about 1925 or 1926, the culvert under the road was widened, and the flow of water changed to run along the south side of the road in a northerly direction into Kelsey ditch. This diversion of flow caused the land now owned by Conobre to become less swampy, and hence useful for pasture.

Conobre, being desirous of using this water to construct a public commercial swimming pool, opened his south bank at the point where the culvert crossed the road, thereby permitting the water to flow into this swimming pool through a similar 24-inch tile pipe. This pool is located about where the swamp previously existed.

After Conobre constructed his pool, Fritsch, upon whose land there was a small cattle pond, determined to build a larger pond. He removed some of the tile, constructed a dam, and stopped the flow of water. This resulted in a lowering of the level of the water in the Conobre swimming pool to a point where it could not be used. Fritsch also constructed an outlet in his pool that required cleaning, which, when it was removed for such purpose, caused the water in the Conobre pool to become muddy.

Conobre brought an action to enjoin Fritsch from obstructing, diverting or diminishing the flow of water to his swimming pool, claiming that the stream is a natural watercourse. Fritsch filed an answer in which he denied that the stream is a natural watercourse. By way of cross-petition Fritsch claimed the right to the exclusive use of the water in such stream, and prayed for a judgment declaring his right to the exclusive use of such water.

The Common Pleas Court, after a trial of the issues, rendered a judgment, which in its pertinent part is as follows:

‘ ‘ This cause came on to be heard upon the pleadings and evidence; upon consideration whereof the court finds that the issues between and among the parties have become moot.

“It is accordingly by the court ordered that the petition of the plaintiffs George Conobre and Mary Conobre, the intervening petition of the plaintiff the city of Tallmadge, and the cross-petition of the defendants, Eugene Fritsch and Tamara Fritsch, be, and they are hereby, dismissed, and that the temporary restraining order hereinbefore granted be, and the same hereby is, dissolved.”

An appeal by Conobre and a cross-appeal by Fritsch from such judgment are before this court, each on questions of law and fact.

Conobre and Fritsch, through their respective counsel, say to this court that Fritsch desires to and will, unless restrained, use all of the water from this stream to the exclusion of Conobre.

We have but one question under the facts of this case, which may be stated as follows: Is the stream which flows over the land of Fritsch, through the culvert and onto the land of Conobre, a natural watercourse ?

It should be repeated at the outset of our discussion that the actual source of the water in this stream has never been fully determined. The visible source is in the extreme eastern part of the Fritsch property, where a tile pipe is located beneath the surface of the ground. This spot is near an abandoned coal mine. One witness stated that a portion of the water also came into the stream from this coal mine. The evidence does not show what part or how much of this coal mine is located on the Fritsch lands. The flow of water is in large part conducted through the tile pipe, although a part also flows in a small channel.

Conobre insists that this is a natural watercourse, which, if permitted to flow in its usual course, would cross over his lands into Kelsey ditch. Fritsch insists that the stream is formed by a spring arising solely on his lands; and that, except for its tile pipe channel, it would flow northward at the western edge of his land, and hence into Kelsey ditch.

We are not dealing herein with the question of a subterranean stream, which is without any distinct, definite and known channel, and which oozes or bubbles out on the land of Conobre. See: Frazier v. Brown, 12 Ohio St., 294. Except for the tile in which it is encased, this water would flow openly. It is placed in tile pipe and covered with earth, in order that the land may be cultivated more efficiently.

The Supreme Court of Ohio in the case of East Bay Sporting Club v. Miller, 118 Ohio St., 360, 161 N. E., 12, defined a watercourse as “ a stream usually flowing in a particular direction in a definite channel having a bed, banks or sides and discharging into some other stream or body of water.” (Paragraph 3 of syllabus.)

If we admit, for the purposes of argument, that the water in this stream is a spring, which has its source on the lands of Fritsch, are we to assume from such fact that the right of Fritsch to the exclusive use of this water is thereby established?

It must be remembered that, within the memory of those best able to describe its flow, this stream has been running, encased in the tile pipe, in the direction which it now traverses, for more than fifty years.

Can such a spring and its consequent overflow into a channel, even though for a great part of its distance it is encased in tile pipe, create a natural watercourse, with the attendant rights of riparian owners?

Although we find no comparable situation in the reported cases in Ohio, there are cases in other jurisdictions which answer the question for us, some of which we detail herein.

Wadsworth v. Tillotson, 15 Conn., 366. A case where the overflow of the waters of a natural spring on the lands of the owner, which overflow passed over the land of the owner of the spring to the adjoining lands of another, was considered to be a natural watercourse.

Lord v. Meadville Water Co., 135 Pa., 122, 8 L. R. A., 202, 20 Am. St. Rep., 864, 19 A., 1007. A case where the defendant, a private corporation with power of eminent domain, purchased land on which was located a spring, and was held not to have, by such ownership, acquired the right to divert the water of such spring from its natural channel without making compensation therefor. The purchase of the land on which such spring was located gave the purchaser only the rights of a riparian owner.

Town of Purcellville v. Potts, 179 Va., 514, 19 S. E. (2d), 700, 141 A. L. R., 633. A situation similar to the case of Lord v. Meadville, supra. The court quoted with approval the following from Roberts v. Martin, 72 W. Va., 92, at p. 99, 77 S. E., 535: “Though the diversion of the water is made from a spring, yet it appears clearly that the spring is a source of the stream. ’ ’ One of the springs in question was situated on property owned by the town of Purcellville.

We have cited only a few of the cases with reference to this subject. A collation of cases dealing with the problem herein may be found in 55 A. L. R., 1501, and 109 A. L. R., 416.

The rule established in the vast majority of the reported cases is that the owner of land, upon which is located a spring, from which spring there flows a stream of water, has only the rights of a riparian owner in the spring and stream, where such stream, if allowed to follow its natural course without obstruction, would flow in a definite channel onto and across the land of an adjoining owner.- The spring in such case is a part of the stream, and, as such, they both constitute a natural watercourse.

An excellent analysis of the rights and obligations of owners of adjoining lands in respect to water passing from the lands of one owner to those of the other is found in the case of Frazier v. Brown, supra.

We therefore determine that the stream under discussion hereiif is a natural watercourse, and that the parties have only such rights as are given to riparian owners. An injunction may issue preventing Fritsch from diverting the water in such stream to his exclusive use.

A decree may be prepared by counsel in accord with the finding herein.

Judgment accordingly.

Doyle and Stevens, JJ., concur.


author: Thompson, J.

text:
    Englund, Appellee, v. Englund, Appellant.
    (No. 22376
    Decided February 18, 1952.)

      Messrs. Woodle & Wachtel and Mr. S. 8. Simms, for appellee.

      Messrs. Jewitt é Jeivitt, for appellant.
   Thompson, J.

This is an appeal on questions of law from an order of the Common Pleas Court of Cuyahoga County awarding temporary alimony to the plaintiff-wife in a divorce action brought against the defendant, appellant. Under date of October 9, 1951, the court awarded temporary alimony to plaintiff in the sum of $18 per week. The parties at the time of the motion for temporary alimony were and still are residing under the same roof. Various grounds of error are alleged as to the trial court’s action, but since the decision of the trial court in this case, the Supreme Court of Ohio has decided the case of McMahon v. McMahon, Sr. (1951), 156 Ohio St., 280, 102 N. E. (2d), 252, holding that an order for temporary alimony is provisional in its nature, subject to modification at any time and not a judgment or final order from which an appeal on questions of law may be taken. In view of that decision, the only ground of error able to be considered by this court is the fifth assignment of error that the order of the trial court constituted an abuse of discretion.

Counsel for appellant argued in this court that it was an abuse of discretion for the trial court to award any temporary alimony to plaintiff since the evidence showed that the parties were living under the same roof. Although this court believes that the fact that husband and wife continue to live under the same roof after a divorce petition has been filed should constitute one of the elements in the case to be given most careful consideration by the trial court, this circumstance should not' necessarily and ipso facto require a denial of temporary alimony to the wife. It is true that where temporary alimony is awarded to the wife under such circumstances, an incongruous and inconsistent situation may develop in view of possible con-donation by the parties and a return to cohabitation. On the other hand, the circumstances of each case should nonetheless be considered and, where the financial or other circumstances of the parties furnish practical reasons for the continuance of residence by husband and wife under the same roof, despite the pend-ency of a divorce action,' we feel that temporary alimony may be warranted.

The facts in the present case furnish explanation enough as to why the parties have continued to reside under the same roof. The husband and wife are joint owners of the dwelling house. There is no more reason for the wife to have to vacate and look for other quarters than for her husband to have to do so. On the basis of the two or three dollars per week which her husband had been voluntarily allowing to her, she could scarcely rent quarters elsewhere and if, upon filing her divorce petition, she had chosen to vacate the premises because of acts of agression of her husband, she would have been entitled on motion for temporary alimony to an allowance sufficient to cover her rent and food. This amount would undoubtedly have been in excess of the $18 per week allowed the wife by the trial court.

It seems to us, also, that the circumstances of the present case negative the possibility of any misrepresentations or fraud on the court in connection with the parties living under the same roof. The husband is 68 years of age and the wife 64, and the evidence indicates their full estrangement. She apparently has been in the habit of obtaining most of her meals and spending most of her time at the home of her son only a few blocks away and within easy walking distance. Under this arrangement, it is undoubtedly more convenient for the wife to live in the residence of which she is half owner and we see no reason why she should not do so. The theory of temporary alimony is that a husband is responsible for his wife’s support, by virtue of the marriage relationship, until such time as a divorce is granted. Under the circumstances of this case it would be more expensive to the husband if his wife had chosen to live elsewhere and we cannot say that the trial court abused its discretion in allowing her $18 per week during the pendency of the action.

One may deplore the actions of married couples who unthinkingly proceed as hastily into the divorce court as they may have proceeded into marriage. We cannot agree, however, with the argument of counsel for the husband in this case that the policy of permitting waves under any circumstances to obtain temporary alimony while living under the same roof as their husbands necessarily encourages the breakup of the home. "VVe grant that temporary alimony should not be allowed unless there is evidence of a true severance of the matrimonial relationship, but the financial exigencies winch may cause husband and wife to live under the same roof during the pendency of a divorce action may help to provide the steadying wisdom and the-period for reflection which will bring the parties together again. We are not as much worried about the possibility of fraud on the court where temporary alimony is granted and the parties continue to reside under the same roof as we are hopeful that the continuance of the marriage relationship may be thereby reestablished.

In further answer to the argument of counsel, we might add that our desire for some yardstick of certainty to apply to situations in an uncertain world should not blind us to the advantages of our system of jurisprudence which permits a court to consider each case in the light of its own peculiar circumstances. That, at least, is the basic theory of the common law.

There being no abuse of discretion, the appeal is dismissed.

Appeal dismissed.

Skeel, P. J., and Hurd, J., concur.


author: Fess, J.

text:
    Smith, Appellant, v. Wagner, Appellee. (Two cases.)
    (Nos. 773 and 774
    Decided June 23, 1952.)

      Messrs. DiSalle, Green é Haddad and Mr. Ned W. Thomas, for appellant.

      Mr. Paul E. Miller, for appellee.
   Fess, J.

Each of the appeals are from entries in companion cases finding that the actions were “filed” more than two years after the accident had occurred, and dismissing the petitions. The accident, as a result of which the actions were instituted, occurred September 28, 1948. The petitions accompanied by praecipes for summons and deposits for costs were filed on September 28, 1950, but the summonses were not issued-pursuant to the praecipes until September 29, 1950.

“A civil action must be commenced by filing in. the office of the clerk of the proper court a petition, and causing a summons to be issued thereon.” Section 11279, General Code.

At first blush it would seem that an action is commenced by the filing of the petition and praecipe for summons pursuant to which the plaintiff would thereby cause summons to be issued.

But Section 11230, General Code, provides:

“An action shall be deemed to be commenced within the meaning of this chapter [Chapter 2 relating to limitations of actions], as to each defendant, at the date of the summons which is served on him or on a co-defendant who is a joint contractor, or otherwise united in interest with him. * * *” (Italics supplied.)

Section 11231, General Code, provides:

“Within the meaning of this chapter, an attempt to commence an action shall be deemed to be equivalent to its commencement, when the party diligently endeavors to procure a service, if such attempt be followed by service within sixty days.”

In Baltimore & Ohio Rd. Co. v. Ambach (1897), 55 Ohio St., 553, 45 N. E., 719, the petition in error and the praecipe were filed within the six months allowed by statute, but the summons was not caused to be issued within the six months. The court held:

“The burden of causing a summons to be issued is cast upon the plaintiff in error, and as no summons was caused to be issued, in this case, there was no endeavor to procure the service of summons, and therefore the plaintiff in error does not bring itself within the saving provisions of Section 4988 [now Section 11231, General Code], and the Circuit Court was right in dismissing the petition in error.”

In McLarren v. Myers, Admr. (1912), 87 Ohio St., 88, 100 N. E., 121, the Supreme Court again held that the burden of causing a summons in error to be issued in an error proceeding is imposed by law on the plaintiff in error, and Section 12270, General Code, being a statute of limitations to be enforced as other similar statutes, the praecipe of the plaintiff in error and his request to the clerk to issue summons will not toll the statute'or avoid the bar thereof if summons which is served on defendant in error is not issued prior to the expiration of the time fixed, unless facts are shown which bring the case within some saving provision of law. Section 12270, General Code, provided that no proceedings to reverse, vacate or modify a judgment or final order shall be commenced unless within four months after the entry of the judgment or final order complained of. Section 11224-1, General Code, provides that an action for bodily injury or injuring personal property shall be brought within two years after the cause theréof arose. The word, “brought,” as used in Section 11224-1, General Code, is synonymous with the word, “commenced,” as employed in Sections 11230, 11231 and 11279, General Code. Cf. Landrum v. Fulton, Supt. of Banks, 47 Ohio App., 376, 191 N. E., 917. In Zakrzewski v. Lenczycki, 50 Ohio App., 116, 197 N. E., 595, this court dismissed a petition in error which had been filed with a praecipe for summons within the seventy-day limitation but wherein, through inadvertence, the summons in error was not issued until some two or three days later. The judgment was affirmed on authority of the McLarren case, supra, in Zakrzewski v. Lenczycki, 129 Ohio St., 462, 195 N. E., 867.

In Feigi v. Lopartkovich, 38 Ohio App., 338, 176 N. E., 670, it was held that a suit is not deemed “commenced ’ ’ until the date of the issuance of the summons, which is thereafter properly served; and, unless such date is within the time prescribed by the statute of limitations for commencing the action, the plea of said statute will defeat the action. See, also, Coughlin v. Passionist Monastery of the Holy Cross, 59 Ohio App., 433, 18 N. E. (2d), 496.

It appearing from an examination of the record upon these appeals that the actions were not brought within two years after the cause thereof arose, the judgments are affirmed.

Judgments affirmed.

Conn and Savord, JJ., concur.


text:
    Sander, Appellee, v. Board of Review, Bureau of Unemployment Compensation, Appellant.
    (No. 7442
    Decided December 10, 1951.)

      Mr. George Albert Skives, for appellee.

      Mr. C. William O’Neill, attorney general, and Mr. J. Ralston Werum, for appellant.
   Per Curiam.

This is an appeal on questions' of law from a judgment of the Court of Common Pleas of Hamilton County.

One question presented by this appeal is whether the plaintiff was required to set out in his notice of appeal, in detail and fully, the terms of the final disposition of his appeal to the Board of Beview, Bureau of Unemployment Compensation. The plaintiff in his notice of appeal to the Court of Common Pleas stated:

“Clifford B. Sander, claimant, appeals from the decisión of the Board of Review, Ohio Bureau of Unemployment Compensation (Board of Review Appeals Docket No. 119663, further identified as 9831-REF-50; 1386-BR-50, said decision bearing mailing date November 15 1950, and, as indicated, signed by board members Ralph W. O’Neill, W. T. Roberts, Don W. Wiper and [secy.] Amos I. Garrison.)

“Decision appealed is (quote): ‘the initial determination of claim dated May 29 1950, is hereby affirmed,’ meaning, in the language of the board, that, according to the administrator’s initial determination, claimant was disallowed benefits for the weeks of (numbered) 36, 37, 38, and 39, of the year 1949, upon the issue ‘failure to register.’ The benefits claimed are ‘extended’ benefits, as prescribed by law.”

Such description of the finding appealed from is held sufficient in Moore v. Foreacher, Recr., 156 Ohio St., 255, 102 N. E. (2d), 8, wherein it is stated in the syllabus:

“Where an appeal is taken to the Common Pleas Court from a decision of the Board of Review, Bureau of Unemployment Compensation, that portion of Section 1346-4, General Code, which reads, ‘such notice of appeal shall set forth the decision appealed from,’ does not require that the decision appealed from be incorporated in the notice of appeal by being copied into it or by being attached thereto and made part thereof by reference. The ‘decision appealed from’ is sufficiently ‘set forth’ to satisfy the requirements of that statute where the notice of appeal clearly and without any ambiguity or uncertainty identifies, fully describes and states the substance and effect of the decision from which the appeal is taken.”

A motion was filed by appellant in the Court of Common Pleas to dismiss the appeal from the Board of Review, Bureau of Unemployment Compensation, and this motion was properly overruled by the Court of Common Pleas.

The appellant there again asserted its claim that plaintiff is not entitled to additional compensation by virtue of the change in the law because plaintiff “failed to register” as appellant asserts is required by law.

The trial court in the opinion stated:

“It is also apparent that plaintiff had complied with the laws and regulations governing claims for benefits for the weeks he received compensation prior to the ones in question, for those had all been paid to him. It is also reasonably apparent that claimant’s conduct concerning his claim for the additional weeks 36 to 39 was caused by some misinformation by the employees and agents of the Bureau of Unemployment Compensation as to the required proceedings by him for these four weeks under the new law and also by the statement that was made to him by one of the bureau’s employees, when on August 30th the claims clerk shoved a report and identification card back to claimant and said, ‘That’s all — you’ve got all.’

“The court therefore finds that the decision of the' Board of Review of the Ohio Bureau of Unemployment Compensation is unreasonable and against the manifest weight of the evidence and should be reversed and that claimant is entitled to recover a judgment for $104 for the four weeks numbers 36, 37, 38 and 39.”

In this conclusion of the trial court we agree, and the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed;

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


text:
    The State, ex rel. Raydel, Appellee, v. Raible, Appellant.
    (No. 22515
    Decided October 27, 1952.)

      Messrs. Corrigan, McMahon & Corrigan and Messrs. Sindell & Sindell, for appellee.

      Mr. Wm. J. Kraus, for appellant.
   Thompson, J.

The present appeal to this court on questions of law is from an order of the Common Pleas Court of Cuyahoga County, entered under date of March 5, 1952, granting a motion of the complainant in a bastardy action to stay and restrain the taking of depositions by the defendant. The transcript and bill of exceptions disclose that complainant, Alice E. Raydel, filed a complaint in bastardy against defendant, C. Greif Raíble, before one Myron J. Penty, justice of the peace. A hearing under the statute was accordingly held at which complainant was examined by defendant’s counsel as authorized by Section 8006-4, General Code, the examination being reduced to writing and subscribed by her. Within 30 days thereafter, as provided by Section 8006-10, General Code, tbe justice of the peace forwarded a certified transcript of the proceedings, including the testimony of complainant, to the clerk of the Common Pleas Court of Cuyahoga Countv, the transcript being filed on October 22, 1951.

On December 19, 1951, counsel for complainant filed in the Common Pleas Court an application for an order staying the taking by defendant of the depositions of complainant. The application was in the following language:

“Now comes the complaining witness, Alice E. Raydel, by her attorneys, Sindell & Sindell, and applies to the court for its order staying the defendant, through his attorney, Wm, J. Kraus, from taking the depositions of Alice E. Raydel.”

The application contained a notice of hearing at a specified time and place. At that hearing, on January 5, 1952, the application was overruled and a motion was filed three days later by complainant for rehearing. Upon the rehearing, which transpired before another judge of the same court and based upon evidence presented, the Court of Common Pleas entered an order on March 5,1952, stating that “until further order of the court, conditioned upon the appearance of the defendant herein and his availability to the complainant for prior depositions or the affidavit of an agreement by the parties hereto as to the taking of their respective depositions herein, the defendant by and through his counsel, be and hereby is restrained from taking the depositions of the complainant or any other witness in this cause.” The order referred to the fact that complainant had been previously examined before the justice of the peace court in the pending matter and that she had been cross-examined there at length by the defendant. The order likewise recited that complainant was seeking the depositions of the defendant, who was then absent from the jurisdiction of the court and outside the United States and that defendant’s counsel, although requested by the court, had been unable to advise when and if the defendant would return to the jurisdiction and be. available for the purpose of having his depositions taken by complainant.

The assignments of error in this court are nine in number, including the following:

1. The court erred in granting a rehearing of the motion of complainant to stay the taking of her depositions.

2. The court erred in granting the motion of complainant to stay the taking of her depositions.

3. The court erred in staying the taking of the depositions of other witnesses, no motion for that purpose having been filed by complainant.

With respect to the motion for rehearing granted to complainant, we have pointed out that it was filed within three days after the court’s order of January 5, 1952. The motion alleges that it was based on “matters that were not before available ’ ’ and it is deducible from the bill of exceptions that various events had transpired since the filing of the motion on December 19, events which very possibly corroborated the original allegations. Under the circumstances, we find no abuse of discretion by the trial court in granting the motion for rehearing.

Coming to the second assignment of error that the trial court erred in granting the motion of complainant to stay the taking of her depositions, we reach the vital question before us. For its determination we turn to an examination of the right to take depositions as recognized under Ohio law.

In this state, the taking of testimony of witnesses by deposition is authorized and regulated by statute. 14 Ohio Jurisprudence, 8, “Depositions,” Section 3. With respect to the taking of depositions in civil cases, see Sections 11521 to 11549, inclusive, General Code. These sections are found in Part Third, Title IV, Procedure in Common Pleas Court, under Division III, in Chapter 3, entitled “Evidence.” Section 11526, General Code, cited to us by counsel, provides as follows:

“Section 11526 [What deposition taken]. Either party may commence taking testimony by deposition at any time after service upon the defendant. ’ ’

Our attention has been likewise called to Section 11497, General Code, declaring in part as follows:

“At the instance of the adverse party, a party may be examined as if under cross-examination, either orally, or by deposition, like any other witness. ’ ’

This section is likewise a part of the procedure in Common Pleas Court set forth in chapter 3, entitled “Evidence.”

We also cite from the same chapter of the Code, Section 11539, of which we quote the first sentence as follows:

“Section 11539 [Where depositions may be used]. Depositions taken pursuant to this chapter shall be admitted in evidence on the trial of any civil action or proceeding pending before a justice of the peace, or mayor or other judicial officer of a municipal corporation, or before arbitrators, a referee, or a master.” (Emphasis added.)

Although under Section 13444-15, General Code, the examination of witnesses by deposition in criminal cases shall be taken and certified, and the return thereof to the court made as depositions are taken in civil cases, it is important to emphasize that depositions in criminal cases are governed by Section 13444-11, General Code. The only condition under which depositions may be taken in such cases is by application in writing to the court for a commission to take the deposition of witnesses desired. The court has discretion, under such circumstances, to consider whether the right to take the deposition should be granted. This section is so significant that we quote it in full:

“When an issue of fact is joined upon an indictment and a material witness for the state or the defendant resides out of the state, or residing within the state is sick or infirm, or about to leave the state, or is confined in prison, the prosecuting attorney or the defendant may apply in writing to the court for a commission to take the depositions of such witness. The court or judge may grant such commission and make an order stating in what manner and for what length of time notice shall be given to the prosecuting attorney or to the defendant, before such witness shall be examined. Such commission shall not be 'granted and such order shall not be made until there is filed with the clerk of said court, an affidavit stating in substance the evidence sought to be secured by deposition, and that it is competent, relevant and material, and it shall appear to the court that such evidence is relevant, competent and material.”

Our question for decision in this case is not whether a bastardy action is to be deemed a criminal action or a civil action so far as the applicable statutes relating to the taking of depositions are concerned. It has been frequently noted that a bastardy action in this state is a hybrid type of proceeding, possessing both criminal and civil aspects. The most recent decision of the Supreme Court of Ohio, discussing the nature of a bastardy action, is State, ex rel. Gill, v. Volz, 156 Ohio St., 60, 100 N. E. (2d), 203. The hybrid character of such action is apparent in the fact that the Ohio statutes regulating this type of proceeding were for many years included in Title IV of the General Code, relative to Procedure in Common Pleas Court and grouped under Division VIII, along with amercement and contempt of court. These proceedings were there described as quasi-criminal actions. (See Sections 5614 through 5638, Revised Statutes, later designated Sections 12110 through 12134, General Code, amended in 110 Ohio Laws, 296, and repealed in 124 Ohio Laws, 178, effective August 28,1951.)

Bastardy proceedings are presently governed by Sections 8006-1 through 8006-24, General Code, effective August 28, 1951. It will be noted that Section 8006-4, General Code, permitting examination of complainant by the accused, is the same as former Section 12111, General Code. The only difference in the more recently enacted section, applicable to the present case, is that it refers to “the justice of the peace or juvenile judge,” while the former section referred to “the justice or judge.” Other new sections remain almost identical in form with former sections, it being apparent from examination of the new act that the main purpose was to give jurisdiction to juvenile judges as well as to justices of the peace in bastardy complaints and not to change in any respects the essential character of the action.

We might, on the basis that a bastardy action partakes of criminal character, particularly in its preliminary stages, uphold the action of the trial court in the case before us on the ground that the provisions in criminal cases for taking depositions only upon application to court and by commission apply by analogy in such circumstances. We might also uphold the trial court’s action on the ground that a bastardy action is a special proceeding and that to the extent that the statutes here lay down specific requirements and methods of procedure, these shall be followed to the exclusion of general provisions of the Code. In this connection, we might point out that under Section 8006-4, General Code, one examination of complainant by the accused had previously taken place and that only one preliminary examination of complainant is there authorized. We prefer to base our opinion, however, on the broader ground that even if a bastardy action may be said to have such quasi-civil aspects that the general provisions of the Civil Code with reference to taking of depositions apply, and notably Section 11526, General Code, which we have previously quoted, the trial court was nonetheless vested with authority to apply the section with a certain discretionary latitude or firmness as circumstances might require.

Under Section 11526, General Code, authorizing either party to commence taking testimony by deposition at any time after service upon the defendant, no one would question the right of the trial court, we believe, to postpone or delay the taking of depositions of a party lying semi-conscious in a hospital. We also believe that no one would deny the right of the trial judge to delay the taking of testimony of one of the parties where some unforeseen and unexpected illness of counsel, or unanticipated “Act of God,” intervened.

In the present case, there had already been one cross-examination of complainant at the time of the preliminary hearing and that cross-examination had been thorough. At the time that complainant, through her counsel, filed her motion to restrain the taking of her deposition, there was some evidence before the trial court that harrassment and oppression of complainant were the purposes of the accused rather than the preparation of his own case and that he himself was outside of the United States, unable to be reached by process and very possibly evading process. His counsel was unable to give the trial court any idea as to when his client might return to the Onited States and be available for a deposition hearing.

The order appealed from reveals that the trial court by its decision restrained the taking of complainant’s deposition only “until further order of the court, ’ ’ and that the order was based on evidence presented in open court. We believe the evidence justified firmness by the oourt. Furthermore, we think it important to stress that the trial court’s action did not deny the right to take depositions by accused. It merely postponed the taking “until further order of court.” We glean from the record that some kind of fisticuffs had been engaged in by counsel, and the court may well have desired not only to uphold its own dignity but to provide a cooling off period for counsel and the parties. The court also undoubtedly had its own views as to the equities of the matter.

We therefore have before us the question whether a trial court has the authority to exercise a reasonable control over proceedings pending in its forum. We believe that the trial court had power to exercise a reasonable control over the deposition proceedings by deferring the taking of complainant’s deposition under the circumstances of this case. It is our view that such power is inherent in the trial court and that it may be invoked to insure the orderly administration of justice.

We find few cases concerning the right of the trial court to postpone the taking of depositions and no Ohio cases directly in point. We are impressed with the reasoning and essential wisdom of the decision of the Supreme Court of California in Hays v. Superior Court of Los Angeles County (1940), 16 Cal. (2d), 260, 105 P. (2d), 975. California, as one of the provisions of its Code of Civil Procedure, has a statute identical in purport with Section 11526, General Code. We refer to Section 2021 of the California Code of Civil Procedure, providing as follows:

“The testimony of a witness in this State may be taken by deposition in an action at any time after the service of the summons or the appearance of the defendant * *

In the case cited, the question was whether this section of the California Code gave a party an absolute right to take the depositions of an adverse party “at any time after the service of the summons or the appearance of the defendants.” The trial court had delayed the taking of a certain deposition in the case and, on appeal from this decision, the Supreme Court of California was confronted with the question whether the trial court’s action constituted an abuse of discretion under the language of the statute.

In its opinion upholding the trial court, the Supreme Court of California declared:

“There is nothing novel in the concept that a trial court has the power to exercise a reasonable control over all proceedings connected with the litigation before it. Such power necessarily exists as one of the inherent powers of the court and such power should be exercised by the courts in order to insure the orderly administration of justice. We find nothing in the code sections relating to the taking of depositions which can be construed as an attempt to withdraw that power with respect to deposition proceedings. It is true that the language of Section 2021 of the Code of Civil Procedure permits the taking of a deposition ‘at any time’ and that the permissive language of said section may be said to confer a right upon the litigants. But such right is not an absolute right but is a right which, like all rights relating to procedural matters, is qualified by the existence of the power of the court to exercise a reasonable control over the exercise of such right. To deny the existence of such power is to deny the power of the trial court to order the continuance of a deposition in case of the illness of the witness or in case of the illness or the death of a party or his counsel. We do not believe that it would be seriously contended that the power to order a continuance does not exist under such circumstances; and if the power does exist under such circumstances, it may exist under other circumstances for its existence in the suggested cases must necessarily be based upon the power of the court to exercise a reasonable control over the proceedings. If, in any case, the trial court acts unreasonably or in such manner as to deny the right rather than to exercise merely a reasonable control over the exercise of the right, then the trial court would be acting beyond its powers and its actions would be controlled by mandamus or other appropriate remedy. ’ ’

Examination of the California cases indicates that the language quoted constitutes the law in California today, although the decision is questioned on other grounds by one concurring judge in the more recent case of Brown v. Superior Court of Los Angeles County (1949), 34 Cal. (2d), 559, 212 P. (2d), 878.

We are content to adopt as ours the language we have quoted in the absence of higher authority in this state.

We might add that in the nisi prius case of In re Detention of Helen E. Robinson (1900), 7 N. P., 105, 9 O. D., 763, the judgment in which was affirmed by the Cuyahoga County Circuit Court in Robinson v. McConnell, Sheriff, 19 C. C., 716, 10 C. D., 797 (a decision by judges Caldwell, Marvin, and Hale), the principle appears to be recognized that a court may intervene to postpone the taking of depositions where abuse of that process is indicated.

The power of a court to protect its own authority, and the rights of those who invoke its orderly processes has seldom been doubted under our theory of government. It is not susceptible of question here.

With reference to the third assignment of error, in view of the fact that complainant’s request was to restrain the taking of her own depositions only, the trial court’s order in restraining the taking of any depositions by defendant was more inclusive than requested. We are modifying the trial court’s order in this one respect, as it pertains to the postponement of the taking of depositions of witnesses other than complainant.

We have examined the other assignments of error and with the one modification noted, we affirm the judgment of the trial court.

Judgment modified and as modified affirmed.

Skeel, P. J., and Hurd, J., concur.


text:
    Whalen, Appellee, v. Kellogg, City Manager, et al., Appellants.
    (No. 7686
    Decided January 12, 1953.)

      Mr. Louis J. Schneider, Jr., for appellee.

      Mr. Henry M. Bruestle, city solicitor, and Mr. Edgar W. Holts, for appellants.
   Per Curiam.

This appeal presents a contest for appointment to the position of waste collection foreman in the Department of Waste Collection of the city of Cincinnati, based upon the result of a promotional examination held by the municipal civil service commission.

The plaintiff and defendant Jack Brown are, and were, employed in the waste collection department at the time the promotional examination was conducted, and were eligible to and took the examination.

The result of the examination, as originally certified, showed that the plaintiff was in second position for promotion and Jack Brown was lower on the list. Upon requisition from the city manager, the plaintiff’s name was certified for appointment. It seems that before the city manager acted upon the certification, a question was raised as to whether the civil service commission had properly calculated the credit to which Jack Brown was entitled because of time of service. It appears that prior to June 1943 he had been an employee in the department, but that on June 30, 1943, he resigned and ceased to be an employee. In September 1946 Jack Brown qualified by taking a competitive examination, as upon an original appointment, for a position in the waste collection department, to which he was then appointed and which he continued to occupy and was so occupying at the time the promotional examination was held.

The civil service commission in calculating Jack Brown’s grade in the first instance gave him credit for time of service commencing in September 1946, and, so calculated, his grade placed him below the plaintiff on the eligible list. As recalculated, giving him credit for time served during his first employment, their positions were reversed.

The plaintiff was placed on the eligible list in second position and was so certified to the appointing authority, but before any appointment was made, the grades were recalculated and the positions of the applicants on the eligible list were shifted, the appointing authority notified, and Brown appointed.

There is no claim that any mistake was made affecting the base grade resulting from the examination. The change resulted solely from the conclusion of the civil service commission that the defendant Brown was entitled to have the time he served prior to his resignation in 1943 included in his “years of service” as that phrase is used in Section 486-10, General Code, in determining the percentage to be added to his base grade.

When the defendant Brown resigned in 1943, all his rights as an employee in the waste collection department ended. It is true that the appointing authority and civil service commission, by Section 486-16, General Code, are given the power or discretion where an employee is separated from the service without delinquency or misconduct to reinstate such employee, but they are not required to do so. And this discretion to reinstate expires at the end of one year from the separation.

Therefore, when defendant Brown desired reemployment in the department, he did not appeal to the discretion of the appointing authority to dispense with the examination required as a condition of an original appointment. On the contrary, he submitted himself to the examination and was appointed because of the position he attained on the eligible list as a result of the examination.

Certainly, in the interval of his unemployment in the department, he would not have been eligible to take a promotional examination. The defendant Brown lost the right to take the promotional examination when he voluntarily separated himself from the service. Necessarily, he based his right to take the promotional examination upon his re-employment, resulting from his success in passing the examination of 1946, and not upon his service in the department prior to 1943. It would seem incongruous to give him credit on a promotional examination for a service for which he could not be given credit in determining his grade on re-employment. And to add anything to his grade on examination for re-employment would contravene the provision limiting the exercise of the discretion of the head of the department and the commission to one year from the separation from the service.

Counsel cite State, ex rel. Bigam, v. Hainen et al., Civil Service Commission, 150 Ohio St., 371, 82 N. E. (2d), 734. As we view it, that case is not relevant. It is true that it construes the phrase, “years of service,” contained in Section 486-10, G-eneral Code, as applied to the facts of that case, but the facts were that the employment had been continuous and that was recited in the statement of facts on page 371.

We are of the opinion that the defendant Brown was not entitled to credit for the time of his prior service in calculating his “time of service” in determining his position on the eligible list for promotion; that the civil service commission erred as a matter of law in giving him credit therefor; and that the plaintiff is and was entitled to the appointment to the position of foreman in the waste collection department.

For these reasons, the judgment is affirmed.

Judgment affirmed.

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