text:
    The State, ex rel. Merrill, Appellee, v. Moore, Appellant.
    (No. 1969
    Decided April 17, 1948.)

      Mr. Richard L. Withrow, for appellee.

      Mr. Walter L. Connors, for appellant.
   By the Court.

This cause is submitted on motion of plaintiff, appellee herein, to dismiss the appeal on the ground that defendant, appellant herein, has failed' to comply with Bule VII of this court.

This is an appeal on questions of law. The action originally was a bastardy proceeding. The defendant was found to be the reputed father of the child. The order of the court under date of May 24, 1947, in part provided that the defendant pay to the complainant, Joy B. Merrill, the sum of $5 per week until further order of the court. On motion of the complainant to require the defendant to show cause why he should not be held in contempt of court for failure to make the support payments, the court on December 18, 1947, found the defendant guilty of contempt of court and pronounced sentence. From this judgment this appeal was taken.

Does Rule VII of this court control? If Rule VTI applies, the motion to dismiss is properly filed and must be sustained since defendant failed to file his assignments of error and brief within fifty days after filing notice of intention to appeal.

Rule VII applies only to an appeal in a civil action. It has no application to an appeal in a criminal proceeding. State v. Jarcho, 65 Ohio App., 417, 421, 30 N. E. (2d), 444. Is this a civil or criminal proceeding? While bastardy proceedings possess the attributes of both criminal and civil proceedings, they are essentially civil. In 5 Ohio Jurisprudence, 543, Section 5, is found this statement:

“Bastardy proceedings are partly of a civil and partly of a criminal nature, partaking of both, and in fact not strictly either. The Ohio courts, while designating bastardy proceedings as ‘quasi criminal,’ are inclined to place them in a civil category. In fact, a provision of the Code of 1853 specifically excepted the mode of proceeding in bastardy from the operation of the Code, which was exclusively a Code of Civil Procedure, and the Supreme Court has stated that, by thus recognizing the necessity of such special exception to accomplish that end, the Code recognizes the •essentia] character of bastardy as a civil proceeding. This provision has reference to proceedings under the Bastardy Act strictly, and not to proceedings to review them on error. This being true, the courts have applied various provisions of the Code of Civil Procedure to such actions.

“It has been held that the prosecution of a bastardy case rests in control of the Code of Civil Procedure, as in ordinary civil cases, except where limited by the statutes, the limitations having reference to the public interests. It may be stated generally, then, that bastardy proceedings are controlled by the Code of Civil Procedure.”

See State, ex rel. Pennington, v. Barger, 74 Ohio App., 58, 57 N. E. (2d), 815, and cases therein cited.

Is the contempt charge in the instant case a civil or criminal proceeding? Contempt charges may be either civil or criminal. A discussion of this subject is found in 9 Ohio Jurisprudence, 20, Section 5, in which it is stated that:

“Criminal contempts are those which are committed in the presence of the court and disturb its administration of justice either physically and directly, as by disorderly misconduct, or morally and indirectly by bringing the administration of justice into public disgrace. Criminal contempts are all acts committed against the majesty of the law, or against the court as an agency of the government, and, in which, therefore, the whole people are concerned.”

On page 22 of the same work it is stated that:

“Civil contempt has been defined as that which exists in failing to do something ordered to be done by the court in a civil action for the benefit of the opposing party therein. In other words, civil contempts are those instituted to preserve and enforce the rights of private persons, — they are civil, remedial and coercive, whereas a commitment for a criminal contempt is punitive.”

Applying those tests to the record in this case, we conclude that this action was one of. a civil nature and Rule VII controls the time within which assignments of error and brief of the defendant-appellant are required to be filed.

This court has consistently ruled that where the appellant fails to file assignments of error and brief within fifty (50) days after the filing of notice of intention to appeal, a motion to dismiss the appeal will be sustained. Section 12223-21, General Code; Anderson v. Industrial Commission, 135 Ohio St., 77, 19 N. E. (2d), 509; Fulkerson v. Roxanna Canning Co., 26 Ohio Law Abs., 607; Tucker v. Fergus, 30 Ohio Law Abs., 508; Lair v. Lair, 33 Ohio Law Abs., 544, 35 N. E. (2d), 850; Parrett v. Parrett, 42 Ohio Law Abs., 413, 60 N. E. (2d), 736.

Motion to dismiss the appeal is sustained.

Motion sustained.

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


source: Caselaw Access Project

author: Stevens, J.

license: Public Domain

text:
    The Cleveland Concession Co., Appellant, v. City of Cleveland et al., Appellees.

      (No. 20845
    Decided August 16, 1948.)

      Messrs. Spieth, Spring & Bell and Mr. Morton M. Stotter, for appellant.

      Mr. Lee C. Rowley, director of law, Mr. Robert J. Selser and Mr. Robert M. Morgan, for appellees.
   Stevens, J.

This case comes to this court as an appeal on questions of law and fact.

The petition seeks the issuance of a permanent injunction against the city of Cleveland and various officers of said city o(appellees herein), enjoining them from cancelling or rescinding the concession contract of plain tiff (appellant), under which plaintiff was granted the exclusive right to sell refreshments and merchandise at the Cleveland Municipal Stadium for a period of five years from April 6, 1945.

The allegations of the petition as to plaintiff’s corporate capacity, that the city of Cleveland is a municipal corporation, and that the various individual defendants act in the official capacities alleged in the petition, are admitted by defendants, as also are the allegations that plaintiff was duly awarded the concession contract as the highest qualified bidder, and that it has operated thereunder since April 6, 1945.

Paragraph 8 of plaintiff’s petition alleges “that the defendant Arthur L. Munson, acting for and on behalf of the defendant the city of Cleveland, by registered letter, under date of August 16, 1946, advised the plaintiff of the intention of the city of Cleveland to cancel and rescind said contract above-enumerated as of September 1, 1946, by reason of certain alleged violations of said contract by plaintiff, each of which alleged violations this plaintiff specifically denies”; and in paragraph 9 of the petition, the following: “that, by registered letter dated August 18, 1946, delivered to each of the defendants herein other than certain members of the Board of Control of the city of Cleveland, plaintiff denied any violation on its part of the terms of said contract, further denied the right of defendant the city of Cleveland to terminate said contract, and further notified said defendant the city of Cleveland of plaintiff’s intention to perform, each and every, the covenants and obligations of said contract for the duration thereof, and to enjoy all the benefits and privileges granted to it thereunder.”

These allegations are admitted by the amended answer of defendants.

The petition then alleges that plaintiff has fully performed all of its obligations under said contract, and that it has no adequate remedy at law, because of the speculative and uncertain nature of its damages arising from a breach by defendants.

The answer of the defendants consists of a series of admissions of the truth of certain of the allegations contained in plaintiff’s petition, then a series of specific denials of certain averments of the petition, and concludes with a general denial of all allegations, the truth of which has not been admitted.

This case presents only two questions:

A. Was the city of Cleveland, under the facts here present, justified in cancelling its contract with plaintiff?

B. If not, has plaintiff shown, by the required degree of proof, a right to the issuance of an injunction?

Despite the fact that the amended answer of the defendants sets out no claims of default in the performance of the contract by plaintiff, the evidence, and the argument of counsel, indicate that the city’s contentions in that connection are as follows:

(1) That plaintiff is required to sell all of the items listed in schedules A, B, C and D of the contract.

(2) That plaintiff failed to pay the required percentage of gross receipts to the city upon sales made through vendors.

(3) That plaintiff did not pay all the required sales tax, workmen’s compensation payments, unemployment insurance, and federal social security assessments, by reason of its failure to include vendors’ commissions in its reports.

(4) That the plaintiff sold underweight and inferior quality merchandise, as evidenced by the Crumbacher samples; and because of the discovery by defendants of contaminated seed popcorn, it is claimed the popcorn sold in the stadium was contaminated and unfit for human consumption.

It is the claim of the city that the alleged breaches by plaintiff in the respects enumerated, justified the city in cancelling the concession contract.

The contract of the parties prepared by defendant city, and under which plaintiff is operating, in Section 29 stipulates:

“29. Proposed concession defined: The concession to be granted under the terms of this proposal shall be the exclusive right and privilege of selling in Cleveland Stadium such articles, and such articles only, as are listed in the schedules hereto attached and marked 'Schedules A, B, C, D,’ provided further, that this section is subject to the provisions of Section 30 next following. ’ ’

Section 30 deals with the sale of articles not included .in the schedules, and is not in controversy here.

It is conceded that plaintiff did not sell all the articles •enumerated in the schedules, but only those articles for which there was a demand, and that such a course of ■conduct had been followed by the parties since 1938, •under previous contracts containing the same or a ¡similar provision to that contained in the instant contract.

It is the rule that contracts of a municipal corporation providing for the exercise of proprietary functions within legal limits, are construed and interpreted 'by the same rules which govern contracts of private individuals. Phelps, a Taxpayer, v. Logan Natural Gas & Fuel Co., 101 Ohio St., 144, 128 N. E., 58.

It is a further rule that, where the parties to a contract have placed thereon a practical construction which harmonizes with their understanding of its re•quirements at the time of execution, a court, in interpreting such contract, will adopt such practical construction of the parties, if legal, and not opposed to public policy.

A further applicable rule is that, where doubt exists as to the proper construction of a contract, which ■contract was prepared by one of the parties thereto, ¡and on which the other party has acted, the contract will be strictly construed against the party who prepared it. Coe v. Suburban Light & Power Co., 32 Ohio App., 158, 167 N. E., 693.

Applying these rules to the provision of the contract under discussion, impels the conclusion that Section :29 did not require, but merely authorized and permitted, the sale by plaintiff of all the articles enumerated in schedules A, B, C and D of the contract.

The second point made by the city deals with the manner of computation of “gross receipts,” upon: which the city’s compensation is determined.

The evidence shows that plaintiff employs vendors-who canvass the persons in the stands for the purpose of selling to them various commodities. Those-vendors purchase from plaintiff the merchandise sold by them at 10% less than the retail sale price of said’ merchandise, and retain the 10% differential as their commission for selling the merchandise. The controversy here involves the question of whether the city’s compensation should be computed on the retail sales price of said merchandise, or upon the price at which-; it is sold to said vendors.

Under this contract, and all of its predecessor contracts for the past twelve years, the city’s share of’ gross receipts has always been computed on the basis of the money actually received by plaintiff for said merchandise. The manner of computation was adopted by the city, through its representative Felix J. O’Neil, treasurer of the stadium, with the approval' of the then law director, Alfred Olum, and the amounts determined solely by O’Neil and the city inspectors,, one of whom staffs each refreshment stand, have been- and are being paid by plaintiff; plaintiff has paid under protest, since June 7, 1947, the city’s percentage-figured on the basis of vendors’ retail sales.

Section 48 of the contract in part provides: ‘ ‘ Gross-receipts for the purpose of this contract shall mean the entire receipts from sales under each schedule-grouping, not including sales tax.”

The parties have placed their interpretation of the-meaning of the term “gross receipts” thereon by their conduct over a period of years, and this court is not disposed to disturb the reasonable interpretation of that term adopted by the parties.

Therefore, in this respect, plaintiff has been guilty of no breach of Section 48 of the contract.

On the subject of plaintiff’s alleged failure to pay •required sales tax, workmen’s compensation, unemployment insurance and federal social security assessments, because of its failure to include vendors’ commissions in the computation of the assessments for those items, it is sufficient to say that neither the state ■of Ohio, nor the federal government, has interposed claims for alleged shortages in payments of the various items enumerated. That is shown by the evidence, without contradiction. The city of Cleveland has not -been called upon to pay any such alleged shortages, nor is it vested by law with authority to enforce such obligations if owing to the state or federal governments.

We find no substance in this claim of the city.

The fourth point of contention relates to the claim ■that plaintiff sold merchandise, which in quality and weight did not conform to the specifications contained .in schedules A, B, C and D.

From a consideration of all the evidence bearing ¡upon the subject of the quality of merchandise sold by plaintiff, we are unanimously of the opinion that the evidence overwhelmingly establishes that the merchandise sold by plaintiff in the stadium was of a quality which equalléd or exceeded the requirements ■of the specifications of the contract.

The other evidence of alleged violations by plaintiff relates to samples of wieners, buns, peanuts and popcorn, purchased at the stadium by Fred Crumbacher, ;a temporary employee of the Cleveland health department, between July 24, 1946, and September 9, 1946, the aggregate of said purchases being $14.45.

The evidence of plaintiff establishes that it ordered .-and received from its purveyors, merchandise which conformed in weight to the specifications of the contract.

The evidence of the city, predicated upon the $14.4fi worth of samples allegedly purchased by Crumbacher,. and some other slight evidence, indicates that the-samples purchased did not conform to the contract specifications. In this connection, it is interesting to-note that, during the life of plaintiff’s contract (April 6, 1945, to August 16, 1946), sales in an amount exceeding a half million dollars were made by plaintiff.

The city’s evidence was not primary evidence, but secondary, and the samples allegedly purchased by Crumbacher were not produced, nor was any explanation of the failure to produce given by the city.

Then, too, the evidence shows that the samples were-not analyzed by the city in many cases until several' days after they were purchased, and such analysis-therefore could not accurately determine the weight of many of the samples when purchased, due to shrinkage.

The serious question of law presented by this situation is whether any of this secondary evidence offered' by the city is properly admissible, in the absence of an explanation by the city of the reasons for its failure to-produce the samples, after demand duly made by plaintiff therefor.

These samples of buns, wieners, peanuts and popcorn, were procured by employees of the city of Cleveland, delivered by them to employees of the health-department of said city for analysis, and, while susceptible of preservation, and production at the time-of trial, they were not produced, nor was their non-production explained.

The least rigorous rule which may be applied under-such circumstances is that announced in 31 CorpusJuris Secundum, Evidence, Section 156 b, as follows:

“The unexplained failure or refusal of a party to judicial proceedings to produce relevant and competent documentary evidence or an article which would ■tend to throw light on the issues authorizes, under certain circumstances, an inference or a presumption unfavorable to such party.

“Possession or control of such evidence by the party against whom the inference or presumption is sought, to be invoked, is necessary * * *.

“The unfavorable inference resulting from the non-production of * * * real evidence is especially applicable where the party withholding the evidence has had notice or has been ordered to produce it.” See, also, 3 Jones Commentaries on Evidence (2 Ed.), Section 1421.

Without determining that the secondary evidence produced by the city was inadmissible, in the absence ■of an explanation of its failure to produce the primary ■or real evidence, we are of the opinion that the cir•cumstances here present do give rise to an unfavorable inference against the city because of its failure to produce, or to explain the nonproduction of, the samples, after demand made by plaintiff therefor.

It is claimed by plaintiff that the letter of the city-under date of August 16, 1946, which attempted on August 16, 1946, to cancel plaintiff’s concession contract as of September 1, 1946, as a matter of law ac•complished no cancellation, because it waived alleged breaches occurring prior to August 16, 1946, by continuing the contract in force until September 1, 1946.

The law seems to be clear that one who attempts to • cancel a contract for prior alleged breaches, and who postpones the cancellation date to a later time than the notice of cancellation, thereby waives the alleged breaches, and elects to continue the contract in force; he cannot under such circumstances thereafter successfully urge cancellation of the contract because of' breaches occurring prior to the date of the notice off cancellation. 3 Williston on Contracts (Rev. Ed.),. Section 687.

On August 30, 1946, the city sent to plaintiff another letter of cancellation wherein it notified plaintiff of the cancellation of plaintiff’s contract as of that' date for failure “to comply with the terms thereof.”

However, between August 16, 1946, and August 30,. 1946, the transcript discloses no substantial evidence-of any breach by plaintiff, which justified cancellation' of the contract by the city.

This conclusion is sufficient to dispose of the defendants ’ claims of breaches by the plaintiff, but we prefer-to rest our decision of this case upon all of the evidence as it appears from the record.

The whole evidence in this case, augmented by the-inferences properly deducible therefrom, is such as, in our opinion, requires the conclusion that in none off the respects claimed by the city has the plaintiff been-guilty of any breach justifying cancellation of its contract by the city.

We further hold that, because of the many uncertain-elements which would necessarily enter into a determination of plaintiff’s damages resultant upon a-breach of its contract by the city, plaintiff does not have a full, adequate and complete remedy at law. Hence, it may properly avail itself of the equitable-remedy of injunction.

We are of the opinion that plaintiff has shown, by the required quantum of proof, a right to the issuance-of an injunction.

A decree may be prepared granting to plaintiff a-permanent injunction restraining defendants frontcancelling plaintiff’s concession contract No. 3321 for the Cleveland Municipal Stadium because of alleged ■breaches occurring on or prior to August 30, 1946; all .at defendants’ costs.

Exceptions to defendants.

Decree accordingly.

Doyle, P. J., and Hunsicker, J., concur.

Doyle, P. J., Stevens and Hunsicker, JJ., of the Ninth Appellate District, sitting by designation in the .Eighth Appellate District.


author: Conn, J.

text:
    Picklesimer, Appellant, v. The Baltimore & Ohio Rd. Co., Appellee.
    (No. 554
    Decided May 3, 1948.)

      Messrs. Young S Young, for appellant.

      Mr. G. Bay Craig, for appellee.
   Conn, J.

The appeal in this case is taken on questions of law from a judgment of the Court of Common-Pleas sustaining the general demurrer of the defendant to the amended petition of plaintiff and the dismissal of the amended petition.

Plaintiff alleges that he was employed by defendant and that on November 11, 1945, he sustained serious- and permanent injuries as such employee by reason of the negligence of defendant; that subsequent thereto, to wit, on or about January 30, 1946, defendant’s-claim agent and certain doctors employed by it, falsely represented to plaintiff that he had fully recovered; that his injuries were not permanent; and that he was-able to return to work.

Plaintiff alleges further that he believed these representations to be true and, relying on them as being-true and in consideration of $900, he ‘ ‘ released the defendant from all claims arising out of” the personal injuries he had received; that the amount paid by defendant was grossly inadequate; that defendant knew the amount paid by it was not a fair and reasonable-sum or adequate to compensate plaintiff; and that all the representations of defendant were falsely and fraudulently made with knowledge that the same were false and made for the wrongful purpose of defrauding-the plaintiff, whereby he sustained damages.

The sustaining of the general demurrer to plaintiff’s .amended petition is assigned as error.

The amended petition appears to contain the essential averments in setting forth a cause of action in deceit and in this respect is good as against a demurrer. However, defendant contends “that the alleged false- and fraudulent representations were in the inducement which led up to the giving or execution of the-release” and that the issue raised by the demurrer is-that the compromise of a claim is a bar to an action. upon the original claim “until rescinded by a tender back of the consideration of $900 paid # * Our attention is thus directed to the nature and character of the action set forth in the amended petition. This must be kept in mind, as it is the focal point of the issue. If we deviate at this point, the reported cases tend to lead us astray.

The instant case is not one where we are obliged to distinguish between fraud in the execution of a settlement and release of a claim accomplished by some device or trick, or where there is want of capacity, and fraud in the inducement where the execution of the instrument relied on or settlement made was accomplished by false and fraudulent representations. In the former case, the instrument is void and in respect thereto it is not necessary to return or offer to return the consideration received before maintaining an action on the original claim, whereas in the latter situation, where the settlement or release is voidable, the consideration must be returned or, at least, tendered as a condition precedent to the maintenance of an action on the original claim. In support of the foregoing.propositions we cite the following authorities:

Baird v. Howard, 51 Ohio St., 57, 36 N. E., 732, 22 L. R. A., 846, 46 Am. St. Rep., 550; Perry v. M. O’Neil & Co., 78 Ohio St., 200, 85 N. E., 41; Flynn v. Sharon Steel Corp., 142 Ohio St., 145, 50 N. E. (2d), 319; Jones v. Pickle, 7 Ohio App., 33; Martin v. Sentker, 12 Ohio App., 46; Bailey v. London Guarantee & Accident Co., 72 Ind. App., 84, 121 N. E., 128; 6 Ohio Jurisprudence, 551, Section 35; 134 A. L. R., 6.

As suggested above, this action is grounded on the alleged fraudulent acts of defendant. It is by reason of the alleged fraud that a new cause of action arises. Under these circumstances, the plaintiff had the right of election of remedies. He might avoid the settlement and release by appropriate averments and stand on his original cause of action, or he may begin an action in deceit to recover damages for fraudulent misrepresentation, as he has undertaken to do in the instant case. 19 Ohio Jurisprudence, 439, Section 156.

Early in Ohio, in the case of Edwards v. Owen, 15 Ohio, 500, it was held that a special action on the case will lie where the holder of a promissory note was induced to discharge same for less than full payment by reason of the fraudulent representation of the obligor thereon that he was insolvent and unable to pay his debts. The first paragraph of the syllabus is as follows:

“A special action on the case may be sustained against a debtor, for fraudulently representing himself insolvent, and thereby inducing his creditor to discharge a promissory note for less than its value.”

The doctrine of that case appears to be the settled law of Ohio and of many other jurisdictions.

Bartholomew v. Bentley, 15 Ohio, 659, 45 Am. Dec., 596; 19 Ohio Jurisprudence, 463, Section 183; 37 Corpus Juris Secundum, 354, Section 65; 24 American Jurisprudence, 21, Section 200.

It is our opinion that the sustaining of defendant’s demurrer to the amended petition was erroneous and that the judgment of the trial court should be reversed.

Judgment reversed.

■Carpenter and Fess, JJ., concur.


author: Hurd, P. J.

text:
    The State of Ohio, Appellee, v. Virgi et al., Appellants. The State of Ohio, Appellee, v. Dottore, Appellant.
    (Nos. 21032 and 21033
    Decided May 3, 1948.)

      Mr. Frank T. Cullitan, prosecuting attorney, ana Mr. Victor DeMarco, for appellee.

      Mr. P. C. Barragate and Mr. A. H. Martin, Jr., for appellants.
   Hurd, P. J.

The sole question now before this court for consideration is whether the Court of Common Pleas erred prejudicially in denying the defendants, appellants herein, permission on motion to withdraw pleas of “guilty” previously entered and to proceed to trial on pleas of “not guilty” as prayed for.

The record shows that both defendants were indicted jointly on several counts in one indictment, and that the defendant, Dottore, was also indicted separately — both indictments charging the crime of larceny by trick. On arraignment the defendants pleaded “not guilty” but on December 19, 1947, counsel for defendants requested that the cases be called out of order in advance of regular time for trial. After conferences with the court, counsel and the prosecuting attorney in chambers, the defendants entered pleas of “guilty” in open court. The court thereupon passed the cases for sentence to January 14, 1948. On January 13, 1948, motions on behalf of both defendants, with supporting affidavits, were filed, praying leave to withdraw the pleas of “guilty” to enter pleas of “not guilty” and to proceed to trial on the merits.

The affidavit of defendant, Dottore, reads as follows:

“Anthony Dottore, being first duly sworn, deposes and says that on the - day of December, 1947, he entered a plea of ‘guilty’ to both counts in the indictment set forth in case No. 56727 and that he now wishes to withdraw said plea before sentence. Affiant says that the said plea was entered by him under a misconception of the nature of the charge and through a misunderstanding as to its effect. Affiant says that he was under the mistaken impression that a plea of ‘guilty’ to both counts would subject him to a maximum sentence of one to seven years in the within case, together with the sentence that might be imposed upon him in case No. 57425 in this court, where he was indicted for the same type of offense as the one in the present case. Affiant further says that ■since entering the plea he has been able to obtain new ■evidence which, in his belief, would create a valid defense to the charge in the indictment, and sincerely requests this court to allow him to have his day in ■court and submit his matter to a jury.

“Affiant further says that his rights have been prejudiced by his entering of the plea under mistake and misapprehension and in justice to himself and the state of Ohio he should be given the opportunity of a fair trial under our constitution and laws.” (Signed and sworn to before a notary public.)

The affidavit of defendant Virgi reads as follows:

“Angelo Virgi being first duly sworn deposes and says that on the - day of December, 1947, he entered a plea of ‘guilty’ to all counts in the indictment set forth in case No. 57425 and that he now wishes to withdraw said plea before sentence. Affiant says that the said plea was entered by him under a misconception of the nature of the charge and through a misunderstanding as to its effect. Affiant says that he was under the mistaken impression that a plea of ‘guilty’ “to all the counts would subject him to a maximum sentence of one to seven years in the within case.

‘ ‘ Affiant further says, that since entering the plea he has been able to obtain new evidence which, in his belief, would create a valid defense to the charge in the indictment and sincerely requests this court to allow 'him to have his day in court and submit his matter to a jury.

“Affiant further says that his rights have been prejudiced by his entering of the plea under mistake and ■misapprehension and in justice to himself and the state of Ohio he should be given the opportunity of a •fair trial under our Constitution and laws.” (Signed .and sworn to before notary public.)

The state did not file any pleadings or affidavits traversing the allegations of defendants’ affidavits, and did not offer any evidence to contradict the allegations contained in defendants’ affidavits.

On January 14, 1948, the court, without receiving •any evidence on the matter at issue, overruled the motions and sentenced defendants to the Ohio State Reformatory at Mansfield. Exceptions were duly noted and the causes are now here on appeal. A stay of execution was granted in both cases and the defendant Dottore has been at liberty on bond while the defendant Virgi has been confined in the county jail since the time sentence was imposed.

The bill of exceptions is very brief, containing only-arguments of counsel and the remarks of the court. Prior to the hearing on the motion, the trial court had' tentatively arranged to permit defendants to withdraw their pleas of “guilty” and to enter their pleas of “not guilty” but, as appears from the record,, upon the arguments of the prosecuting attorney made-to the court in a private telephone conversation, the-court upon charges made by the prosecuting attorney in the private telephone conversation determined not to permit the defendants to withdraw their pleas. This clearly appears from the remarks of the court set forth in the bill of exceptions wherein the court stated in part:

“At the time Mr. Firestone [then counsel for defendants] was in my office, I discussed the matter with Mr. DeMarco over the telephone. Mr. DeMarco held' the same view then that he has expressed here today. I was concerned for fear that I might be unjustly depriving these men of some rights. I was concerned about that and I expressed concern in the presence of Mr. Firestone and over the phone to you. Tentative-arrangements were made to accept the withdrawals but within five minutes after that was done you were again, Mr. DeMarco [assistant county prosecutor]' in conference with we on the telephone and again urging the propositions which were earlier urged, and further urging that what ivas being done was an ef~ fort to jockey the court around, jockeying for position, — an effort to realize in the first instance up to this time, a hope that the court would permit these sentences to be served concurrently; and when it appears that was improbable, a subterfuge was used, a ■device was brought into play in order to take the cases away from this court and before some other court at some later time.” (Emphasis ours.)

Counsel for defendants, who has since withdrawn from the case, in oral statement to the court said, in part:

“Now the state of Ohio in no manner has been jeopardized. Its rights have in no way been jeopardized. They have never had any witnesses in court * * *. No one in any way, shape or form is inconvenienced. I say to the court this has not been done for the purpose of delay. If the case had been carried over without entering a plea, the last day the court was on the bench, or second last day, the case still would not have been reached in its normal list on this docket. As a matter of fact I don’t even see any witnesses here today, if your honor please. These men, I feel, and I will frankly say to your honor, these defendants not following my advice in this matter, I wish to withdraw as their counsel and I. am asking leave of court to withdraw. ’ ’

The principal assignment of error is that the court abused its discretion in denying the motions to withdraw the pleas of guilty and accord the defendants a trial on the merits.

It is well settled in Ohio that the granting of a motion to allow a defendant to change his plea from guilty to not guilty rests within the sound discretion ■of the trial court.

In 12 Ohio Jurisprudence, 262, Section 249 it is stated: * ;

“The withdrawal of pleas is a well-recognized practice in Ohio. As a general rule the matter of permitting the withdrawal of a plea rests in the discretion of the court, and no general rule can be laid down as to when a defendant will be permitted this privilege. While it is conceded that a change of plea rests in the discretion of the court, such discretion should not be exercised arbitrarily, but should rest upon settled and irreversible principles of justice, with a due regard to existing conditions.” (Emphasis ours.)

In 22 Corpus Juris Secundum, 639, Section 421, it is stated:

“Where accused pleads guilty, he may be allowed to withdraw the plea and substitute another, or a demurrer or motion to quash. Generally speaking, however, accused who has entered a plea of guilty does not have an absolute legal right to withdraw it; he can do so only with permission of the court; and the granting or refusing of permission rests in the sound, legal, or judicial discretion of the court before-which the plea was entered.”

In the case of State v. Shafer, 71 Ohio App., 1, 47 N. E. (2d), 669, it was held in paragraph one of the-syllabus:

“1. Abuse of discretion on the part of a trial court does not necessarily mean ulterior motive, arbitrary conduct, or a willful disregard of the rights of a litigant. It may mean the failure to apply the principle of law applicable to a situation, if thereby prejudice results to a litigant.” (Emphasis ours.)

In the instant case it appears that the motions to withdraw the pleas were timely made in that they were filed before the day set for sentence and before-the time when the cases would have been normally reached on the regular trial docket of the court. This-being the case, the ends of justice could not be defeated by a trial by jury.

It appears further that the statements contained in the affidavits supporting the motions filed by defendants were unchallenged by any counter-affidavits or by any evidence. We have particular reference to-the claim that since the plea of guilty, the defendants had discovered new evidence which in their belief would constitute a valid defense to the charges in the indictments. The record indicates that only argument was heard by the court in the course of which-counsel for defendants stated in substance that the defendants were dissatisfied with his representation of them and desired to employ other counsel and proceed to trial. The record here shows that new counsel appeared for the defendants who now urge that defendants are entitled to be tried upon the merits.

In view of these facts the statement contained in-the case of Brooks v. State, 17 Ohio App., 510, at page-520, would seem to have particular application:

“If the accused was guilty as charged, how could the ends of public justice be defeated by his trial by a jury? And if not guilty as charged, why should he-suffer a penalty for a crime of which he was not guilty under the law? Neither the interests -of the community nor of the state could have suffered by permitting him to change his plea, for, if guilty, the-state would have had the right to establish the fact,, and, if innocent, or guilty of a lesser crime than that charged, opportunity should have been granted to-him to test the issue raised by the indictment. Although stern and unrelenting are the demands of the-law against those who disregard and violate it, the-security of society lies in the orderly administration-of the law in the interest of public justice. If the-statements contained in the motion are to be taken as true, and they are unchallenged by any counter affidavit or other proof on the grounds specifically referred to, why should he be denied the right of trial by jury, to have his guilt or innocence determined by a jury, as in other cases?”

Again quoting from the case of Brooks v. State, supra, at page 522, the court quotes with approval from 2 Bishop’s Criminal Procedure (2 Ed.), Section 798, wherein it is laid down:

“The practice of withdrawing one plea to make way for another, heretofore explained, is especially common where the defendant has improvidently pleaded guilty. In most of our courts, where leave to substitute not guilty is asked in a reasonable time, it is granted pretty nearly as of course. Yet it is sometimes refused; and being a matter of judicial discretion, relief will not ordinarily be granted in the upper court, but it will be in a case of abuse of the discretion, even where, after a defendant has pleaded guilty, has moved in arrest of judgment, and his motion has been overruled, the court, if justice requires, will allow a substitution of not guilty for guilty.

“The same doctrine is to be found in 8 Ruling Case Law, 111, Section 77, and Underhill, Criminal Evidence, Section 237.”

In the instant case we are impressed by the obvious fact that no evidence was taken on the issues presented by the affidavits of the defendants; that the court’s judgment undoubtedly was influenced by telephone conversations with the assistant county prosecuting attorney. Such a procedure in our opinion is not conducive to the orderly administration of justice. All arguments and discussions with opposing counsel should, we believe, be had in open court in the presence of the defendants upon the hearing of their motions.

This clearly is not a matter of accepting the words or claims of the defendants against the words of the trial court. The members of this court have the highest respect for the learned trial judge and the prosecuting attorney and we feel that there is no issue of veracity here involved. Our view simply is that whatever may have transpired when the pleas of “guilty” were entered, the defendants, on the basis of their affidavits supporting their motions were entitled to have a hearing in open court on the issues of fact raised by their motions. This right or privilege was not accorded to them. Instead, the court, without evidence, decided that defendants were, as appears from the record, guilty of a subterfuge and that “a device was brought into play in order to take the cases away from this court and before some other court at some later time,” the court stating: “I came to that conclusion myself.”

It is one thing to come to such a conclusion upon evidence offered but an entirely different proposition to reach such a conclusion through urgings and argument by the prosecuting attorney made ex parte by telephone. The first method contemplates a judicial decision based upon evidence — the latter merely a process of reasoning without evidentiary support.

An examination of the authorities generally indicates that the discretion of the court in a matter such as this should be moved by an orderly and proper presentation of the issues of fact upon which the decision must rest. Therefore, we conclude in the instant cases that the court, in determining the motions, failed to apply the principles of law applicable to this situation and, therefore, the defendants were deprived of their day in court on the motions to change their pleas. This constituted an abuse of judicial discretion.

For the reasons stated, the judgments are reversed for error of law in refusing to grant the motions timely made to withdraw the pleas of guilty and to enter pleas of not guilty and the causes are remanded with instructions to grant such motions.

Judgments reversed.

Morgan and Skeel, JJ., concur.


author: Carpenter, J.

text:
    The State of Ohio, Appellee, v. King, Appellant.
    (No. 4310
    Decided June 21, 1948.)

      Mr. Louis B. Young, for appellee.

      'Mr. Eldon H. Young, for appellant.
   Carpenter, J.

Denial of his challenge to the array is the only complaint now urged by the defendant, appellant herein, to the judgment of the Municipal Court of Toledo convicting him on a second-offense charge of practicing medicine in Toledo without a license, in violation of Section 12694, General Code, under which imprisonment may be a part of the punishment.

He having duly demanded and been granted a trial by jury, the court summoned the jurors as provided in the Municipal Court of Toledo Act, Section 1579-301, General Code, a part of which, provides: “Jurors in the Municipal Court shall be chosen and summoned in accordance with a rule of said court.”

Section 1579-300, General Code, requires, among other things, that jurors in both civil and criminal cases in the Municipal Court of Toledo shall be “electors of the city of Toledo, ’ ’ and rule 27 of the court furnishes the details how they shall be selected and summoned. It was stipulated in the record that the trial jury was drawn in accordance with such statute and the rule.

However, the defendant says this was to him prejudicially erroneous in two respects:

That the drawing should have been done as pointed out in Sections 13424-1 and 13424-2, General Code, which say in part:

Section 13424-1. “In prosecutions before a magistrate, when imprisonment is a part of the punishment, if a trial by jury is demanded, the magistrate * * * shall certify to the clerk of the Court of Common Pleas of the county that such prosecution is pending before him * # #.”

Section 13424-2. “Thereupon the clerk shall draw from the jury wheel containing the names of persons selected to serve as petit jurors in the Court of Common Pleas in such county, twenty names which shall be drawn and counted in a like manner as for jurors in the Court of Common Pleas. The clerk shall forthwith certify the names so drawn, to the magistrate, who, thereupon shall issue to any constable, chief of police or marshal in the county, a venire * * *.”

By Section 13422-1, General Code, “judges of other courts inferior to the Court of Common Pleas,” which include judges of the Municipal Court of Toledo, are “magistrates,” within the meaning of the statutes above quoted.

As these sections were enacted subsequently to the Municipal Court of Toledo Act, it is contended that, by implication, they have repealed the procedure provided for in that act. Such sections were a part of the Code of Criminal Procedure enacted in 1929, 113 Ohio Laws, 125*

In Holub v. State, 127 Ohio St., 34, 186 N. E., 708, it was contended that Section 1579-519, General Code, a part of the Municipal Court of Akron Act, which, like Section 1579-300, provides that all cases “shall be tried to the court unless a trial by jury is demanded by a party,” was repealed by implication by Section 13442-4, General Code, which is also a part of the Code of Criminal Procedure and requires a waiver of trial by jury to be in writing and in a certain form.

In that case the court said in paragraph two of the syllabus:

“The provisions of Section 13442-4, General Code, relating to the waiver of jury trials in criminal cases, do not repeal or supersede the provision found in the Akron Municipal Court Act (Section 1579-519, General Code) requiring a trial to the court, unless a trial by jury be demanded.”

The following reasoning by Judge Jones in the opinion, at page 37, has equal application in the instant ease:

‘ ‘ The Akron Municipal Court Act was not expressly repealed when the new Criminal Code was later adopted; and we can discover no legislative intention to repeal it. This view is reinforced not only by the fact that there was no repeal of the earlier municipal act, but by the additional fact that in the later legislation there was expressed an intention not to disturb the general jurisdiction conferred by law upon municipal courts. This legislative intention in respect to such courts is manifested by the passage of Section 13422-6, General Code, which is a part of the original act. That section, under the caption ‘Jurisdiction of Municipal Courts/ reads as follows: ‘No provision of this chapter shall be construed to affect, modify, or limit the jurisdiction conferred upon the municipal courts by law.’

“The general and special statutes under consideration are not necessarily irreconcilable; they only differ in the method of making demand for jury trials, and, since there was no express repeal of the former statute in that respect, we are of opinion that there was no repeal thereof by implication. Repeals by implication are not favored unless they are necessarily implied. Village of Leipsic v. Wagner, 105 Ohio St., 466, 138 N. E., 863.”

To the same effect are State v. Partanen, 67 Ohio App., 248, 36 N. E. (2d), 422; Village of New Miami v. White, 73 Ohio App., 12, 53 N. E. (2d), 664.

It might also be said that the legislative intent not to disturb established procedure in municipal courts was later evidenced when Section 11419-39, General Code, was enacted as part of the “Jury Code,” 114 Ohio Laws, 193, 204, although generally that act relates to civil procedure. That section is:

“Nothing in this act contained shall contravene or affect any section of the General Code relating to jurors in the inferior courts in any county of the state.”

It is further contended that the jury by which defendant was tried, being made up wholly of electors of the city of Toledo and not from the whole of Lucas ■county, violated Section 10 of Article I of the Constitution of Ohio, which says:

“In any trial, in any court, the party accused shall be allowed * * * a speedy public trial by an impartial jury of the county in which the offense is alleged to ¡have been committed; * * *.”

Prior to the 1912 amendment of this section, the words, “or district,” followed the word, “county.” While in that form it was before the Supreme Court in State v. Fendrick, 77 Ohio St., 298, 82 N. E., 1078, which originated in the police court of the city of Columbus. Such court had jurisdiction of offenses ■“committed within the limits of the city, or within four miles thereof.”

In that case, a jury being drawn, the defendant “challenged the array upon the ground that she resided, and her offense was alleged to have been committed, beyond the corporation limits of the city, while the jury was drawn wholly from within the limits of the city. ’ ’

The Circuit Court held that the overruling of the ■challenge was error in that “the trial district and the jury district must be the same,” and reversed the conviction. The Supreme Court reversed the judgment of the Circuit Court and affirmed the conviction, saying in the syllabus:

“A police court of a city exercising its jurisdiction to try a person charged with a misdemeanor committed •outside of the city limits, but within four miles thereof, does not err in overruling a challenge to the array of jurors, the challenge being upon the ground that they 'have been drawn wholly from within the limits of the -city. ’ ’

In the opinion, Judge Shauck, quoting the portion of ■Section 10, Article I of the Constitution, said :

“The primary purpose of this provision is to fix the place of trial. All that is required as to the jury is that it shall be impartial. As to the place of trial, the •substance of the right conferred is that ‘it shall be in the county or so near thereto that the accused may have the benefit of his own reputation and that of his witnesses, and that he may, with as much certainty and .as little expense and delay as are practicable, secure the attendance of his witnesses’ (State, ex rel., v. McCarty, Judge, 52 Ohio St., 363). The impartiality of the jury is required by the statute under which this panel was drawn. ’ ’

The Sixth Amendment to the Constitution of the United States, which was evidently followed in drafting the Ohio provision under consideration, provides for “a speedy and public trial, by an impartial jury •of the state and district wherein the crime shall have been committed.” In Ruthenberg v. United States, 245 U. S., 480, 62 L. Ed., 414, 38 S. Ct., 168, a conviction 'by a jury drawn from a division of the district was ■sustained, such jury having been authorized by law, •as is done by Toledo Municipal Court procedure.

From the foregoing it appears that the jury impaneled was authorized by law, and nothing is presented to indicate that it was not “impartial” within the meaning of the Constitution. Hence, the judgment is affirmed.

Judgment affirmed.

'Conn and Fess, JJ., concur.


author: By the Court.

text:
    In re Will of Thomas.
    (No. 4162
    Decided June 8, 1948.)

      Messrs. Herbert & Dombey and Mr. Edwin MTuttle, for appellant.

      Mr. John H. Summers, for appellee Harry B.. Holmes, trustee.

      Messrs. Wright, Harlor, Purpus, Morris & Arnold,. for appellees Ray G. Thomas, Clara J. Mann, Millie K. Lester and Margaret Cassidy.
   By the Court.

This is a motion submitted by Harry B. Holmes, trustee, and Ray G. Thomas, Clara J. Mann,. Millie K. Lester and Margaret Cassidy, legatees and. remaindermen, appellees herein, for an order dismissing the appeal herein, for the reason that the order appealed from is not a final order. In the event the foregoing motion should be overruled, these appelleesmove for an order dismissing the appeal on questions-of law and fact and retaining it on questions of law-only. The order appealed from is an order of the Probate Court making findings for and allowances to-Harry B. Holmes for services for the year 1947 as a fiduciary and general manager of the trust’s main-business and also findings for and allowances to certain others for services to the trust.

The record discloses that no notice of the hearing •on the application was served on any of the beneficiaries under the trust. Section 10501-56, General ■Code, affords an appeal on questions of law from any final order of the Probate Court “in the manner and ■within the time provided by law for the prosecution •of such appeals from the Court of Common Pleas.”

Section 12223-3, General Code, provides for the review of “every final order, judgment or decree of a •court * * * unless otherwise provided by law.”

A final order is defined in Section 12223-2, General Code, as “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, or upon a summary •application in an action after judgment.”

After quoting the above definition of a final order, the Court of Appeals for Hamilton county, in Ryan v. Kroger Grocery & Baking Co., 56 Ohio App., 469, 11 N. E. (2d), 204, said:

“* * # this court’s jurisdiction is limited to reviewing such orders of the Common Pleas Court as finally ■determine the rights of the parties in actions in so far at least as the pending proceeding is concerned. This court affirms, reverses, or modifies such orders depending upon the state of the record. The Constitution does not contemplate that the court will entertain an appeal to decide a moot, abstract, or academic dispute. 'The order that is a sufficient predicate for an appeal must relate to the real issue or dispute between the ■parties, not merely to a collateral issue raised in the ■course of the proceeding.

“The distinction between an interlocutory order, from which no appeal may be taken, and a judgment or final order, from which an appeal may be taken, is clearly stated in 2 American Jurisprudence, 860 et seq. At page 862, it is said:

“ ‘In other words, a final judgment is one which, operates to divest some right in such a manner as to put it beyond the power of the court making the order to place the parties in their original condition after the expiration of the term; that is, it must put the case out of court, and must be final in all matters within the-pleadings.’ ”

Upon analyzing the Appellate Procedure Act, it will be seen that although the General Assembly has empowered the Courts of Appeals to review every final1 order, judgment or decree, it has not empowered the-appellate court to review interlocutory orders. It is the whole cause that is appealed. No provision is-made for a partial appeal and a remand to the trial court upon determination of the specific question or issue. The order under consideration was neither am order determining an action and preventing judgment nor an order in a special proceeding. The Probate-Code provides a right of review in the Probate Court-Section 10506-34 et seq., General Code, requires that the trustee file an account of his expenditures to which* exceptions are authorized. Section 10506-39, General Code, provides for a hearing on the account and the-exceptions. Only after the Probate Court has thus-passed on the account under favor of Sections 10506-38- and 10506-39 is there finality and a determination of the subject under consideration.

The instant order was no more special than any other order which the Probate Court is authorized! to make under authority of the Probate Code. The order fixing the compensation for the services of the-others is of the same character as that making allow.ance to Harry B. Holmes.

In the case of In re Estate of Hamilton, 67 Ohio App., 242, 36 N. E. (2d), 439, in discussing what constitutes a final order, Judge Guernsey said at page 246:

“It must be presumed that the words ‘order, decision, or judgment’ as used in the last-quoted clause of Séction 10501-56, General Code, as amended, in connection with the subject matter of appeal, are used in their usual and ordinary sense in connection with the subject matter, and, it not being expressly otherwise provided, comprehend only such orders, decisions and judgments as are final in their nature. This interpretation of these words as used, is in accord with the long established practice in Ohio under which only orders final in their nature are reviewable, and it must be presumed that if the Legislature had intended to change this practice and make interlocutory orders the subject of review it would have unequivocally so stated. ’ ’

In the case of Equitable Securities Co. v. McDonald, 14 Ohio App., 56, the Court of Appeals for Franklin county said:

‘ ‘ A final order or judgment under the statute is one disposing of the whole case or some separate and distinct branch thereof. # # * Jurisdiction of the appellate court is now provided for by Section 6, Article IV of the Constitution, which gives jurisdiction to review ‘judgments’ of a Court of Common Pleas, and so forth. * * *

“The general policy of the law is opposed to separate reviews upon interlocutory orders. This is not only a policy of Ohio but seems to be a general policy throughout the American states. A contrary policy would undoubtedly tend greatly to prolong litigation. ’ ’

A decree or order which leaves further proceedings necessary before the rights of the parties can be determined is an interlocutory order and not a final order. Towner v. Wells, 8 Ohio, 136; Kelley v. Stanbery, 13 Ohio, 408; Teaff v. Hewitt, 1 Ohio St., 511, 59 Am. Dec., 634; and Kerosene Lamp Heater Co. v. Monitor Oil Stove Co., 41 Ohio St., 287.

We are, therefore, of the opinion that the order appealed from is an interlocutory order and not a final order.

The second branch of the motion is in the alternative form and, therefore, requires no further consideration.

The motion to dismiss is sustained.

Motion sustained.

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


author: Wiseman, P. J.

text:
    Brewer, Appellant, v. Brewer, Appellee.

      (No. 1967
    Decided April 9, 1948.)

      Messrs. Oldham, & Oldham, and Mr. Carl W. Norman, for appellant.

      Mr. Horace W. Baggott and Mr. J. Farrell Johnston, for appellee.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery county. The plaintiff was granted a decree of divorce on the ground of adultery. The court set aside the separation agreement entered into between the parties and made a division of property on a different basis than that stipulated in the agreement.

The assignments of error filed by the plaintiff, appellant herein, all relate to the action of the trial court in granting to the defendant, appellee herein, property of a greater value than that stipulated in the separation agreement.

The validity of the separation agreement which is authorized by Section 8000, General Code, is controlled by the provisions of Section 7999, General Code, which contains the positive limitation that such an agreement shall be subject “to the general rules which control the actions of persons occupying confidential relations with each other.” The trial court is under ■no compulsion to approve the agreement of the parties relative to the division of the property. 14 Ohio Jurisprudence, 479, Section 83. The court will approve such agreement if the evidence shows that the provisions of the agreement are fair, just, and reasonable. See Hoagland v. Hoagland, 113 Ohio St., 228, 148 N. E., 585; Garver, Exr., v. Miller, 16 Ohio St., 527; In re Estate of Shafer, 77 Ohio App., 105, 65 N. E. (2d), 902; Stark v. Stark, 8 Ohio Law Abs., 287.

The trial court found that the agreement entered into between the parties “was not fair, reasonable, or .just to the defendant in view of all the circumstances of the case and of the parties at the time the agreement was made.”

The evidence in this case shows that the marriage took place January 25, 1941; that the plaintiff entered the armed services on May 23, 1944, and was sent overseas on August 27, 1945; and.that he returned on May •5, 1946, and on and after May 12, 1946, continued to live with the defendant until the separation on March 7, 1947. It is not disputed that a child which was born to the wife on November 19, 1946, was not her husband’s child. A positive disclosure of this fact was made to the husband, the plaintiff herein, on March 5, 1947. On the evening of that day, the husband and the wife began a discussion of their marital difficulties ■growing out of the fact of the admission on the part ■of the wife on that evening that her husband was not the father of her child. This discussion continued without letup from six p. m. on March 5 until late afternoon on March 7 without either party having any sleep or rest. On March 6 the husband took his wife to the home of his parents where he required her to make an admission relative to the parentage of the child. Later that evening, he called her parents to-their home and required her to make such admission to them. Still later in the evening, he called the father of the child to their home and secured an admission-from him that he was the father. At this time, the-plaintiff secured a large hunting knife, which he had' brought with him from service in the Philippine-Islands, and placed it near the throat of the father of' the child, stating that plaintiff ought to cut the father’s head off and made other statements to the effect that plaintiff ought to kill both his wife and the father of the child. Still later in the evening,, the plaintiff, together with the father of the defendant,, drove to the home of the father of the child and disclosed the facts to his wife, who returned with them to the Brewer home where the discussion was continued until the early morning of March 7. The testimony disclosed that during the discussion the husband spoke in a loud voice, paced around over the house and was in a very angry mood. In the early afternoon of March 7, the husband and wife went to the office of' the attorney for the husband and after several hours conference the separation agreement was executed. The evidence further showed that the matter of division of property was not discussed between the parties and other members of the family. On the morning of March 7, a property settlement was discussed between the parties at which time the husband stated to the-wife that she could not expect, to get anything out of the property and that he would allow her to take her clothes and would “give her $5,000 as a gift.” On-March 8 the husband made a transfer of property to-the wife of the value of $5,000, according to the agreement.

The evidence further showed that from six o’clock on the evening of March 5 until the contract was signed in the office of the attorney for the husband at about •5:00 p. m. on March 7, the wife was not given an opportunity to seek legal advice and had not discussed .her legal rights with any other members of the family. During this time she was not out. of the presence of her husband except for about an .hour on the evening of March 6, when he drove to the home of the father of the child. The husband at no time advised her or intimated to her that she should seek independent advice.

The evidence showed that, from a date shortly after the marriage until the separation, the wife kept a ■strict accounting of all money received by either her or her husband and all money expended. The wife was ■employed a substantial portion of the time during the marriage relation. The evidence showed that husband and wife had a common understanding whereby both contributed all their earnings to a common fund and, after the expenses were paid, investments were made in their joint names. Inasmuch as postal savings certificates could not be issued in their joint names, such certificates, in the amount of $2,500 each, were taken in their individual names. Upon the date of the separation there stood in the individual name of the wife assets of the value of $2,525, in the individual name of the husband, $2,650 and in their joint names, $14,309.69. There was evidence introduced on behalf of the defendant, which was not seriously disputed, from which the trial court could reasonably conclude that the defendant had contributed, to the sum total of ■assets possessed by the husband and wife, approximately $8,430 which consisted of her personal ■earnings and $800 in cash which she contributed at the time the residence was purchased in their joint names. The residence was later sold together with some household goods at a profit of $2,277.24. The-wife contributed $1,200 or more in the way of allotment checks which she received while her husband was in the service. Other property was sold in which she-possessed a joint interest. She testified that they regarded all their property as jointly owned, which fact was not disputed by the husband.

In view of this evidence, we are of the opinion that the trial court was justified in making its finding that the division of property stipulated in the separation agreement was not fair, reasonable and just to the defendant. Furthermore, we are of the opinion that an undue advantage was taken of the defendant in requiring her to enter into the separation agreement at the-end of a two-day discussion df their marital difficulties, during which time she had little or no opportunity to-discuss her property rights with other members of her family or to seek independent legal advice. We can easily understand the emotional disturbance of both, the husband and wife during the discussion because of the disclosure of adulterous conduct on the part of the-wife. However, such misconduct on the part of the-wife did not relieve the husband of fair dealing with-respect to any property settlement. Because of the dominating influence which a husband exercises over the wife, transactions between them to be valid, particularly as to the wife, must be fair and reasonable- and voluntarily and understanding^ made. Such transactions are closely scrutinized to prevent the-wife from being unfairly treated by the improper conduct of the husband, and whenever the advice of counsel would be of real assistance to the wife in deciding whether to enter into an agreement with the husband,, it is his duty to advise her to seek such counsel. 26 American Jurisprudence, 876, Section 269; 123 A. L. R., 1505.

In Snyder, Assignee, v. Buckeye State Bldg. & L. Co., 26 Ohio App., 166, 160 N. E., 37, the facts were similar to those presented in the instant case. The •court on page 170 stated:

“Upon the trial of the case in the common pleas an unusual state of facts developed. Job E. Renick and Grace F. Renick were married in 1902. Immediately prior to March 6, 1912, the wife confessed to the husband that she had been guilty of adultery. On the day mentioned the husband, having first cut the telephone wire leading from the family residence, and then by a trick deprived the wife of the use of the horse, which she might have used to leave the house to confer with friends or counsel, went with his attorney to the family residence and there induced the wife to sign the separation agreement now relied upon. The evidence shows that she was not informed of her rights in the premises, nor given any opportunity to consult with •others who might be informed. The contract of separation was therefore not entered into fairly.”

In the instant case, the trial court set aside the ■property settlement and decreed to the husband $2,650, being the property held by him in his individual name, and decreed to the wife $2,525, being the property held in her individual name, and divided equally between them the property held jointly by them. It is •contended by the plaintiff that this division was not ■equitable in view of the wrongful conduct of the wife. Without condoning the misconduct of the wife, we are of the opinion that the trial court was acting within its authority under Section 11993, General Code,, which, in part, provides:

“When the divorce is granted by reason of the aggression of the wife, the court may adjudge to her such share of the husband’s real or personal property, or both, as it deems just * *

Because of her aggression, the wife in this case was-denied any right to alimony. That is one of the penalties which she must pay for her misconduct. However, the law of this state permits the court to give to the wife a share of the husband’s property, even though the divorce is granted to the husband because of the wife’s aggression.

In the case at bar, a portion of the property decreed to the wife can in reality be considered to beber own property. No effort was made by the wife to-create a separate estate. Any separate estate she-might have created during the marriage relation became part of their joint property. Under all the circumstances and the evidence in this case, we are of the opinion that the judgment of the trial court was fair, reasonable and just, and that the division of the-property between the parties was just and equitable.

As we find no error in the record, the judgment is affirmed.

Judgment affirmed.

.Miller and Hornbeck, JJ., concur.


text:
    City of Cleveland et al., Appellants, v. Division 268, Amalgamated Assn. of Street Electric Railway & Motor Coach Employees of America, et al., Appellees.
    (No. 21051
    Decided March 15, 1948.)

      Mr. Robert J. Shoup, for appellant.

      Mr. Dan Duffy and Mr. Bernard Friedman, for appellees.
   Hurd, P. J.

This matter comes to this court at this time upon the motion of plaintiff, the appellant herein, for a temporary restraining order “in accordance with: the prayer of such plaintiff’s petition in case No. 587223 of the Common Pleas Court,” which case has been docketed in this court on appeal on questions of law from the final order of the Common Pleas Court dismissing the petition in such action.

The form of application requires reference to the-original petition filed February 12, 1948, the prayer of which is as follows:

“Wherefore, plaintiff prays that, pending final hearing and determination of the issues hereof, a restraining order be issued forthwith against the defendants,, and each and all of them, their officers, agents, members and employees and of others to whom knowledge-of this order should come, restraining and enjoining them:

“1. From interfering in any manner whatsoever with the plaintiff’s officers, supervisors, agents, employees and representatives in the operation of plaintiff’s car lines, and from interfering by force, intimidation or threats, in any manner whatsoever with those-of plaintiff’s employees carrying out the orders and regulations of plaintiff’s supervisors, officers and agents:

‘ ‘ 2. From protecting, aiding or abetting or assisting-any one in the commission of said acts:

“3. From counselling, advising, directing or ordering any of plaintiff’s employees to violate the provisions of Ohio General Code Sec. 17-8:

“4. From intimidating, coercing or unlawfully influencing plaintiff’s employees from remaining in or from assuming their required public employment and from inducing, coercing or intimidating plaintiff’s employees to stop their work or to abstain in whole or in part from the full faithful and proper performance of their duties:

‘.‘5. From interfering with the egress from plaintiff’s cars; and that upon final hearing, said order be made permanent, and for such order and further relief as the plaintiff may be entitled within the premises.”

At the time of the filing of the petition in the Com- • mon Pleas Court, the appellant filed affidavits in support of its application for a temporary order, and on February 12, 1948, the court made an entry allowing a temporary restraining order as prayed for. Thereafter the case came before the trial court for trial on the merits on March 2, 1948, at which time at the conclusion of the opening statements the defendants moved the court for judgment, which motion was granted, the injunction denied and the petition dismissed.

It is from the final order of the court that this action is here upon appeal, and the temporary restraining order is prayed for pending decision on appeal.

While injunction in Ohio is to a certain degree statutory, it has always been recognized to be equitable in its nature and subject to all the rules of courts of chancery. It is frequently denominated as “the strong arm of the law” or “of equity” and is often characterized as ‘ ‘ summary, ’ ’ high or ‘ ‘ extraordinary. ’ ’ See 21 Ohio Jurisprudence, 990, Section 7.

Injunction is essentially a preventive remedy designed to guard against future injury rather than to afford redress for wrongs already suffered.

Concerning the effect of change in conditions, we find the following in 21 Ohio Jurisprudence, 993, Section 10:

“The principle that the extent and nature of the relief granted by a court of equity will be determined by the facts as they exist at the time of the decree, and not, as at law, according to those existing at the inception of the litigation, applies to actions for injunctions with particular force by reason of the fact that injunctions must operate in the future. Accordingly, even though there may have been a right to an injunction as matters stood at the institution of the action in which it is sought, an injunction will not be granted if at the time of the hearing conditions are so changed that no unlawful act is threatened * * *. This rule applies not only to changes occurring while the action is pending in the court of original jurisdiction, but also to those which occur while it is pending in an appellate court.” (Emphasis ours.)

Generally speaking, injunctions and restraining orders should be granted only to prevent injustice and unnecessary and irreparable injury, and a party applying for an injunction must show a clear right or a well defined right. These observations, with respect to the legal principles applicable to injunctions generally,. have equal application to temporary injunctions or restraining orders.

The purpose of a preliminary or temporary injunction or restraining order is to preserve the status quo of the parties and their rights pending final adjudication of the cause upon the merits.

Section 11876, General Code, in respect to the allowance of a temporary injunction, reads as follows:

“When it appears by the petition that the plaintiff is entitled to the relief demanded, and such relief, <or any part of it, consists in restraining the commission or continuance of some act, the commission or continuance of which, during the litigation, would produce great or irreparable injury to the plaintiff, or when, during the litigation, it appears that the defendant is doing, or threatens or is about to do, or is procuring or suffering to be done, some act in violation of the plaintiff’s rights, respecting the subject of the action, and tending to render the judgment ineffectual, a temporary order may be granted restraining such act. When specially authorized by statute, such order also may be granted. ’ ’

Upon analysis of this section, it will be noted that under the statute it must be made to appear “that the defendant is doing, or threatens or is about to do * * * some act in violation of the plaintiff’s rights, respecting the subject of the action,” to justify the court in' granting an order restraining such acts.

Upon the hearing of the case in this court a copy of the affidavits was presented as evidence precisely in the same form as those filed with the trial court on February 12, 1948, with the exception that the affidavits before us are verified as of March 4, 1948. The only additional affidavit is that signed by Donald C. Hyde, also dated March 4, 1948, in which are cited certain statements alleged to have been made by one Thomas P. Meaney, a defendant and appellee herein, as quoted in the public press of the city. No other evidence was offered.

The record before us indicates that since the issuance of the temporary restraining order on February 12, 1948, there have been no overt acts or acts of.interference such as those complained of in the petition of the appellant.

Although the defendants were in open court, the appellant did not call them for cross-examination or produce any evidence of any kind excepting the affidavit quoting newspaper statements, and the affidavits originally filed on February 12, 1948.

The newspaper statements are at best hearsay and cannot be accepted by us as evidence.

In view of the complete failure to produce evidence showing or tending to show facts or conditions existing at the time of the application, indicating any wrongful or illegal acts, or any threatened injury such as that complained of in the petition, we find that appellant has failed to establish a clear right to injunctive process at this time.

The trial court, as is disclosed by the record, upon evidence then produced, issued a temporary restraining order because of the emergency then existing. There is no evidence presented to this court tending to show that, since such time, the normal operation of the system under the direction of the transit commission is in any way being interrupted or interfered with by the defendants, and, until there is an indication of overt acts such as were in the first instance presented to the trial court, the extraordinary remedy of injunction should not be used.

We are further constrained to this view by reason of the fact that, at the time of the hearing in this court, counsel for defendants, after conferring with the defendants, gave positive assurance in open court that there would not be any interference by them in any manner whatsoever with the plaintiffs, officers, agents •or employees in the operation of the streetcar lines or ¡system of the appellant.

Entertaining these views, we dismiss the application for temporary restraining order, subject to the right of the appellant to make a new application at any time in the event there should be any change in conditions, which would warrant issuance of the injunctive ¡process.

Judgment accordingly.

Morgan and Skeel, JJ., concur.


text:
    The State, ex rel. Merrill, Appellee, v. Moore, Appellant.
    (No. 1968
    Decided April 17, 1948.)

      Mr. Richard L. Withrow, for the motion.

      Mr. Walter L. Connors, contra.
   By the Court.

This cause is submitted on motion ■of plaintiff, appellee herein, to dismiss the appeal on the ground that defendant, appellant herein, failed to •comply with the provisions of Section 13459-3, General Code, which requires the assignments of error and briefs of the appellant to be filed with the transcript.

This is an appeal on questions of law. The charge •against the defendant was for nonsupport. The transcript was filed in this court on January 23, 1948. The assignments of error and briefs were not filed until March 22, 1948.

The provisions of Section 13459-3, General Code,, that an appellant’s brief and assignments of error shall be filed with the transcript, are mandatory, and a motion to dismiss an appeal for noncompliance therewith will be sustained. State v. Parnell, 56 Ohio App., 77, 10 N. E. (2d), 18; State v. Jarcho, 65 Ohio App., 417, 30 N. E. (2d), 444; State v. Smith, 33 Ohio Law Abs., 612, 35 N. E. (2d), 968; City of Columbus v. Balzan, 38 Ohio Law Abs., 141, 49 N. E. (2d), 592; State v. Barber, 44 Ohio Law Abs., 381, 65 N. E. (2d), 669; State v. Davis, 47 Ohio Law Abs., 415, 69 N. E. (2d), 532; State v. Hailey, 49 Ohio Law Abs., 159, 75 N. E. (2d), 603; State v. Trimmer, 80 Ohio App., 545, 76 N. E. (2d), 896.

The motion to dismiss the appeal will be sustained.

Motion sustained.

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


author: Matthews, P. J.

text:
    The State of Minnesota, Appellant, v. Karp, Appellee.
    (No. 6972
    Decided October 11, 1948.)

      Messrs. Peck, Shaffer & Williams, for appellant.

      Messrs. Burns & Friedman, for appellee.
   Matthews, P. J.

This is an appeal from a judgment. for the defendant, following the sustaining of a demurrer to the plaintiff’s amended petition. The grounds of the demurrer were (1) that the court had-no jurisdiction of the subject of the action, (2) that the plaintiff had no legal capacity to sue, (3) that, there was a defect of parties plaintiff, and (4) that the amended petition did not state facts constituting-a cause of action. The order sustaining the demurrer-does not disclose-the respect in which the court found - the amended petition defective.

The plaintiff seeks to recover a judgment for the-amount of an income tax plus interest and penalty. In the amended petition, it is alleged that the defendant during the year 1940 received income in the amount of $15,761.01 from business transacted within the state of Minnesota; that under the law of that state-then in force incomes from business transacted within that state by both residents and nonresidents were • taxable according to a schedule of rates set forth; that-receivers of such incomes were required to file returns - thereof, and, upon failure so to do, the Commissioner - of Taxation was required to prepare and file a return, for the delinquent taxpayer; and that such return-should be prima facie correct and valid and the taxpayer had the burden of establishing its incorrectness or invalidity in any action in respect thereto. It is-alleged also that in addition to all other methods au-. thorized for the collection of the. tax it could be collected in an ordinary action at law or in equity by the-state against the taxpayer.

It is set forth that the defendant failed to make-a return of this income for 1940; that in 1944 the Commissioner of Taxation prepared and filed a return-showing the defendant’s tax on the income was-$973.49; that the penalty for the delinquency was. $48.67; and that the accrued interest was $224.84, making a total of $1,247. The prayer is for judgment for $1,022.16.

In it§ amended petition, the plaintiff expressly disavowed any claim that the defendant “is or was at anytime a resident of the state of Minnesota,” and there is no allegation that he was either actively or constructively within the borders of that state at any time in 1940 or thereafter.

The second and third grounds of demurrer raise the questions of the right and capacity of the state of Minnesota to maintain this action, and whether it authorized its institution. In view of the express allegation in conformity to the law of that state that the state is authorized to maintain the action, that question seems to us foreclosed on a demurrer, and, in view of the fact that the amended petition is verified by an assistant attorney general of that state and was filed by reputable members of the bar of Ohio, the intention to file it must be presumed. There is a presumption that a regularly admitted attorney has authority to represent the client for whom he appears. 5 American Jurisprudence, 307, Section 80.

The amended petition shows that if a chose in action exists, it is owned by the plaintiff, which as owner it, of course, has a right to sue to enforce in any state or federal court having jurisdiction of causes of action of that kind. It, therefore, is our conclusion that the-second and third grounds of demurrer are not well founded.

The first ground of the demurrqr raises the question of the jurisdiction of the court to entertain an action by a sister state to enforce against a defendant the amount of a tax levied by it.

Plaintiff’s counsel concede that it has been frequently stated in judicial opinions that courts of a state will' not assist other states in enforcing their revenue laws and will not enter a judgment upon a tax claim1 which has not been previously reduced to judgment by the levying state. The law deduced from these judicial' opinions is stated in 51 American Jurisprudence, 868 et seq., Section 993, as follows:

“Taxes are imposts collected for the support of the government, and not debts in the ordinary sense of that term, and the principles which prevent one state or country from enforcing the penal laws of another state or country have generally been construed to apply to. foreign revenue laws, and to preclude a state or its collecting officer from maintaining in the courts of another jurisdiction an action for the collection of taxes due to it. The rule has been stated to be that even if a tax upon a nonresident is held to be a personal liability, he cannot be sued upon it except in the courts of the state -in which it was assessed. It has accordingly been held that an action to recover a tax imposed in one state will not be entertained by a federal court sitting in another state. Likewise, upon the theory that the revenue laws of one state have no force in another, it has been held that no action can be maintained by one state or political or municipal subdivision thereof in the courts of another state for the recovery of taxes alleged to be due the former. A distinction, however, must be drawn between an action in the courts of another state or jurisdiction to ■enforce a tax liability and an action in such other courts upon a judgment recovered in the courts of the taxing state for taxes. A judgment of another state is not to be denied full faith and credit in state and federal courts merely because it is a judgment for taxes. Moreover, it is to be noted that the Supreme Court now regards the question whether one state must enforce revenue laws of another state to be an open question. It is indicated that a suit to recover taxes due under the statutes of another state may be-allowed as a matter of comity without regard to the-compulsion of the full faith and credit clause.”

And, while conceding that in the Restatement of Conflict of Laws it is stated that “no action can be maintained by a foreign state to enforce its license- or revenue laws, or claims for taxes” (Section 610 and Comment), plaintiff’s counsel contend that the rule-never had a firm foundation and was based on obiter dicta rather than upon cases requiring for their decision the application of the rule.

It is undoubtedly true that the rule is not supported by many cases in which its application was the ratio decidendi. Whatever authority it has is based largely upon its wide currency for almost two centuries. A comprehensive review of the origin and history of the use of the putative rule is found in the case of State, ex rel. Oklahoma Tax Comm., v. Rodgers, 238 Mo. App., 1115, 193 S. W. (2d), 919, to which reference is made, rather than prolonging this opinion by ourselves tracing its history. We do this more readily because we have concluded that the1 decision of the instant case does not require us to decide whether the rule-ever had any validity or, having had validity in its time and place, has lost its validity because inapplicable to present-day conditions in the relations between the states.

In the recent cáse of Milwaukee County v. M. E. White Co., 296 U. S., 268, 80 L. Ed., 220, 56 S. Ct., 229, the court was called upon to decide whether a United States district court, sitting in Illinois, had jurisdiction of an action upon a judgment for taxes rendered by a court of the state of Wisconsin. The court pointed out the difference between an action upon a judgment for taxes and an action upon a claim for taxes, and then proceeded to decide that an action upon a judgment for taxes could be maintained in the United States courts sitting in a state other than the state levying the tax. The court pointed out that it was not a question of jurisdiction of the court, but rather a question as to the merits of the claim, saying at page 272:

“The objection that the courts in one state will not entertain a suit to recover taxes due to another or upon a judgment for such taxes, is not rightly addressed to any want of judicial power in courts which are authorized to entertain civil suits at law. It goes not to the jurisdiction but to the merits, and raises a question which district courts are competent to decide. See Illinois Central Rd. Co. v. Adams, 180 U. S., 28; General Investment Co. v. New York Central Rd. Co., 271 U. S., 228, 230; Becker Steel Co. v. Cummings, ante, p. 74.

“That defense is without merit if full faith and credit must be given the judgment. But even if full faith and credit is not commanded there- is nothing in the Constitution and laws of the United States which requires a court of a state to deny relief upon a judgment because it is for taxes. A state court, in conformity to state policy, may, by comity, give a remedy which the full faith and credit clause does not compel. ’ ’

It is when we look to the merits of the alleged cause of action that we find the amended petition fatally defective.

It is fundamental that jurisdictions of all governments are geographical or territorial. Any attempt to exercise extraterritorial jurisdiction constitutes an invasion of another sovereignty. Jurisdiction can only be exercised over either persons, activities or property. The jurisdiction of a state, acting either through its executive, legislative or judicial' department, or by the combined action of two or more of such departments, must be confined to persons, property and activities within its boundaries, and any attempt to control persons or things beyond such boundaries is ineffective and void for want of power and violates the due process clause of the Fourteenth Amendment to the Constitution of the United States. No state had any power to govern except within its own borders before the ratification of the Constitution of the United States, and that instrument did not extend the power of the' states. On the contrary, it restricted their power.

In 14 American Jurisprudence, 418 et seq., Section 223, it is said:

"It is a fundamental rule of international jurisprudence that every state or nation possesses an exclusive sovereignty and jurisdiction within its own territory. A consequence of this maxim is that no state can by its laws and no court, which is only a creature of the state, can by its judgments or decrees directly bind or affect property or persons beyond the limits of that state. In other words, a court created within and for a particular territory is bound in the exercise of its powers by the limits of such territory. No process of any state court has any effect or efficiency beyond the boundaries of the state under the law of which it was issued. Any attempt by one state to give to its courts jurisdiction beyond its own limits over persons domiciled or property situated in another state is a usurpation of authority, and all judicial proceedings in virtue thereof are held utterly void. A statute, however comprehensive, should not be construed as conferring such jurisdiction.”

This limitation upon the power of a state is so fundamental that it would be difficult, if not impossible, to find a case, the decision of which turned upon a dispute on that broad principle, but the American Law Institute deemed it the part of wisdom and logic to state in Section I of its Restatement of Conflict of Laws that “no state can make a law which by its own force is operative in another state.” That this limitation upon state power applies to the power to tax has been held in too many cases to justify the attempt to collate them.

In Shaffer v. Carter, 252 U. S., 37, 49, 64 L. Ed., 445, 40 S. Ct., 221, the Supreme Court of the United States said:

“Governmental jurisdiction in matters of taxation, as in the exercise of the judicial function, depends upon the power to enforce the mandate of the state by action taken within its borders, either in personam or in rem according to the circumstances of the case, as by arrest of the person, seizure of goods or lands, garnishment of credits, sequestration of rents and profits, forfeiture of franchise, or the like * * *.”

Let us recur to the allegations of the amended petition to ascertain the basis for the exercise of the power to tax the income of the defendant and the extent of that power. We find that the only claim on that subject is that in 1940 the defendant received income “derived from business transacted within the state of Minnesota.” It is not alleged that it was net income, although the statute quoted in the amended petition purports to impose a tax only on net income. It is not .alleged that the net income received by defendant or .any other property of the defendant was located in Minnesota at any time in 1940, or at any other time. Then when there is added to these omissions the failure to allege that defendant was ever physically in Minnesota, and the express allegation that at no time was he a resident of that state, what is shown upon which the power and authority of the state could: operate? The defendant was not there and there was-no property there at that time and neither was there in 1944, when the state sought to compel the payment..

The facts in State of Colorado v. Harbeck, 232 N. Y., 71, 133 N. E., 357, present a stronger case than do-those in the instant case. In that case, a resident of Colorado died testate while temporarily in New York.. His will was admitted to probate in New York and his-estate entirely administered there. After the executrix had accounted and the estate had been distributed' in New York, the state of Colorado instituted proceedings in its courts to assess a transfer tax under its laws upon the estate and notice was given by mail to all defendants, as provided by law. The inheritance tax laws of Colorado provided that upon the-death the tax should be due at once and remain a lien-on the property transferred until paid. The Colorado-statute provided that all legatees and executors should be liable for the tax. The tax was assessed as’upon the-estate of a resident of Colorado and notice of the-assessment given to all defendants. The estate consisted of intangibles none of' which was ‘ ‘ physically ’ ’’ present in Colorado. Upon failure of the legatees- and executrix to pay the tax, the action was instituted by the state of Colorado in the Supreme Court of New York.

The Court of Appeals in that case, stated in the-sixth paragraph of the syllabus:

“Where letters testamentary were issued in this-state upon the estate of a decedent and the estate was-settled without providing for the payment of a transfer tax in the state of Colorado, of which state decedent was a resident, an action cannot be maintained on its behalf in the courts of this state to recover the tax. ’ ’

And, at page 83, the court said:

“Although a liability to pay the tax exists under the Colorado statute, jurisdiction and power to enforce the liability in the New York tribunal must be •established. Under the due process clause of the United States Constitution, where the delinquents are nonresidents of the taxing state and outside its jurisdiction, so that- no personal liability or enforcible duty may be established as against them and where the property involved is without the taxing state so that no res exists upon which' the taxing state may impose a lien, the state is powerless to collect the tax in its «own courts and powerless to invoke the aid of a sister state to collect its revenue. (Pennoyer v. Neff, 95 U. S., 714; Dewey v. Des Moines, 173 U. S., 193; City of New York v. McLean, 170 N. Y., 374, 387, 388; Matter of Maltbie v. Lobsitz Mills Co., 223 N. Y., 227.) ”

In the Harbeck case, the testator was a resident of ■Colorado at the time of his death and, as his entire estate consisted of intangibles, it had its situs in Colorado if the maxim, mobilia seqmmtur personam, was applicable. In the Colorado action to assess the tax all the forms of judicial procedure were complied with including actual notice by mail, but no actual service was made upon defendants, no appearance entered by them and no property sequestered. On those facts the Court of Appeals held that the decree of the Colorado •court assessing the tax imposed no personal liability and no cause of action was stated in the petition, on such decree, filed in the New York court.

It seems to us that the amended petition in the ■ease at bar discloses even more clearly that Minnesota 'had nothing within its borders upon which to exercise its power. The defendant at no time was a resident ■of the state. It is not alleged that he was ever in the state. No property was sequestered. The only suggested basis for the exercise of its sovereignty is that in 1940 defendant had received income from business transacted in Minnesota. Where or in what manner he received it is not shown. In this situation in 1944, the Commissioner of Taxation, an administrative officer, without personal service, assessed this tax which under the law was made prima facie evidence against the defendant. That, it seems to us, was an attempt by Minnesota to extend its sovereignty beyond its boundaries and control and bind the defendant. No such power resides in any state and an attempt to so extend its power is void and violates the Fourteenth Amendment to the Constitution of the United States. To give effect to such an attempt would deprive the defendant of property without due process of law.

We are of the opinion that the amended petition fails to show a cause of action enforceable in Ohio.

For these reasons, the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

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