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    Squire, Supt. of Banks, Appellant, v. The Guardian Trust Co. et al., Appellees.

      (No. 20317
    Decided January 18, 1947.)

      Mr. Hugh 8. Jenkins, attorney general, Messrs. Davis (& Young and Messrs. Krueger, Gorman & Davis, for appellant.

      Messrs. Thompson, Hine db Flory, for appellees R. H. Bishop, Jr., O. W. Prescott, A. L. Stone and G-. G-. Wade.

      Messrs. Jones, Day, Gockley & Reavis, for appellee William Gh Mather.

      Messrs. Squire, Sanders & Dempsey, for appellees Dean, Grill, McIntosh, Patterson, Petrequin, Rossiter and Whelan.

      Messrs. Baker, Hostetler & Patterson and Messrs. Dorn & Merry, for appellee Edward S. Rogers.

      Messrs. Garfield, Baldwin, Jamison, Hope db TJlrich, for appellee Tillotson.

      Messrs. Grossman, Carter, Hamilton & Bosenman, for appellee Marc J. Grossman, executor of estate of Louis J. Grossman, deceased.

      Mr. Clinton DeWitt, for appellee Brooks.

      Mr. Boscoe M. Ewing, for appellees Robinson and Edgar D. Rogers.

      Mr. Frank H. Pelton, for appellees House & Monks.
    • Messrs. Andrews, Hadden & Putnam, for appellee Hanna.

      Messrs. Boyd, Brooks & Wickham, for appellqe Daley.

      Messrs. McKeehan, Merrick, Arter & Stewart, for appellee Eide.

      Mr. W. Edmund Peters, for appellee Bowman.

      Mr. Henry H. Pleasant, for appellee Kline.
   Ross, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Cuyahoga county, in which demurrers to certain causes of action in the fourth amended petition were sustained, and those causes of action dismissed, the plaintiff not desiring to plead further thereon. •

The fourth amended petition contains 97 causes of action. In the brief of the plaintiff, appellant herein, it is stated:

“I. The Court of Common Pleas sustained the demurrers to causes of action Nos. 1 to 19 inclusive, 21 to 32 inclusive, 35, 37 to 49 inclusive, 51, and part of cause of action No. 50 (47 in all) on the ground that the causes were barred by the statute of limitations. Since the superintendent did not desire to amend, the Court of Common Pleas rendered judgment in favor of defendants on these causes of action. The first issue before this court, therefore, pertains to the statute of limitations.

“II. The Court of Common Pleas also sustained the demurrers to causes of action Nos. 20, 33, 34 and 59 to 97, inclusive (42 in all) on the ground that the superintendent had not alleged facts sufficient to state a cause of action. The plaintiff did not desire to amend causes of action Nos. 20, 33, 34 and 97, and the Court of Common Pleas rendered judgment in favor of defendants on these four causes of action. The second issue, therefore, concerns the sufficiency of the allegations set forth in causes of action Nos. 20, 33, 34 and 97.

t “III. The Court of Common Pleas in its opinion started that causes of action Nos. 59 to 96 inclusive (38 in all), relating to the plans and policies for the administration of trust estates, were prematurely brought because no damage was alleged.to have occurred. To remedy this objection, plaintiff made application for leave to file a supplemental petition setting forth facts pertaining to damage which occurred after the commencement of the action. This application was overruled, and, after the superintendent had stated that he did not wish to amend any of these 38 causes of action, judgment was rendered in favor of defendants on causes of action Nos. 59 .to 96 inclusive. This refusal to permit the filing of the supplemental petition constitutes the basis of the third issue.

“IV. The Court of Common Pleas, as we have said, sustained demurrers to part only of cause of action No. 50, and overruled them as to the balance of that cause of action. The right to.sustain demurrers to a part only of a cause of action raises the fourth issue.

“V. A fifth and minor issue arises because the Court of Common Pleas granted a demurrer of defendant, Mather, on the ground that all of the causes of action did not affect him. ’ ’

It is probably unnecessary to state that the task presented to the trial court' and now to this court assumes herculean proportions. The'points raised in the briefs and arguments are legion. Any attempt to tender in this opinion any detailed discussion of the several contentions of the parties, or even to mention all of them, would he of little benefit to anyone and unduly extend this opinion beyond the scope permitted by considerations of propriety, or the necessity for a fair statement of the premises upon which the conclusions reached herein are based.

Justification is found also in the able and extended consideration given the problems presented by the trial court.

For these reasons, such conclusions will be stated in a more or less categorical manner. In the main, the outline adopted by the plaintiff will be followed in passing upon the assignments of error advanced by him.

I.

Directing attention to the causes of action included in division No. I, as set out supra, the trial court sustained demurrers to the causes of action therein included, upon the ground that it appears from the face of the petition they are barred by the statute of limitations.

The plaintiff places his claim of error in such ruling upon a number of premises. These premises in turn involve a number of questions which will be first considered.

Is more than one statute of limitations involved?

Without at this point passing upon the validity of the several causes of action, it may be considered that the plaintiff in his allegations has relied for relief both upon remedies provided by the common law and the statutes of Ohio. In the consideration of his pleading-certain general rules applicable to demurrers are considered.

(1) The plaintiff is not bound by any theory for relief he may assert. He is bound only by the facts he alleges in his petition and if those facts state any action in law or equity, the court is compelled to extend such relief, regardless even of his prayer for same. Schaefer v. First Natl. Bank, 134 Ohio St., 511, 520, 18 N. E. (2d), 263; Triff, Admx., v. Natl. Bronze & Aluminum Foundry Co., 135 Ohio St., 191, 205, 20 N. E. (2d), 232, 121 A. L. R., 1131; State, ex rel. Masters, v. Beamer, 109 Ohio St., 133, 150, 141 N. E., 851.

When in doubt, a plaintiff may state his cause of action in the alternative. Sicard v. Kremer, 133 Ohio St., 291, 296, 13 N. E. (2d), 250.

So, even if the plaintiff mistakenly disclaims charges of fraud or negligence, if the facts alleged state a cause of action in fraud, negligence or equity, or a cause of action created by statute, the court must disregard his “theory” and even his prayer, and upon demurrer give his petition any proper construction sustained by the facts.

(2) In construing such petition upon demurrer the plaintiff is entitled to consideration of not only the proper and well-pleaded factual 'allegations, but also to the fair, reasonable, and favorable intendments and inferences arising therefrom, except when jurisdictional factual allegations are involved. Guardian Life Ins. Co. v. Veser, 128 Ohio St., 200, 190 N. E., 405; Parletto v. Indus. Comm., 140 Ohio St., 12, 42 N. E. (2d), 153; Humphries v. Wheeling Steel Corp., 132 Ohio St., 263, 7 N. E. (2d), 230; Ohio Elec. Ry. Co. v. U. S. Express Co., 105 Ohio St., 331, 137 N. E., 1.

(3) The nature of the action, whether in law or equity, is determined by the character of the principal relief, justified by the facts alleged in the petition. Nordin v. Coulton, 142 Ohio St., 277, 51 N. E. (2d), 717; Borton v. Earhart, 144 Ohio St., 334, 59 N. E. (2d), 37.

(4) It is an equitable action if it is necessary to determine first whether the plaintiff is entitled to equitable relief before legal redress can be granted. (Id.)

These general principles, it may appear, will be more applicable when considering the causes of action in the light of a demurrer predicated upon the claim that no cause of action is stated. However, they are at this point pertinent, in view of the several claims of plaintiff as to the nature of these causes of action, and the several theories advanced by plaintiff which he asserts are sustained by his several allegations of fact.

Bearing these general principles of 'pleading in mind, a solution of the questions presented is undertaken.

The facts alleged in the causes of action justify only a claim for money. That is the relief sought and the only principal relief warranted by the allegations of the petition.

(5) It is not necessary to resort to equity to obtain payment of the damages caused by the violation of rights alleged. Accounting is ancillary to the main relief.

(6) These causes of action are not representative causes of action by either shareholders, depositors, or other creditors. They are causes of action specifically provided for by statute.

. This is an action by the Superintendent of Banks. He is the only plaintiff. That capacity is given him by the statutes of this state.

“The office of Superintendent of Banks is of statutory creation and the powers and duties of the incumbent thereof must likewise be statutory or they do not exist.” National City Bank v. Guardian Trust Co., 137 Ohio St., 279, 282, 28 N. E. (2d), 763; State, ex rel. Stanley, v. Cook, Supt. of Banks, 146 Ohio St., 348, 66 N. E. (2d), 207. At page 376 of the latter case, it is stated:

“The duties of the Superintendent of Banks in the liquidation of a bank are similar to the duties of the Superintendent of Building and Loan Associations in liquidating such associations.

“In the case of State, ex rel. Merion, Supt. of Bldg. & Loan Assns., v. Unemployment Compensation Bd. of Review et al., 142 Ohio St., 628, 53 N. E. (2d), 818, Judge Zimmerman said at page 630: ‘The superintendent, in liquidating the Columbian Building & Loan Company, was not acting in a sovereign or governmental capacity. His status as liquidator was similar to that of an ordinary receiver or trustee, and his acts were for the benefit, and in the interests, of creditors, depositors and shareholders of the company and other affected persons, and not for the benefit of the state of Ohio in any direct sense. ’

“In the case of State, ex rel. Fulton, Supt. of Banks, v. Bremer, Admx., 130 Ohio St., 227, 198 N. E., 874, this court held:

“ ‘The state of Ohio, while a nominal party in an action brought by the Superintendent of Banks against the stockholders of a bank to enforce the super-added liability imposed by Section 3 of Article XIII of the Constitution of Ohio, has no proprietary or pecuniary interest in the result of "the action, and in such action is not suing in its sovereign capacity. ’ ’ ’

See, also, State, ex rel. Fulton, v. Coburn, 133 Ohio St., 192, 12 N. E. (2d), 471.

The Superintendent of Banks in this action asserts the rights of the bank, shareholders, depositors, and other creditors existing at the time he assumed control. Section 710-95 and Section 710-67, General Code; State, ex rel. Stanley, v. Cook, Supt. of Banks, supra; State, ex rel. Fulton, Supt. of Banks, v. Bremer, Admx., supra; Warner, Supt., v. Mutual Bldg. & Invest. Co., 128 Ohio St., 37, 43, 190 N. E., 143.

(7) If a cause of action of the bank, a shareholder, depositor, or other creditor is barred, then such cause of action is barred when now asserted by the Superintendent of Banks. State, ex rel. Fulton, v. Bremer, supra; State, ex rel. Fulton, v. Coburn, supra.

Section 710-95, paragraph (7), General Code, provides :

“The Superintendent of Banks, upon taking possession of the business and property of any bank, shall have, exercise and discharge the following powers, authority and duties, without notice or approval of court, but subject to the provisions of this chapter, to wit: * * *

“7. To institute and maintain against the directors, officers or employees of such bank, or any of them, any suit or action which such bank, its shareholders or creditors might institute and maintain. ’ ’

Section 710-67, General Code, provides:

“Any director of a bank who shall knowingly violate, or who shall knowingly permit any of the officers,, agents or employees of a bank to violate any of the provisions of this act (Sections 710-1 to 710-189, General Code) shall be held liable in his personal and individual capacity for all damages which the bank, its stockholders, or any other person shall have sustained in .consequence of such violation. ’ ’

(8) No personal, individual action of any shareholder, depositor, or creditor is here sought to be alleged. The general rights of these classes, which might, upon refusal of the ’Superintendent of Banks to act, be asserted in representative actions, through the intervention of equity, may now, by statute, be asserted through the Superintendent of Banks, and are so asserted under the provisions of the statute.

(9) The claim of the defendants, appellees herein— incidentally, that there is a misjoinder either of parties plaintiff or causes of action — is negatived by the joinder permitted by the statute.- (Section 710-95, paragraph 7, General Code.)

So, it not being necessary to resort to equity to obtain relief, the principal object of all the causes of action as developed by the facts alleged being to obtain a sum of money, and the relief of accounting being only ancillary, the causes of action stated are all actions at law.’

(10) Are these causes of action ex delicto, ex contractu, or statutory?

First, in order to bring the limitation within the 15-year statute applicable to contracts in writing, it is asserted by tbe plaintiff that, the oath taken by directors being reduced to writing, such statute applies. There is some authority sustaining the claim of liability based upon an implied promise (see 39 Columbia Law Review, 851) but that a contractual status is created by a contract in writing merely because of the directors’ oath as far as has been ascertained has no support. Neither the express written contract theory nor the implied promise theory presents a logical appeal or are warranted by the nature of and circumstances attending the taking of such oath.

(11) On the other hand, the weight of authority places the liability of directors upon two general grounds — Common-law liability for negligence or fraudulent misapplication of funds, and liability created by statute. Inglis v. Pontius, Supt. of Banks, 102 Ohio St., 140, 146, 131 N. E., 509; 39 Columbia Law Review, 851, supra; 77 A. L. R., 543 et seq.; 9 Corpus Juris Secundum, 231, 234, 235, 259.

(12) In State, ex rel. Lien, v. House, 144 Ohio St., 238, 58 N. E. (2d), 675, it is held in the second paragraph of the syllabus:

“An action against trustees of an express trust for loss of funds arising from a breach of trust involving tortious conduct such as bad faith, negligence and double-dealing, is one at law, the cause of action accrues, in the absence of undiscovered fraud, when the trusteeship as to such trustees is terminated, and the action is barred in four years by virtue of the provisions of Section 11224, General Code.”

(13) Where facts alleged fall short of establishing an express trust and the defendants have failed to exercise skill and prudence in caring for and investing the bank’s funds, a fortiori, such defendants are liable in tort for such dereliction, and Section 11224, General Code, stating a four-year limitation would apply to neglect of duty. There being no allegation of facts from which actual fraud could be inferred, the exception to-the operation of such limitation, mentioned in the last paragraph of the section, has no application.

(14) In those cases where acts of directors are alleged constituting violation of the statutes applicable to the operation of banks, the six-year statute of limitations (Section 11222, G-eperal Code) would apply.

So that as to all causes of action in which facts are alleged charging either a violation of such common-law duties or violation of the banking act, or both, the four-year or six-year statute would apply. See State, ex rel. Lien, v. House, supra (144 Ohio St., 238), at page 245.

(15) It is the general rule that the statute of limitations commences to run at the time the cause of action accrues. 25 Ohio Jurisprudence, 532. The cause of action accrues, in the case of torts, when the wrongful act is committed, and in case of statutory actions, when the violation of the statute occurs. 1 American Jurisprudence, 451, 452; Minster Loan & Sav. Co. v. Laufersweiler, 67 Ohio App., 375, 379, 36 N. E. (2d), 895; 83 A. L. R, 1204; 9 Corpus Juris Secundum, 245, Section 122.

The plaintiff advances several theories under which he asserts, first, a delay in the creation of the cause of action, and, second, that even though the cause of action has been created the statute of limitations is tolled.

These various reasons advanced by plaintiff for delaying the operation of the statute of limitations will be considered approximately in the order advanced.

(16) As a first reason, plaintiff claims “the statute does not run while the cause of action is concealed.”

There is some authority for that position outside Ohio and the original case in Ohio (Fee’s Admr. v. Fee, 10 Ohio, 469, 36 Am. Dec., 103) holding otherwise may be subject to some criticism. However, the Fee case has been followed and no sound reason now appears for changing a policy fixed in our jurisprudence. Howk v. Minnick, 19 Ohio St., 462, 466, 2 Am. Rep., 413; Williams v. Pomeroy Coal Co., 37 Ohio St., 583, 589; Minster Loan & Sav. Co. v. Laufersweiler, supra, at pages 378, 379; State, ex rel. Lien, v. House, supra, at pages 244, 245; 25 Ohio Jurisprudence, 597.

In some states applicable statutes of limitations are by express provision therein tolled until the discovery of the wrong. See Michelsen v. Penney, 135 F. (2d), 409 (N. Y.); Smith v. Lyle, 59 S. D., 534, 241 N. W., 512. In our own state, the statute is tolled in like manner in case of fraud and certain trespasses. (Section 11224, General Code.)

If the Legislature had deemed it expedient it could have so provided, either generally as to cases of concealed torts, or in the banking act as to wrongful acts of officers and directors. It has not done so, and the relief if it is extended should be furnished by legislative act, not by judicial legislation.

In State, ex rel. Lien, v. House, supra, at page 247 of the opinion it is stated:

“It is the policy of the law, as disclosed by our scheme of statutes of limitation of actions, to require actions which involve the alleged tortious conduct of a defendant to be asserted and prosecuted promptly unless concealment or undiscovered fraud on the part of the defendant is.found to exist, for which exceptions are usually made in the general plan for limitation of actions.” (Emphasis added.)

No exception has been provided covering mere concealment as distinguished from direct and specific allegations of fact showing fraud.

In State, ex rel. Papadopoulos, v. Indus. Comm., 130 Ohio St., 77, at page 80 of the opinion, 196 N. E., 780, it is stated:

“ ‘Though a person may not discover his injury' until too late to take advantage of the appropriate remedy yet this is said to be one of the occasional hardships necessarily incident to a law arbitrarily making legal remedies contingent on mere lapse of time.’ 17 Ruling Case Law, 832, Section 193.

“ ‘The fact that a person entitled to an action has no knowledge of his' right to sue, or of the facts out of which his right arises, does not, as a general rule, prevent the running of the statute, or postpone the commencement of the period of limitation, until-he discovers the facts or learns of his rights thereunder.’ 17 Ruling Case Law, 831, Section 193.

“ ‘The operation of the statute of limitations is not suspended or postponed * * * unless such an exception is. a rule of the statute. ’ 37 Corpus Juris, 986, Section 37. Courts can not engraft exceptions thereon.”

Facts. alleged showing mere concealment are not sufficient, therefore, to toll the statute.

(17) As a second reason it is contended by plaintiff that “the statute does not commence to run as long as directors are in control of the res.” That principle has 'been applied in some jurisdictions outside Ohio. 7 American Jurisprudence, 236; Michelsen v. Penney, supra, fourth paragraph of the headnotes; 83 A. L. R., 1206; 39 Columbia Law Review, 856. It has no support in Ohio, either by statute or judicial decision.

(18) Finding no controlling Ohio authority, no valid reason appears for here resorting to what in effect would be judicial legislation. The Ohio Legislature has enacted an extensive law governing the administration of banks. It has provided liability for directors for violation of the provisions of the act. It has provided for the powers and duties of the conservator upon assuming control over an insolvent bank. It seems clear that if the Legislature had considered it wise or expedient, it could have created responsibility in directors for wrongful acts which would continue during their dominion over the bank and could have, as is done in other states, permitted the Superintendent of Banks, in enforcing statutory or tort liability, to maintain an action based upon the theory of continuing liability.

In 39 Columbia Law Review, supra, at page 857, it is stated:

“However, some courts hold that the limitation runs only from the time when the wrongdoing directors relinquish their control. Two theories are advanced: one is that control per se amounts to a disability to sue, whether or not all the directors were directly involved; the other is that, although directors are not ordinarily trustees, the fact of control puts the corporation in the position of a cestui of a trust, disabled from making an adverse claim. Assuming that an independent director can effectively protect the corporation, it would seem that more than mere majority control should be required to delay the running of the statute.”

Certainly, shareholders on behalf of the bank could have maintained any action now available to the Superintendent of Banks. As has been heretofore stated, mere concealment is not sufficient in itself to toll the statute. See Hughes v. Reed, 46 F. (2d), 435, 441. In the absence of statute or controlling authority, the doctrine of continuing dominion will be rejected as a basis for tolling the statute of limitations. The same conclusion is well expressed in 25 Ohio Jurisprudence, 596. See, also, Powell v. Koehler, 52 Ohio St., 103, 39 N. E., 195, 49 Am. St. Rep., 705, 26 L. R. A., 480; Townsend v. Eichelberger, 51 Ohio St., 213, 38 N. E., 207.

(19) As a third reason th,e plaintiff claims that “the statute does not run for continuing wrongs until the directors leave office./’ If the facts alleged showed “continuing wrongs,” then there is no "need to toll the statute for the cause of action'would be a contihuing cause of action. There was undoubtedly a “continuous fiduciary duty” but the violations of that continuing duty were specific acts of wrongdoing, each of which gave rise to a cause of action in the bank, if the other necessary elements of a cause of action existed. Manifestly, a series of independent tortious acts may not be so merged as to constitute a continuous tort giving rise to an independent cause of action, cumulative to such separate torts. Such is not the theory of tort liability. It is difficult to distinguish the rationale of this conception from that of continued dominion. That there is a difference may possibly be found, but the factors which control this conception would seem to be little different in effect from those involved in the continued dominion theory.

The only facts which could justify the claim that a continuing wrong is alleged would be those applying to concealment of individual wrongful acts, under allegations of conspiracy, scheme, plan, or policy.

No cause of action is or probably could be stated (short of allegations of absolute fraud) based entirely upon concealment. Nor are we here concerned with a series of associated acts constituting a program of fraud. No support for this theory is found and the statutes are not tolled for “continuing wrongs.”

(20) There is another theory for tolling the statute which is included in the last claim of the plaintiff, but seems to'be somewhat different in principle from the principal claim and that is the “delayed damage” conception of a tort cause of action.

That theory is set out in Gillette v. Tucker, 67 Ohio St., 106, at page 132 of the opinion, 65 N. E., 865, 93 Am. St. Rep., 639. In effect, the theory is that if a wrongful act produces no immediate harmful result amounting to damage, but later if it can be alleged and proved that such wrongful act is the proximate cause of later loss, injury or damage to the plaintiff, his cause of action does not accrue until such loss, injury, or damage is actually suffered by plaintiff. While there are allegations in some of the causes of action in which the ultimate insolvency of the corporation is charged to be the proximate result of certain specific wrongful acts, the allegation of other facts, coupled with conditions, of which the court may take judicial notice, requires the conclusion that any direct, causal connection between such wrongful acts and the ultimate insolvency of the corporation can be developed only by the use of speculation and conjecture, far extending beyond the realm of reasonable inference.

While the case of Gillette v. Tucker, supra, has had a stormy career (see McArthur v. Bowers, 72 Ohio St., 656, 76 N. E., 1128, which was affirmed on the “doctrine of the dissenting opinion”) it, in the main, has been followed, but not to the extent of the full scope of the opinion noted. In Palmer v. Humiston, 87 Ohio St., 401, at page 407, 101 N. E., 283, 45 L. R. A. (N. S.), 640, it is apparent that it was the duty of the surgeon to remove the sponge and that the continued failure to perform that duty created a continuing contractual violation, which could easily furnish a proximate cause for the damage caused by its continued presence in the wounds. The theory of recovery was later clarified in Bowers v. Santee, 99 Ohio St., 361, 124 N. E., 238. In that case the court held in the syllabus:

“l.« The relation of surgeon and patient is one arising out of contract, express or implied. The surgeon'is not an insurer or guarantor, but does agree to exercise the average degree of skill, care and diligence exercised by members of the same profession in the given situation.

“2. In an action for a breach of the contract in such case, the statute of limitations does not begin to run until the contract relation is terminated. (Gillette v. Tucker, 67 Ohio St., 106, approved and followed; McArthur v. Bowers, 72 Ohio St., 656, disapproved.)”

At page 366 of' the opinion the interesting history of Gillette v. Tiicker is reviewed. It may be considered, however, that the syllabus just quoted states the principle of liability finally adopted, which manifestly has no application to the instant considerations at least as heretofore construed.

(21) The more logical rule, and the one consistent with general policy adverse to stale claims, is stated in United States v. Oregon Lumber Co., 260 U. S., 290, 299, 67 L. Ed., 261, 43 S. Ct., 100.

In Corsicana Natl. Bank v. Johnson, 251 U. S., 68, 64 L. Ed., 141, 40 S. Ct., 82, it is stated in the syllabus:

“The liability imposed upon the director under Rev. Stats., Section 5239, is direct, not contingent or collateral; the cause of action and the damages are complete when the money is loaned, and, while the damages may be diminished by what the bank collects from the borrowers, it is not obliged to proceed primarily against them.”

With a violation of the National Banking Act, no valid reason appears for applying a different rule where the damage is due to other misconduct of a director.

Delayed damage is ineffective to delay the accrual of a cause of action predicated upon a wrongful act. The damage resulting therefrom is immediate. That its effect may not be apparent is unavailing to delay the operation of the statute of limitations. This consideration has received attention hereinbefore, where it is determined that the law of Ohio does not recognize mere concealment of dereliction, not amounting to actual fraud, sufficient to toll the running of the statute of limitations. Nor can the contention that the directors failing, to negative the effects of the original tort thereby created a new cause of action based upon such alleged tort be sustained. If such were the case, each wrongful act would result in a double tort, one for the commission of the tort, one for omission to eliminate the effects of the first. If such were the case, the rule would apply to every tort. The limitation of such rule has just been considered.

(22) As his fourth and final attempt to avoid the operation of the statute of limitations, the plaintiff claims that “the- statute does not commence to run before insolvency, because it is brought on behalf of creditors whose remedy did not accrue prior to that time.”

That theory completely ignores the fact that, as heretofore stated, these causes of action are advanced by the Superintendent of Banks under the provisions-of the statutes for the benefit of shareholders, depositors, other creditors and the bank, and that if the depositors or other creditors had instituted such action in a representative capacity (no personal, individual claim being asserted, as distinguished from claims of all other' depositors) such action would have been for the benefit of the bank. See 50 A. L. R., 463, (note) Section 1.

The relation of a depositor to the bank is that of debtor and creditor. 5 Ohio Jurisprudence, 382.

“The contract between the bank and a general depositor is purely a legal one, and has nothing of the nature of a trust in it.” 5 Ohio Jurisprudence, 384; Squire, Supt. of Banks, v. Nally, 130 Ohio St., 582, 585, 200 N. E., 840; Union Properties, Inc., v. Baldwin Brothers Co., 141 Ohio St., 303, 47 N. E. (2d), 983; Busker, Clerk of Courts, v. Fulton, Supt. of Banks, 128 Ohio St., 485, 191 N. E., 752.

So that the representative action of a depositor, like that of any other creditor, is for the benefit of all other depositors and creditors, and ultimately shareholders; and, hence, for the benefit of the bank, and when the bank is barred by the statute of limitations, the creditors and depositas are barred. The depositors asserting general liability to them have no cause of action independent of that of the bank.

For these reasons, the ruling of the trial court upon the demurrer based upon the statute of limitations was correct, and its judgment upon the application of the statute of limitations to the causes of action set out in Division I is sustained.

The trial court, as will later herein appear, sustained demurrers to other causes of action based upon the predicate that such causes of action were invalid or ineffective in that facts were not alleged therein stating a cause of action. Insofar as the demurrers to such causes of action also included a demurrer upon the ground of the statute of limitations, the conclusions heretofore stated will apply as a ground for affirming the conclusions of the trial court upon the demurrer, although by it placed upon other grounds.

II.

The causes of action listed in Division II (No¡> 20, 33, 34, 59 to 97 inclusive) were held insufficient as not containing allegations showing the existence of causes of action. What has been said héreinbefore concerning the presumptions and rules applicable to a petition attacked by demurrer is probably more applicable in the consideration of this phase of the. controversy.

It is sufficient to say that such rules and guides are again considered in approaching a decision upon the adverse contentions of the parties as to the demurrers.

The causes of action here considered and the ruling of the trial court on the several causes of actioá will be considered in the order mentioned in Division II, as quoted from the plaintiff’s brief, supra.

(23) As to the 20th cause of action, the reasoning and conclusion of the trial court are approved. As has hereinbefore been stated (in connection with the delayed damage theory), a double tort cannot be created by simply charging failure to eliminate the effects of the wrongful act. The demurrer to the cause of action was properly sustained.

(24) As to the 33rd and 97th causes of action, they are in effect mere recapitulations of alleged torts involved in other causes of action, coupled with charges of conspiracy, or devising of a plan, or maintaining a policy, or the perpetration of a scheme, the purpose and object of such conspiracy, plan, policy, or scheme being to do certain unlawful acts previously or later alleged as specific violations of the obligations of the defendant directors.

Would the allegation that a certain act was done in conformity ’to a conspiracy, plan, policy, or scheme make that act tortious, if such act did not, independently of such conspiracy, plan, policy, or scheme, constitute a tort? No sound basis appears for such a claim in a civil action under the Code of Civil Procedure. If the torts alleged in the several causes of action caused damage to the bank, they did not cause any greater damage because they were the outcome of any conspiracy, plan, policy, or scheme.

No valid causes of action independent of those otherwise stated are contained in the 33rd and 97th causes of action and the demurrers thereto were properly sustained.

Obviously, also, insofar as the separate causes of action are inoperative by reason of the statute of limitations, insofar as such causes of action are included in these causes of action, Nos. 33 and 97, they would be similarly affected. The same result would apply where such included causes are held subject to attack by reason of insufficiency of allegation.

The ruling and conclusions of the trial court are approved as to the 34th cause of action. It is a composite of' causes of action No. 35 and No. 36, just as causes of action No. 33 and No. 97 are composites of previous causes of action.

Although causes of action Nos. 59 to 96, inclusive, are also included in plaintiff’s Division II, they are considered in plaintiff’s Division III, and will be treated under that heading herein.

III.

Causes of action Nos. 59 to 96, inclusive, mentioned in Division III, supra, were held by the trial court to be premature and a supplemental petition, incorporating the same causes of action, but alleging direct, immediate damage was tendered, after the opinion of the trial court upon the demurrers was filed, and refused. It would seem that the plaintiff acquiesces in the conclusion of the trial court that these original causes of action-are premature, in view of the absence of the allegation of facts, showing proximate damage from the wrongful acts alleged.

In any event, the action of the trial court upon the demurrers to these causes of action is sustained. No immediate losses are alleged therein.

(25) As to the right of the plaintiff to file a supplemental petition, other problems are presented. These have been considered fully by the trial court in its supplemental opinion, filed on January 9, 1946, in which the application to file the supplemental petition, and the supplemental petition itself were considered at length.

It is apparent, as stated by the trial court, that “it is impossible, without the infinite labor of detailed comparison and analysis of the basic pleading and its supplement to classify and relate the claims allowed to the appropriate causes of action in the fourth a'mended petition. ’ ’

There seems to be no attempt in the supplemental petition to isolate losses paid by the Superintendent of. Banks to appropriate causes of action.

No valid ground appears for holding that the trial court abused its discretion in refusing plaintiff the right to file such supplemental petition.

The reasons assigned by the trial court for such refusal appear sound and its refusal is a valid exercise of judicial discretion.

The action of the trial court upon such supplemental petition is approved and affirmed. In addition, what has been said as to the “delayed damage” theory may also be here applicable.

IV.

As to cause of action No. 50, mentioned in the IVth Division of “Issues,” the trial court sustained a demurrer to part' of such cause of action and overruled it as to part upon-the premise that such “cause of action” contained in fact a number of causes of action, some of which were subject to demurrer and others not.

(26) It is well recognized that a demurrer to a petition which contains more than one cause of action must be overruled if such petition contains a valid, cause of action. 31 Ohio Jurisprudence, 669.

Manifestly, a demurrer to a cause of action must be overruled if facts are alleged therein stating a valid cause of action, although other facts may be alleged in such cause of action which may be considered as stating a cause of action to which a demurrer would lie.

In sustaining in part the demurrer to cause of action No. 50, the trial court committed error prejudicial to the plaintiff. _ The effect of the action of the trial court was to separately state and number the causes of action alleged in cause of action No. 50, strike out part of them and overrule the demurrer as to the remainder.

V.

The causes of action included in Division V, supra, are in fact cause of action No. 36 and causes of action Nos. 52 to 58, inclusive.

(27) The trial court overruled the demurrers of all defendants except- that of William G. Mather to these causes of ’action and sustained the demurrer of Mather thereto, upon the ground of misjoinder of parties defendant.

It appears that the defendant Mather is not involved in causes of action Nos. 52 to 58, inclusive. He, therefore, relies upon Section 11309, General Code, as a basis for affirming the action of the trial court in sustaining his demurrer upon the ground of misjoinder. _ ' _

On the other hand, the plaintiff relies upon the provisions of Section 11306, General Code, as authority for the joinder of Mather in the fourth amended petition, although he is not charged in causes of action Nos. 52 to 58, inclusive.

That section, Mather claims, is modified and limited by Section 11307, General Code, which provides:

“The causes of action so united must not require •different places of trial, and, except as otherwise provided, must affect all the parties to the action.”

The plaintiff claims that Section 11307, General •Code, is inoperative to support the contention of Mather, because Section 11306, General Code, does “otherwise” pro,vide for joinder.

The pertinent parts of Section 11306, General Code, are:

‘ ‘ The plaintiff may unite several causes of action in the same petition, whether they are legal or equitable, -or both, when they are included in any of the following classes:

“1. The same transaction;

“2. Transactions connected with the same subject for action; * * *.”

Section 11255, General Code, provides:

“Any person may be made a defendant who has or -claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete ■determination or settlement of a question involved therein. ”

Really, two types of joinder are here involved— .joinder of causes of action and joinder of defendants in the same petition.

It is apparent the defendant Mather has no concern with the “subject for action” in causes of action Nos. •52 to 58, inclusive, but is concerned with other causes •of action considered, and if the conclusions of the trial ■court and those expressed herein are correct, this will still leave cause of action No. 36, in which Mather is still included. The ruling of the trial' court upon the Mather demurrer is, therefore, still a question for consideration.

Reference to Volumes 51 and 94 Ohio Laws shows that Section 11306 and Section 11307, General' Code, were consecutive sections in the respective acts. (51 Ohio Laws, 70; 94 Ohio Laws, 279.)

It is obvious, therefore, that Section 11307, General Code (Section 81 of the Act of 1853, 51 Ohio Laws), a part of the original Code of Civil Procedure, could not refer to the section immediately preceding it. The same situation is present in the act of 1900 (94 Ohio Laws) involving Section 5058 and Section 5059 of that act.

The trial court properly sustained the demurrer of Mather and its judgment in that respect is affirmed.

For the reasons given, therefore, the judgment of the Common Pleas Court is reversed as to cause of action No. 50, and otherwise affirmed, except that causes of action Nos. 36 and 52 to 58 are not involved in this appeal, since the ruling of the trial court was not adverse to the plaintiff. Such causes of action Nos. 36 and 52 to 58 are, therefore, not considered herein, except in connection with the demurrer of Mather.

The court is advised that the defendants, Edward S. Rogers, Arthur L. Stone and The National City Bank of Cleveland, as executor of the estate of Arthur L. Stone, have been dismissed from this action, and the judgment of this court will be framed accordingly.

Judgment accordingly.

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

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


source: Caselaw Access Project

author: Jackson, J.

license: Public Domain

text:
    Beach, Jr., Appellant, v. Beach, Appellee.
    (No. 1443
    Decided December 21, 1946.)

      Mr. O. W. Kennedy■ and Mr. Edward J. Myers, for appellant.

      Mr. Charles F. Schaber and Mr. Theodore L. Luts, for appellee.
   Jackson, J.

On December 30, 1942, Marvin C. Beach, Jr., filed a petition for divorce against Madeline Beacb, praying, among other things, that he be given the care, custody and control of the minor children during the pendency of the action, and that upon the final hearing he be granted a divorce and the full care, custody and control of the children. The cause is numbered 20814.

Without a hearing, the court granted the temporary care, custody and control of the children to Marvin C.. Beach, Jr., appellant herein.

On March 27,1943, Madeline Beach, appellee herein, filed an answer and cross-petition praying that the petition of plaintiff, Marvin C. Beach, Jr., be dismissed, and that she be awarded the custody of the three children, and for any other relief to which she may be entitled.

On June 15, 1943, by journal entry the trial court, after the case came on to be heard upon its merits, ■decided, upon further consideration and solely for the welfare of the three minor children of the parties, that ■the case should not be heard upon its merits, and that the former decree should be modified awarding to Madeline Beach the custody of the children when and if Madeline Beach established a home in Bucyrus sufficient for herself and the children to live comfbrtably.

On the 22nd of July 1943, Madeline Beach had apparently not been able to establish a home, and the ' children were still in the care, custody and control of the father, Marvin C. Beach, Jr., and living in the home of his parents wherein he resided in Bucyrus.

On July 22, 1943, sometime during the morning, Madeline Beach had a conference with Clarence U. Ahl, the Common Pleas judge of Crawford county, the same judge who ha.d presided over all matters in connection with case No. 20814 in the Common Pleas Court of Crawford county, Ohio, which case was the divorce action hereinbefore mentioned. As a result of that interview with Judge Ahl, complainant’s exhibit A was drafted by Judge Ahl and signed by him as • judge and delivered to Madeline Beach, which in substance gave the custody of the minor children to Madeline Beach from ten o’clock a. m., July 23, 1943, until seven o’clock p. m., July 26, 1943.

With that document Madeline Beach proceeded to the home of the' parents of Marvin C. Beach, Jr., where the children were living. The only adult person in the home was a sister, Jeanette Beach, to whom ex-Mbit A was shown through a screen in the door, and who refused to turn over the children. Whereupon, Madeline Beach went to Shelby, Ohio, to seek the advice of her attorney, Theodore L. Lutz. Meanwhile, Marvin O. Beach, Jr., and his sister, Jeanette Beach, went to the courthouse at Bucyrus, Ohio, to interview Judge Ahl. That interview, in addition to being featured by the obscene and vile language used toward Judge Ahl by Marvin C. Beach, Jr., clearly demonstrated that both the sister, Jeanette Beach, and Marvin O. Beach, Jr., knew and understood the contents, of complainant’s exhibit A, even though there is some-claim that Marvin C. Beach, Jr., could not read. Marvin O. Beách, Jr., left the courthouse with a clear understanding of what the order required, except that he was in complete disagreement with the order of the judge, as well as the efforts of his own counsel in-his behalf. All of those matters occurred before noon of July 22,1943.

Meanwhile, Madeline Beach and her attorney, Lutz, contacted Judge Ahl with reference to the divorce matter and Lutz went along with Madeline Beach to the home on her second visit of that day. Lutz, with the order in his hand, knocked on the door, presented the order to Marvin C. Beach, Jr., and without any delay Marvin C. Beach, Jr., started a fight in which he. was considerably assisted by Ms father, Marvin CL Beach, Sr., and perhaps by his mother and sister, Jeanette. Lutz in no wise did any striking and adopted a defensive attitude of trying to hold everything in check. The fight lasted about 15 or 20 minutes. Meanwhile, Madeline Beach attempted to contact official help over the telephone, but without success.

All the evidence conclusively shows that Lutz was severely beaten and mauled.

At once they came back to the courthouse and conferred with Judge Ahl and exhibited the beating which Lutz had received, and which is clearly demonstrated in complainant’s exhibits B, C, D and E.

Whereupon Judge Ahl filed with the clerk a journal entry containing the order known as complainant’s exhibit A, with this modification: July 26 was changed to July 28. A further order was filed certifying the matter of the custody of the minor children to the Juvenile Court of Crawford county.

Whereupon Madeline Beach filed with the clerk written charges alleging disobedience by Marvin C. Beach, Jr., and Marvin C. Beach, Sr., of the order of the court directing that Madeline Beach have custody of the children 'from July 23, 1943, ten a. m., to July 26, 1943, seven p. m.; and alleging that in performing the disobedience Marvin C. Beach, Jr., and Marvin C. Beach, Sr., seriously assaulted Madeline Beach and did assault and batter her attorney, Theodore L. Lutz. Upon motion, rule was allowed against Marvin C. Beach, Jr., and Marvin C. Beach, Sr., directing them to appear before the court on the 28th day of July 1943, at eight-thirty o’clock a. m., to show cause why they should not be punished for contempt fpr their disobedience and misconduct.

The hearing in contempt came on before Frederick R. Wickham, a jndge of the Court of Common Pleas, on the 11th day of October 1943, and at the close of the complainant’s testimony motions pf dismissal were filed and overruled. Thereafter, no testimony was offered by either of the respondents, and again the motions for dismissal were renewed and overruled, and the court took the same under advisement.

On the 14th of October 1943, the court, after full and careful consideration of the charge of contempt and the testimony, found Marvin C. Beach, Jr., and Marvin O. Beach, Sr., guilty of contempt as charged.

Motions for new trial being filed in due course and overruled, judgment was pronounced that Marvin C. Beach, Jr., stand committed to the county jail of Crawford county, Ohio, for a period of ten days and pay a fine of $100. A like fine and jail sentence were assessed against Marvin C. Beach, Sr. Execution of the judgment was suspended pending appeal to this court.

Assignment of error No. 1 is that the charge for contempt was not maintainable in cause No. 20814, which was a suit for divorce, alimony and custody of minor children.

In a contempt proceeding of this character it is essential that a case be pending and, therefore, there is no merit'to that assignment.

The second assignment of error is that the motion filed by Madeline Beach in the action for divorce was insufficient •> in law to invoke the jurisdiction of the Court of Common Pleas in cause No. 20814.

Assignment of error No. 3 is that the motion, under and upon which the citation of contempt was issued, was insufficient in law.

Those contentions have no merit and are apparently different phrasings of the same complaint. Hayes v. Hayes, 11 Ohio App., 10, 15; Phillips S. & T. P. Co. v. Amalgamated Assn., 208 F., 335, 343.

The fourth assignment of error, that the motion charging contempt did not state a cause for contempt, will be discussed last.

The fifth assignment of error is that the findings and conclusions of the Common Pleas Court are not supported by sufficient evidence and are contrary to the evidence and contrary to law.

There is competent, credible and substantial evidence to sustain the findings and conclusions of the Common Pleas Court if the findings and conclusions are not contrary to law.

Assignment of error No. 6 is that the court erred in the admission of evidence objected to by the plaintiff.

As that assignment is neither argued in the brief nor orally, it is unnecessary to pass upon it.

Assignment of error No. 7 is the overruling of the motion of Marvin C. Beach, Jr., for judgment and finding in his favor and for dismissal of the action, made at the close of all the evidence.

Assignment of error No. 8 is the overruling of the motion of Marvin C. Beach, Jr., for a new trial.

Assignments of error Nos. 7 and '8 are overruled, unless and if the judgment is not contrary to law.

The courts have generally held that the General Assembly is without authority to abridge the power of the court, created by the Constitution, to punish contempt summarily, such power being inherent and necessary to the exercise of judicial functions; and that such provisions of the law as Sections 12843, 12844 and 12866, General Code, will not be construed as to impute to the General Assembly an intention to abridge such power. Hale v. State, 55 Ohio St., 210, 45 N. E., 199, 60 Am. St. Rep., 691, 36 L. R. A., 254; Steube v. State, 3 C. C., 383, 391, 2 C. D., 216; 9 Ohio Jurisprudence, 132, Section 72.

Such power is, inherent in the courts and necessary to the exercise of judicial functions. If the court has the inherent power to summarily punish contempt, it must by the same token have the power to determine the kind and character of conduct which will constitute contempt. State, ex rel. Turner, v. Albin, 118 Ohio St., 527, 535, 161 N. E., 792.

' The United States Supreme Court, at an early date, in Ex Parte Robinson, 86 U. S. (19 Wall.), 505, 22 L. Ed., 205, declared the inherent power of courts to punish for contempt.

The acts constituting contempt cover a wide range. The most familiar form of contempt of court is found in acts which hinder, delay and obstruct the adminis■¿ration of justice, which acts are usually committed in the course of the adjudication of some cause or the execution of its judgment. Acts which bring the court into disrepute or disrespect, which offend its dignity, affront its majesty or challenge its authority constitute contempt of court. 12 American Jurisprudence, 395, Section 9.

Certain acts, constituting contempt are enumerated in Section 12137, General Code, but the statute is not exclusive, and, if the court has inherent power to punish contempt summarily, it must by the same token have the power to determine the kind and character of conduct which will constitute contempt, even when not expressly provided for in the statute. The most familiar forms of contempt of court are found in acts which hinder, delay and obstruct the administration of justice, and such acts are usually committed in the course of some cause or its adjudication. However, some acts are such as tend to bring the court into disrespect or disrepute, subject it to ridicule, offend its dignity, affront its majesty or challenge its authority. 12 American Jurisprudence, 395, Section 9.

“The presence of the court,” as that term is used with reference to contempt, is understood to be “the court” and consists not of the judge, the courtroom or the juryroom, individually, hut of all these combined. The court is present wherever any of its co'nstitutent parts is engaged in the prosecution of the business of the court according to law. Accordingly, it is held that any act which is calculated to impede, embarrass •or obstruct the court in the administration of justice is to be considered as committed in the presence of the court. 12 American Jurisprudence, 392, Section 5.

The rule is well settled that attorneys are officers of Ihe court. 4 Ohio Jurisprudence, 435, Section 22.

Assaults committed in the presence of the court or so near thereto as to disturb the administration of justice, or assaults upon a judge, juror, attorney, witness or officer of the court, in the performance of his duty in connection with court proceedings or to deter him from such performance in the future, have been punished as contempts of court. 12 American Jurisprudence, 396, Section 10.

When they speak of ‘‘ in the presence of the court, ’ ’ the courts have universally, held that it is more than the idea of physical propinquity.

Neither place nor distance from the court determines whether the act complained of is done constructively in the presence of the court. However, if the act is of such character and is done under such circumstances that naturally its effect would be felt in the actual administration of justice, then the act'is as much done in the court’s presence as if the person doing the act were actually in the court’s presence. 9 Ohio Jurisprudence, 18, Section 4.

Conduct which tends to obstruct the untrammeled and unprejudiced exercise of the judicial power is punishable irrespective of the place where committed. 17 Corpus Juris Secundum, 10, Section 8; Conley v. United States, 59 F. (2d), 929; Froelich v. United States, 33 F. (2d), 660; Wind v. State, 102 Ohio St., 62, 130 N. E., 35; Miller v. State, 3 Ohio St., 475.

It is the general principle that disobedience of any lawful and valid judgment, decree or order of the court acting within its jurisdiction, of which one has notice or actual knowledge, constitutes contempt of court. 12 American Jurisprudence, 405, Section 24; 18 A. L. R., 215.

Under Section 12137, General Code, a proceeding in contempt must be based upon some order, judgment or command of a court or officer, or it must be dismissed. It is the wilful violation of an order of court which constitutes contempt, and there must be an intent, with knowledge of the order or at least of its nature, to transgress it, before a court will inflict punishment. 9 Ohio Jurisprudence, 79, Section 43.

It is essential to the punishment of a person for contempt for violation of a court’s order, that he have notice of the order, either actual or by service of the same upon him. 9 Ohio Jurisprudence, 84, Section 44; In re Frisbie, 27 Ohio App., 290, 161 N. E., 346; McWhorter v. Curran, 57 Ohio App., 233, 245, 13 N. E. (2d), 362.

It cannot be seriously contended that, between the time an order is made in open court and the reducing of such order to writing, of which order .the person has knowledge, the person so affected cannot act in such a way as to violate the order. In re Lilliland, 4 W. L. B., 733, 7 Dec. Rep., 659.

Without the inherent power of the courts to punish for contempt, which power is necessarily incident to the exercise of all judicial functions, the courts would be mere puppets and their orders farcical. Bloomberg v. Roach, Recr., 43 Ohio App., 178, 182 N. E., 891.

Various practices have prevailed in the procedure for contempt. Arraignment and plea are not necessary or essential in contempt proceedings. Markovic v. State, 7 Ohio Law Abs., 491.

However, it is the better practice, where a judge has no personal knowledge through the medium of his own senses at the time the act is committed but must rely for his knowledge upon evidence thereafter to be produced, that a written charge be filed and the accused afforded an opportunity to know the nature of the charge to be placed against him before sentence is imposed. Rose v. State, ex rel. Lieghley, 14 Ohio Law Abs., 542; Post v. State, 14 C. C., 111, 7 C. D., 257.

Where there has been a violation of an order, it is not necessary to docket an independent action in contempt, or proceed in an independent prosecution to enforce the order made in a civil action. Ray v. Street Ry. Co., 10 C. C. (N. S.), 577, 12 C. D., 793, judgment affirmed without opinion, 57 Ohio St., 664, 50 N. E., 1133.

In one of the cases cited in this paragraph, the proceeding was entitled “Hayes v. Hayes” as in the main equity proceeding. It would not have been improper to have styled the proceeding as “In re Hayes” and to have docketed it separately, but that was not necessary. Hayes v. Hayes, supra, 15; Phillips S. & T. P. Co. v. Amalgamated Assn., supra, 343.

With reference to the punishment of persons adjudged guilty of contempt, it has been the general rule that the courts have inherent power to impose a penalty reasonably commensurate with the gravity of the offense. It will be observed that for violation of direct contempt under Section 12136, General Code, the punishment for such or constructive contempt embraced therein is wholly within the discretion of the court. 9 Ohio Jurisprudence, 135, Section 73.

The United States Supreme Court has said that a judgment of contempt should not be disturbed except in case of a clear miscarriage of justice. Conley v. United States, supra, paragraph 14 of the syllabus; Froelich v. United States, supra.

Therefore, in the absence of constitutional permission, the Legislature cannot destroy, abridge, or limit the inherent power of courts to punish for contempt, although it may regulate the exercise of such power and enlarge it beyond its inherent scope. Statutes purporting to confer power to punish acts which are within the purview of the court’s inherent power are held to be merely confirmatory of the common law. 17 Corpus Juris Secundum, 58, Section 43-b.

It is the opinion of the court that the unprovoked assault and battery upon an officer of the court, Lutz, at the time and place and under the circumstances is a contempt of court of the most serious nature.

As an officer of the court, Lutz, representing his client, Madeline Beach, was in the performance of his duty in assisting or attempting to assist in the execution of a command issued by the judge who had jurisdiction and administrative control at the time over the persons and the children in a case pending in court.

There being no prejudicial error in the proceedings or disclosed by the record, the judgment of the Common Pleas Court is affirmed.

Judgment affirmed.

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


author: Carpenter, J.

text:
    Szymanski, Appellee, v. The Great Atlantic & Pacific Tea Co., Appellant.
    (No. 4170
    Decided February 3, 1947.)

      Mr. Merritt W. Green and Mr. James D. Nestroff, for appellee.

      Messrs. Fraser, Shumaker, Kendrick <& Winn and Mr. Robert B. Gosline, for appellant.
   Carpenter, J.

Plaintiff, Helen Szymanski, sued the defendant, The G-reat Atlantic & Pacific Tea Company, for false imprisonment and malicious prosecution. The verdict and judgment were for plaintiff in the sum of $700, and defendant appealed on questions of law.

On'April 28, 1945, the plaintiff, having made some purchases in one of defendant’s food stores in Toledo, was accosted, on leaving, by a store detective, Marie Robinson, and was charged with stealing a can of mushrooms and a can of pimentos. She was taken to a lounge in the rear of the store and was questioned by Marie Robinson and the store manager. She denied the theft' and asked to be permitted to go but was detained by them and by the manager alone while Marie Robinson called city police officers. Some time after they came, she was taken to the police station in a patrol wagon, booked and locked up. After about an hour, she deposited $25 as an appearance bond and was released. This happened on Saturday afternoon. The folloAving Monday an affidavit, charging her with petit larceny, was filed by the employer of Marie Robinson, a Mr. McAllister who was doing business as the Central Bureau of Investigation, which had a contract with defendant to furnish detective service to its stores.

On the trial of the charge in the Municipal Court of Toledo, plaintiff was acquitted and discharged.

The evidence as to the alleged theft is in direct conflict. It was plaintiff’s word that she bought and paid for the merchandise against Robinson’s that she saw her take and secrete the articles. From the record it appears that both the judge of the Municipal Court who tried the criminal charge and the jury in this action, believed the plaintiff’s narrative as to what happened. This court can not say that the finding of the jury on this question was against the weight of the evidence.

The question of false imprisonment depends upon the legality of the alleged authority of Marie Robinson as a special police officer. Section 51 of the Municipal Code of Toledo provides that the director of public safety may appoint private policemen, but Section 56 of that code limits that power to the appointment of such an officer for duty in one place ‘ ‘ unless said private policeman be the regularly detailed patrolman or. officer in the actual service of a special police company incorporated under the laws of the state of Ohio.” It was upon this latter provision that the validity of Marie Robinson’s appointment rested.

There were two fatal defects in her authority on the date in question:

1. As shown by the record, her only authority on that day was under an appointment as a special policeman for Continental Secret Service, whose employment she left in March 1945, to work for McAllister’s Central Bureau of Investigation. She was not commissioned in that service until May 8, 1945.

2. There is no evidence that either Continental Secret Service or Central Bureau of Investigation was “a special police company incorporated under the laws of the state of Ohio” as required by Section 56 of the Municipal Code of Toledo.

Only a commissioned peace officer can arrest one found committing a misdemeanor such as petit larceny. Hence, the detention of the plaintiff by Robinson was illegal and a violation of plaintiff’s rights. In this, the defendant’s store.manager had a part and aided and abetted by detaining plaintiff in the company lounge while Robinson went to call the police. The manager also appeared as a witness for the prosecution in the trial of the criminal charge.

Disregarding these acts of participation by the defendant’s agent, the store manager, defendant urges that the arrest and the prosecution were the work of Central Bureau of Investigation, an independent contractor, and that defendant was not liable for what the bureau’s agents, Robinson and McAllister, may have done.

No Ohio decisions directly in point on this type of a case are cited. Outside Ohio, the one most nearly similar cited by defendant is Niles v. Marshall Field & Co., 218 Ill. App., 142. In that matter, the evidence did not tend in any particular to connect any agent of the store with the alleged wrongful .acts of the store detective who was employed by the detective agency which had a contract with the defendant.

A case more nearly like the one at bar was later twice before that same court and each time it concluded that the question of defendant’s liability was for the jury, and ultimately approved a judgment for the plaintiff. Those cases were Schramko v. Boston Store of Chicago, 243 Ill. App., 251, and Komorowshi (plaintiff having married) v. Boston Store of Chicago, 263 Ill. App., 88; 341 Ill., 126, 173 N. E., 189. Those decisions were followed in Neeson v. Lake View Dairy Co., 285 Ill. App., 36, 1 N. E. (2d), 519. To the same effect is Dillon v. Sears-Roebuck Co., 126 Neb., 357, 368, 253 N. W., 331, and Halliburton-Abbott Co. v. Hodge, 172 Okla., 175, 44 P. (2d), 122.

• The better reason on which this judgment must be affirmed on this phase is that duties of the personal character performed by a store detective like Robinson can not be assigned or delegated to an independent contractor and thereby relieve the store owner from liability for illegal acts of'such detective to the injury of the store’s customers. That proposition was well stated in Adams v. F. W. Woolworth Co., 144 Misc., 27, 257 N. Y. Supp., 776, a parallel case to this:

“There appear to be no direct precedents on the question of liability for a false arrest made by an independent contractor detective agency. The tendency of our law, indicated above, would, however, clearly be toward the imposition of vicarious responsibility. Customers of Woolworth Company are invited into the store to buy its merchandise, for the profit of Woolworth Company. Can it be said that Woolworth Company can disclaim all duty of protecting them from the tortious acts of detectives brought by it into its own premises for the very purpose, among others, of making arrests of its customers? This is not the case of a contractor doing his work negligently. Where negligence is the sole basis of the liability, the doctrine of respondeat superior has been held inapplicable to independent contracts. Negligence does not enter into the tort of false arrest. The act itself, if not justified under-the statute (section 183, Code of Criminal Procedure) is tortious, irrespective of negligence. Lowenthal was brought onto the premises to watch and also to arrest. Immunity from vicarious liability would permit any storekeeper to subject his customers to the hazards of an irresponsible detective agency without peril to himself, He would obtain all the benefit of the surveillance and punishment of shoplifters; he would be subject to none of the penalties for unjustified or unlawful arrests of law-abiding citizens. The opportunities for gross -injustice afforded by such a doc-' trine are too manifest to permit its incorporation into the jurisprudence of our state, without compelling-reason. ’ ’

That principle was laid down in am earlier- decision, Clinchfield Coal Corp. v. Redd, 123 Va., 420, 434, 96 S. E., 836, as follows:

“The owner of an operation or enterprise cannot, by securing through others special agents, even though they be officers of the law, for the prosecution of offenders around the plant, obtain any immunity from liability for malicious prosecutions which such owner would not be equally entitled to if he himself directly selected and paid the agents and expressly retained the power of control and removal. When he undertakes these functions, his duties are personal and non-assignable, and where he arranges for and accepts the service, he will not be permitted to say that the relationship of master and servant does not exist.”

That decision was followed in Grant Co. v. Owens, 149 Va., 906, 924, 141 S. E., 860.

The conclusions of the court are:

1. That there was evidence to sustain the findings of the jury that (a) plaintiff was the victim of false imprisonment or malicious prosecution, or both, and (b) that the store manager participated in one or both torts;

2. That the contention of the defendant that because the Central Bureau of Investigation was an independent contractor, the defendant was not liable for its wrongful acts to plaintiff is invalid;

3. That error prejudicial to the defendant was not committed by the court; and

4. The judgment is affirmed.

Judgment affirmed.

Stuart and Conn, J J., concur.


author: By the Court.

text:
    In re Estate of Stevenson.
    (No. 3918
    Decided July 10, 1946.)

      Mr. R. W. Kilbourne, for appellee.

      Mr. C. Russell Younger and Mr. Harry L. Margulis, for appellants. •
   By the Court.

This is a motion submitted by Everett O. Newman, appellee, to dismiss the appeal for the following reasons:

1. That the appellants, the executors of the estate of Mae Stevenson, deceased, have failed to file their assignments of error and briefs.

2. The proceeding and judgment below are not appealable on questions of law and fact.

3. Appellants have failed to provide an appeal bond.

4. No valid reason exists to hold this appeal as an appeal on questions of law.

5. To strike from the files the bill of exceptions for failure to give notice to opposing counsel.

The action originated in the Probate Court of Franklin county, Ohio, upon the exceptions filed by Everett O. Newman to the inventory of the estate of Mae Stevenson and the action was contested by the executors of the estate. The Probate Court sustained the exceptions as to certain personal property, to which ruling the executors have filed this appeal on questions of law and fact.

As the first and second grounds of the motion are closely related, we shall' consider them together. The appellee contends that the appellants have failed to file their assignments of error and briefs within the time required under Rule YII of this court. However, Rule YII is not applicable to appeals on questions of law and fact, but is limited to appeals on questions of law.

We find that the second ground of the motion is well taken and that this appeal is not permissible on questions of law and fact. That this proceeding is not a chancery case was definitely decided in the case of In re Estate of Gurnea, 111 Ohio St., 715, 146 N. E., 308, where the court held that probate matters have lost their chancery character in Ohio, and that such proceedings are not now chancery cases as that term is used in the Constitution. That decision was followed in Squire, Supt., v. Bates, 132 Ohio St., 161, 5 N. E. (2d), 690.

With reference to the third ground of the motion which relates to the failure of the appellants to provide an appeal bond, the record discloses that on July 17,1945, a bond in the sum of $25,000 was filed with the American Surety Company of New York as surety, and that bond was approved by the court on the same date. The giving of that bond eliminated the necessity of the executors filing an appeal bond. Section 12223-12, General Code, provides as follows:

“The following shall not be required to give bond mentioned in Section 12223-9:

“ (a) Executors * * * acting in their respective trust capacities, who have given bond in this state, with surety according to law * *

Section 12223-6, General Code, provides:

“Except as provided in Section 12223-12, no appeal shall be effective as an appeal upon questions of law and fact unless and until the order, judgment, or decree appealed from is superseded by a bond in the amount and with the conditions as hereinafter provided, and unless the said bond be filed at the time the notice of appeal is required to be filed.”

The appellee contends that since the will of Mae Stevenson, deceased, provided that no bond be required of the executors, the $25,000 bond which was approved by the court was not given “according to law,” as provided'in Section 12223-12, General Code. In construing the provision of that section — “who have given bond in this state, with surety according to law”— we are of the opinion that the words “according to law” apply to the word “surety” immediately preceding, and have no application to any other part of the section. Since a $25,000 bond was given and approved by the court, we are of the opinion that no further bond was necessary to perfect this appeal.

Section 12223-22, General Code, provides a valid reason why this appeal should be held on questions of law. That section provides:

“Appeals on questions of law and fact may be taken: * * #

“(2) Whenever an appeal on questions of law and fact is taken in a case in which it is determined by the appellate court that the appellant is not permitted to retry the facts, the appeal shall not be dismissed, but it shall stand for hearing on appeal on questions of law.”

Also, Section 11564, General Code, provides:

“* * ?, whenever an appeal is taken on questions of law and fact and the Court of Appeals determines that the case cannot be heard upon the facts and no bill of exceptions has been filed in the cause, * * * the Court of Appeals shall fix the time, not to exceed thirty days, for the preparation and settlement of a bill of exceptions.”

A bill of exceptions has been filed in this court, but counsel for the appellee urges that he was not notified that the bill of exceptions had been filed in the Probate Court and did not know of its approval by the Probate Judge or the filing in the Court of Appeals.

Under Section 11565, General Code, counsel for the appellee was entitled to this notice, as that section provides :

“On the filing of such bill of exceptions, the clerk forthwith shall notify the adverse party, or his attorney, of its filing.”

“Duties of clerk and trial court in respect to perfecting bill of exceptions are merely directory and ministerial in character when excepting party has performed statutory duty required of him.” State, ex rel. Prudential Ins. Co. of America, v. Price, 45 Ohio App., 209, 186 N. E., 885.

Under the provisions mentioned in Section 11564, General Code, we are granting the appellants 30 days from the date of the filing of this entry for the refiling of the bill of exceptions, should they so desire, and also for the assignment of errors and brief. Should the appellee be not satisfied with the bill of exceptions it cannot be corrected by this court, but it may on motion be remanded to the trial court for a diminution of the record.

The motion is sustained as indicated.

Judgment accordingly.

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


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    The Acme Mortgage & Investment Co., Appellee, v. Bachelor, Jr., et al., Appellants.
    (No. 1924
    Decided February 20, 1947.)

      Mr. Harold E. Smock, for appellee.

      Mr. J eróme T. Miller, for appellants.
   By the Court.

This cause is submitted on motion of the plaintiff, appellee herein, for an order dismissing the appeal of defendants, appellants herein, on the ground that (1) the appellants have failed to file briefs or assignmeiTts of error as provided by Rule VII; (2) because of an insufficient or inadequate appeal bond; and (3) for want of prosecution.

In the notice of appeal it is stated that ‘ ‘ said appeal is on questions of law and fact.” Rule VII controls appeals on questions of law, and has no application to appeals on questions of law and fact.

In the entry fixing the appeal bond there is a recital that the appellants had deposited one hundred and nineteen ($119) dollars with the clerk of courts and the court thereupon fixed the appeal bond at one hundred ($100) dollars. The record shows that in addition to the one hundred and nineteen ($119) dollars, which had already been deposited, the appellants complied with the order of the court and deposited an additional one hundred ($100) dollars. If it is contended that this bond is insufficient, appellee should file a motion under Section 12223-16, General Code. On the state of the record the court cannot order a dismissal of the appeal.

The notice of appeal having been filed on December 13, 1946, and Rule VII not being applicable, it does not appear that there has been a want of prosecution which would justify a dismissal.

Accordingly, the motion to dismiss the appeal will be overruled.

Motion overruled.

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


author: Putnam, J.

text:
    Davis et al., Appellants, v. Halter et al., Appellees.
    (No. 2141
    Decided May 16, 1944.)

      Messrs. Amerman, Mills, Mills, Jones & Mansfield and Mr. Earl D. Bair, for appellants.

      Messrs. Hart & McHenry, for appellee A. F. Deible.
   Putnam, J.

The appeal to this court is on questions of law from the action of the court below in directing a verdict for the defendant Deible, an appellee herein, at the close of the plaintiffs’ case. The appeal as to defendant Halter, an appellee herein, has heretofore been disposed of.

This is an action for wrongful death brought by Clarence Davis and others against John Halter and A. F. Deible. Plaintiffs, appellants herein, are the father, mother, brothers and sisters of Paul Davis, deceased, who was 14 years old at the time of his death.

The defendant Deible was the lessee of certain lands, owned by Lonisa Halter, for the .purpose of mining coal. He had been the operator of a mine on such lands prior to its abandonment some months before Paul Davis was killed by falling from a ladder in a ventilating shaft which he had entered in search of water.

The action was predicated on Section 898-108, General Code, which provides in part as follows:

“The owner, lessee, or agent shall effectively close or fence all openings to mines abandoned subsequently to the passage of this act so that persons or animals cannot inadvertently enter therein. ’ ’

The remainder of the section provides for a penalty for violation.

The record shows the following facts:

The Halter farm, except 10 acres around the buildings, was leased to Deible in 1933 for the purpose of mining coal thereon and he operated a mine on the farm until April 1942 when the mine was abandoned. At that time there was a vertical, circular, fresh-air shaft, 68 feet deep .and about five feet in diameter, lined with tile which protruded above the- ground two feet on one side.and 10 inches on the other, such shaft being constructed on a sloping surface. Inside the shaft was a ladder to the bottom, which was constructed by placing iron rungs in the tile. There seems to have been landings every 10 or 15 feet down. When the mine was abandoned, the opening of the shaft was closed by covering the top with corrugated iron roofing and laying planks across the roofing to hold it down, but neither were fastened either to the tile or to each other. In addition a fence was constructed around the opening by placing posts or two-by-fours in the ground and stringing and fastening three strands of barb wire aronnd the same. On June 7, 1942, the date of the accident, the covering was not on the shaft. The fence and wire were in place, but the wire was sagging so that one could climb or step over it.

The Davis family had been living for four years in a tenant house on the Halter farm, about 500 feet away and across the road. The decedent, and in fact all of the Davis family, was perfectly familar with the location of thé shaft which could be plainly seen from the Davis house. In fact the family was living there when the shaft was constructed, and the decedent and his brother had previously been in the shaft and.climbed part way down on the ladder. On the day of the accident, a bright Sunday afternoon, the father, Paul, the decedent, and a younger brother, Richard, were sitting on the fence gate when the father told the two boys that they would explore .the shaft for water. It seems the supply at the house was not suitable. They all started for the shaft, the boys running ahead. Paul got there first, climbed over the fence and started to climb down the ladder in the shaft. By the time Richard got to the shaft he heard Paul cry out, “Let’s get out of here, ’ ’ or words to that effect. Richard then heard him fall. The father arrived in á few seconds, but the boy had already fallen, and was at the bottom of the shaft from whence his body was recovered some 12 hours later.

There can be no question that all three were perfectly familar with this shaft; that 'they all intended to enter it and were trespassers; and that Paul actually did purposely and intentionally enter the shaft, fell and was killed after presumably being overcome with “black damp” while part way down on the ladder.

In the face of these facts and the statute, quoted supra, was there a jury question involved? We hold that there was- not, and that the trial court committed no error in directing a verdict. This conclusion is based upon the following considerations.

The pertinent part of the statute reads:

“* * * shall effectively close or fence all openings * * * so that persons or animals cannot inadvertently enter therein. ’ ’

The contentions jmd argument of counsel have centered chiefly on the meaning of the word, “inadvertently, ’ ’ as used in the statute. The plaintiffs maintain, in effect, two propositions. First, that the words, “effectively close,” or, “effectively fence,” mean that the opening must be so closed or fenced that it would be impossible for persons or animals to enter therein under any circumstances. Second, that the intent of the statute is to guard against dangers inadvertently encountered in the mine once entry had been made in any manner. The difficulty with such argument is that the language employed does not convey that meaning. We must give the language used its plain meaning according to the usages of English grammar. It is to be noted that the phrase, “effectively close or fence,,” is modi,fied by the phrase, “so that persons or animals cannot inadvertently enter therein.” Such phrase states the purpose of the effective closing or fencing. It is to be noted furthei that the word, “inadvertently,” modifies the verb, “enter.” There is no dispute as to the definition of the word, “inadvertently.” According to Webster’s New International Dictionary, “inadvertence” is defined as follows: “1. The fact or action of being inadvertent; lack of heedfulness o.r attentiveness ; inattention. 2. An effect of inattention; a result of carelessness; an oversight, mistake, or fault from negligence. ’ ’

Thus we see that the effective closing or fencing is to prevent an inadvertent — heedless, unintentional, mistaken, unforeseen — entry. If the General Assembly had intended a meaning as contended by plaintiffs, it could easily have used language to have expressed' that meaning. It might have said for instance, ‘ ‘ shall be effectively closed or fenced so that no persons or animals would be able to enter therein. ’ ’ Or, the General Assembly might have said, “shall be effectively closed or fenced so that no persons or animals could enter therein and thus be inadvertently injured by encountering unforeseen dangers.”

However, the word, “inadvertently,” is used and only to modify the verb, “enter.” Consequently, it is only an “inadvertent entry” which the statute intends to guard against and not an injury in an inadvertent manner once entry had been gained in any manner. The closing or fencing must be effective for that purpose and to the extent only that it prevents an inadvertent entry.

Under this conclusion as to the meaning of the statute and under the undisputed facts of this case, which show conclusively that there was no inadvertent entry but an intentional entry by a trespasser, there can be no recovery. There was a question of law for the court and not one of fact for the jury. The judgment must be and is affirmed.

Judgment affirmed.

Montgomery, P. J., and Sherick, J., concur.


text:
    City of Cincinnati, Appellee, v. Strasburger, Appellant. (Two cases.)
    (Nos. 6653 and 6654
    Decided June 3, 1946.)

      Mr. John D. Ellis, city solicitor, and Mr. Nathan Solinger, for appellee.

      Mr. John W. Cowell and Mr. Mitchell Willy, for appellant.
   By the Court.

The appellant was found guilty, by the Municipal Court of Cincinnati, of installing a stoker without first obtaining a permit so to do, contrary to Section 1120, paragraph (a), of the Building Code of the city of Cincinnati. On his appeal to- the Court of Common Pleas, the conviction was affirmed. The appeal to this court is from that judgment.

It is urged that the appellant was placed on trial without having been arraigned.

• An examination of the docket entries discloses a recital that he was arraigned and that he pleaded not guilty. However, it is urged that the recitals in the bill of exceptions contradict the docket entry. We do find that at the conclusion of the trial the appellant made the contention that there had been no plea; but that is not the equivalent ;of a statement or certification by the court that his contention was true. The record, therefore, shows, without contradiction, that the appellant was arraigned and pleaded not guilty. Furthermore, he acted as. his own attorney in the trial which proceeded on the theory that such a plea had been made, and did not raise the question until the court found him guilty.

Counsel rely on Hanson v. State, 43 Ohio St., 376, 1 N. E., 136, and Doyle v. State, 17 Ohio, 222, as deciding that an arraignment and plea are indispensable. Neither case involved the point, although in the former case there is such a statement found in the syllabus, but at the close of the opinion the statement is not in the imperative. Both cases involved trials on indictments charging felonies. This case involves a trial on. affidavits charging violations of an ordinance. The distinction is pointed out in Ingham v. State, 35 Ohio App., 311, 172 N. E., 401, which holds that Hanson v. State and Doyle v. State are not controlling for that reason, and also holds that an accused proceeding to trial without objection waives the omission, with both of which reasons we concur.

We find no error in this respect.

It is urged that there was an attempt to delegate to an unofficial organization, contrary to the Constitution, the power to determine whether there had been a compliance. We find that the charges against the appellant were based on failure to apply for or obtain a permit and not for failure to do the work contrary to the provision of an issued permit. For that reason the question of the delegation of power does not arise on the record. „

It is also urged that the appellant was denied his constitutional right to a hearing because the court overruled his demurrer and motion to quash the affidavit. The appellant sgt forth fully' in these documents the grounds upon which he did not think he should be required to defend and the court overruled both without allowing the appellant to orally argue them. The court was right in overruling them and committed no error in refusing to hear argument on the law at the time.

An examination of the record shows that the appellant was given full opportunity to present his contentions. The court expressly invited him to present his views and this was followed by an extended colloquy between the appellant and the court and it was only after this colloquy that the court announced its decision. Assuming, without deciding, that the procedure on indictment was applicable to a proceeding based on an affidavit charging the violation of a municipal ordinance, we still hold that the appellant was given a fair opportunity to present all his defenses and was denied no constitutional right.

There are several errors assigned as to the exclusion of evidence. In most instances, the evidence was irrelevant, and in all, immaterial.

We find no prejudicial error in’the record.

The judgments are affirmed.

Judgments affirmed.

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


author: Stevens, J.

text:
    Kolthoff, Admx., Appellee, v. Kolthoff et al., Appellees; Cassidy, Appellant.
    (No. 1136
    Decided December 2, 1946.)

      Mr. D. W. Myers and Mr. Steven W. Kormendy, for appellee Rosanna Kolthoff, -administratrix.

      Miss Mary E. Anderson and Messrs. Wilcox é Wilcox, for appellant.
   Stevens, J.

There was filed in the Probate Court of Lorain county, by plaintiff administratrix, an action for a declaratory judgment concerning certain assets of the estate of her decedent. Upon hearing, the matter was resolved by tbe Probate Court, which, in its journal entry, stated: “This matter came on for hearing upon the petition of the plaintiff for a declaratory judgment, and the evidence * * V’

An appeal on questions of law and fact was then taken to the Court of Common Pleas, in which court a motion to dismiss the appeal on law and fact was made by defendants because of a claimed lack of jurisdiction in the court to hear and consider the appeal, for the reason that the journal entry in the Probate Court did not recite that a record had not been taken at the hearing before the Probate Court, so that a bill of exceptions or a complete record could be prepared as provided by law in Courts of Common Pleas.

The Court of Common Pleas overruled the motion to dismiss, allowed certain amendments to be made to the petition, heard the case de novo on the evidence, and ruled adversely to the defendant-appellant. This appeal on questions of law followed.

Two questions are presented for determination by this court:

1. Was the action properly appealable from the Probate Court to the Common Pleas Court!

2. If so, was the Common Pleas Court’s determination of the issue made under Section 10503-5, General Code, correct!

Section 10501-56, General Code, provides:

“ * * * If, for any reason, a record has not been taken at the hearing of any matter before the Probate Court so that a bill of exceptions or a complete record may be prepared as provided by law in Courts of Common Pleas, then an appeal on questions of law and fact may be taken to the Court of Common Pleas by a person against whom it is made, or whom it affects, from any order, decision, or judgment of the Probate Court in the manner provided by law for the prosecution of such appeal from the Court of Common Pleas to the Court of Appeals. The Court of Common Pleas shall advance said matter for hearing. ’ ’

It is a well-recognized rule that a court speaks through its journal,.and the journal entry of the Probate Court in this action states: “This matter came on for hearing upon the petition of the plaintiff for a declaratory judgment, and the evidence * * (Italics ours.) (

The' Common Pleas Court had before it the journal entry of the Probate Court, as well as the notice of .appeal filed in the Probate Court, which notice asserted that “No record has been taken of the hearing of any matter before the Probate Court, so that a bill of exceptions or complete record, may be prepared in this proceedings * * *.”

Prom the journal entry, which specified that the matter had been heard “upon the evidence,” the Common Pleas Court was required to conclude that evidence had been introduced in the Probate Court, and the notice of appeal .showed that at least the appellant claimed no record had been taken. ,

There is no statutory requirement that absence of the taking of a record be made to appear in the journal entry of the Probate Court, and from such omission we think it reasonable to conclude that the Legislature intended no such requirement.

There was before the Common Pleas Court a document (the notice of appeal) which stated that no record had been taken, which, in- the presence of a motion to dismiss for want of jurisdiction, warranted the Common Pleas Court in exploring the question further by way of evidence, so that it might intelligently pass upon the motion to dismiss.

But entirely aside from that right, there was no record presented to the Court of Common Pleas in a proceeding wherein the Probate Court, by its journal, had stated that the matter was heard “upon the evidence. ’ ’

In the absence of an amendment of the journal entry of the Probate Court, the Court of Common Pleas was entirely justified in concluding that evidence had been introduced before the Probate Court, and that no record had been taken, and its overruling of the motion to dismiss was not error.

The appeal on law and fact was properly taken, and the allowance of the amendment to the petition, on application duly made, was entirely within the sound judicial discretion of the Court of Common Pleas, which we find not to have been abused.

The second question concerns the manner of distribution of $3,700, which was on deposit in the name of Philip Opper at the time of his death. Did it pass, under Section 10503-5, General Code, to the heirs of his wife, as well as to his heirs, or to the heirs of Philip Opper alone, he having died intestate?

Concededly, Philip Opper received from the estate of his deceased wife $3,700, in three different amounts: July 2, 1943, $900; July 2, 1943, $2,300; July 6, 1943, $500. These three amounts, either by" transfer of credits or deposit, came to rest in a savings account in the name of Philip Opper, and so stood at the time of Ms death intestate.

If Section 10503-5, General Code, has application, then this $3,700 is distributable to the heirs of his wife as well as to his heirs. If it does not apply, then said sum goes 'to his heirs alone.

The rule with reference to the applicability of Section 10503-5, General Code, is stated by the Supreme Court of Ohio in Wilson v. Eccles, 119 Ohio St., 184, 162 N. E., 797, as follows:

“Section 8577 [present Section 10503-5], General Code, has application only to the identical property which comes to an intestate from a former deceased husband or wife and has no application to property acquired by such intestate after death of such former deceased husband or wife even though such property is purchased from the proceeds of property coming from such former deceased husband or wife or is the increase or accumulations of such property.”

Was the $3,700 savings account of Philip Opper the identical property which he received from the estate of his deceased wife?

The answer is obviously “no,” for deposits, whether savings or. commercial, received by a bank from a depositor, in the absence of an agreement to the contrary, become the property of the .bank and give rise to a relationship of debtor and creditor between them. Smith et al., Trustees, v. Fuller, 86 Ohio St., 57, 99 N. E., 214, L. R. A. 1916C, 6, Ann. Cas. 1913D, 387. Hence, Philip Opper was a creditor of the bank, having owing to bim an obligation which the bank could and was required to pay in accordance with its regulations, to which Opper subscribed when he placed his money in a savings account.

His claim was not against specific money held by the bank, but against its commingled assets.

There was no identity of what he received and what he left at his death.

The section (10503-5, General Code) had no application under the facts of this case, and the Common Pleas Court correctly resolved that question.

Judgment affirmed.

Washburn, P. J., and Doyle, J., concur.