text:
    The State of Ohio, Appellee, v. Sheppard, Appellant.
    (No. 23400
    Decided February 9, 1955.)

      Mr. Frank T. Cullitan, prosecuting attorney, Mr. Saul S. Danaceau and Mr. Tinos. J. Parnno, for appellee.

      Messrs. Corrigan, McMahon é Corrigan, Mr. Fred W. Garmone and Mr. Arthur E. Petersilge,' for appellant.
   Skeel, J.

This cause came on to be heard upon the motion of the defendant seeking an order of this court to certify the decision of this court entered January 19, 1955 {ante, 489), refusing the defendant bail pending appeal, to the Supreme Court for review on the ground that such decision is in conflict with a judgment of the Court of Appeals for Belmont County and a judgment of the Court. of Appeals for Mahoning County on the same subject.

The request is based on the provisions of Section 6, Article IV of the Constitution of Ohio. This section, in part, provides:

“ * * *' and whenever the judges of a Court of Appeals find that a judgment upon which they, have agreed is in conflict with a judgment pronounced upon the same question by any other Court of Appeals of the state, the judges shall certify the record of the case to the Supreme Court for review and final determination. ’

The entry of this court recorded on January 19, 1955, as above indicated, was one overruling defendant’s request to be admitted to bail pending appeal of his conviction of the crime of murder in the second degree in the Court of Common Pleas of Cuyahoga County. The defendant had been charged with murder in the first degree. The jury found him not guilty of the crime charged but guilty of murder in the second degree. A motion for new trial was filed and overruled. Notice of appeal was then filed as provided by law, the trial court refusing to admit the defendant to bail pending appeal. The application for bail filed in this court was not an appeal from the refusal of the Common Pleas Court to set bail, but was rather filed in this court under the provisions of Section 2953.10, Revised Code, which provides:

“The Court of Common Pleas, Court of Appeals, or Supreme Court, or any judge thereof, to which court an appeal is taken from an inferior tribunal, has the same power and authority to suspend the execution of sentence during the pendency of such appeal and admit the defendant to bail as is provided for in respect to said inferior tribunal.’’

This court held that one convicted of a crime in which life imprisonment was the penalty pro/ided by the law defining the crime of which the defendant was convicted cannot be admitted to bail by reason of Section 2949.02, Revised Code, which provides as follows:

‘1 When a person has been convicted of any bailable offense, including the violation of an ordinance of a municipal corporation, in the Court of Common Pleas, or by any court or magistrate inferior to the Court of Common Pleas, and such person gives notice in writing to the trial judge or magistrate, of his intention to file, or apply for leave to file a petition to review such conviction, such judge or magistrate may suspend execution of the sentence or judgment for such fixed time as will give the accused time to prepare and file, or to apply for leave to file such petition. In all bailable cases, except those in which the punishment is imprisonment for life, such judge may release the defendant upon a recognizance with sufficient surety to be approved by the judge or magistrate, conditioned that the accused will appeal without delay and abide by the judgment and sentence of the court.”

It is the claim of the defendant that in the case of State v. Hawkins, ante, 477, which case was tried in the Common Pleas Court of Belmont County, the defendant was found guilty of murder in the second degree, and, upon appeal, a judge of the Court of Appeals for Belmont County, upon her application to be admitted .to bail pending the appeal of her conviction, granted such application, and the defendant was admitted to bail.

It is also claimed that in the case of State v. Robinson, the defendant was found guilty of murder in the second degree upon trial in the Common Pleas Court of Mahoning County, and, pending appeal of such conviction, the defendant was admitted to bail upon application passed on by two judges of the Court of Appeals for Mahoning County, in like manner as in the Hawkins case.

It is with these rulings of the Court of Appeals of the Seventh Appellate District that it 'is claimed the holding of this court is in conflict and which requires us to certify our record refusing defendant’s application for bail to the Supreme Court for review.

It is the law of this state that an order refusing bail or requiring reduction of excessive bail pending trial on the merits is interlocutory in character and cannot be reviewed upon appeal. In the case of State v. Bevacqua, 147 Ohio St., 20, 67 N. E. (2d), 786, the court held:

“The overruling of a motion for the reduction of bail previously fixed for the appearance of an accused pending trial on an indictment is not a final order which may be made the basis of an appeal even though such overruling of the motion amounts to an abuse of discretion; but the constitutional right to non-excessive bail in bailable offenses may be fully protected by suing out a writ of habeas corpus in a court of competent jurisdiction. ’ ’

It has also been held that after a judgment of guilty in a criminal case, a defendant is not entitled to be released on bail pending appeal as a matter of right, and even though there is no statutory prohibition against admitting a defendant to bail after conviction, whether such an order admitting the defendant to bail will or will not be made is within the discretion of the trial court, or the reviewing court (Section 2953.10, supra).

In the case of In re Thorpe, 132 Ohio St., 119, 5 N. E. (2d), 333, the Supreme Court held:

“1. The provisions of Article I, Section 9 of the Ohio Constitution, guaranteeing the right to bail, are not effective subsequent to judgment of conviction in the trial court. (In re Halsey, 124 Ohio St., 318, approved and followed.)
“2. One convicted of a felony is not entitled as a matter of right to be admitted to bail or to have execution of sentence suspended pending appeal of such judgment of conviction in a reviewing court; but the trial court is authorized by Section 13453-1, General Code, to suspend execution of sentence and release the defendant upon approved recognizance pending such appeal.”

In the case of In re Halsey, 124 Ohio St., 318, 178 N. E., 271, 77 A. L. R., 1232, it was held:

“1. Section 9 of the Ohio Bill of Rights guarantees the right to bail only before judgment of conviction in the trial court.
“2. Section 13453-1, General Code, denying accused persons the right to bail after judgment in the trial court where the punishment is imprisonment for life, is not unconstitutional.”

It is therefore clear that an order refusing bail to one convicted of murder in the second degree for which the punishment provided by Section 2901.05, Revised Code, is imprisonment “for life,” the statutes providing under such circumstances a defendant after conviction shall not be admitted to bail (Section 2949.02, Revised Code), or in cases where the defendant at the discretion of the court may be admitted to bail after conviction of a felony, which request is refused by order of the court, is not a judgment or a final order in a special proceeding but is interlocutory in character and not an order from which an appeal can be taken.

The Constitution of Ohio provides that only judgments which are in conflict shall be certified. The order made by this court not being an appealable order is not a judgment, which may be certified to the Supreme Court on the ground of conflict under Section 6, Article IY of the Ohio Constitution.

It should also be noted that the orders of the Seventh District Court of Appeals upon which the defendant seeks an. order of certification are not judgments under the purview of this section of the constitution.

The prohibition against bail provided for, where imprisonment for life is a penalty provided by law, is not concerned with the sentence which may be imposed after conviction. It is intended by Section 2949.02, Revised Code, to deny bail, after conviction, to a certain class of defendants; that is, all those who have been convicted of a crime where the statute defining the crime provides for a life sentence.

The Legislature in its wisdom has the power to deny bail to. a particular class so long as the rule is of general application throughout the state. On this theory the Supreme Court in dealing with the right of the Legislature to provide for sentencing a defendant twenty years of age, found guilty of a violation of Section 2907.14, Revised Code, to a definite term in the penitentiary for life, regardless of the indeterminate sentence laws and the manner of sentencing certain defendants to reformatory institutions, held in Ex Parte Fleming, 123 Ohio St., 16, 173 N. E., 441:

“1. The state, in its inherent sovereign power to define crimes and fix penalties, may, acting through the Legislature, create a new offense applicable to all within the class named and of general operation throughout the state, authorizing the trial court to pass a definite sentence upon one convicted thereunder to the penitentiary for life, or, if the jury as a part of their verdict recommend mercy, for not less than twenty years.
“2. Habeas corpus does not lie to effect the discharge of one under the age of twenty-one years who has received a definite sentence to the penitentiary under the provisions of such new act (Section 12441, General Code) for the offense of entering a bank with intent to commit or committing a felony with firearms or other deadly weapons, ' even though a general law passed prior to such new act provides for general sentences of male persons between the ages of sixteen and twenty-one years, convicted of felony, to the reformatory instead of the penitentiary.”

We also call attention to the fact that even where the court is authorized by law to admit a defendant to bail pending appeal, a refusal to do so does not constitute an appealable order for the reason that there is no duty imposed by law upon a court to grant such request. While it appears from the record, as shown by the ruling on defendant’s motion seeking to be admitted to bail, that we refused such request upon the authority of the statute (Section 2949.02, Revised Code), yet, if the defendant was legally privileged to be admitted to bail at the discretion of the court, it would be extremely doubtful that such motion would be granted in this ease where the trial court, after an extended hearing on the trial, refused such request after conviction.

For the foregoing reasons the motion and the supplemental motion to certify the record of the court refusing bail to the defendant are overruled.

Motions overruled.

Hurd, P. J., and Kovachy, J., concur.


source: Caselaw Access Project

author: Wiseman, P. J.

license: Public Domain

text:
    In re Estate of Brown.
    (No. 2299
    Decided September 17, 1954.)

      Messrs. Frank, Thomas é Corwin, for appellees.

      Mr. Guy E. Miller, for appellants.
   Wiseman, P. J.

This is an appeal on questions of law from a judgment of the Probate Court of Montgomery County, admitting to probate a lost will.

Appellees move to dismiss the appeal on the ground that the judgment of the Probate Court is not an appealable order.

In Hollrah v. Lasance, 63 Ohio St., 58, 57 N. E., 964, it is held:

“An order of the Probate Court admitting n paper to probate as a last will and testament is not reviewable on petition in error. ’ ’

In Roth v. Siefert, 77 Ohio St., 417, 83 N. E., 611, it is held:

“An order of the Court of Common Pleas finding and establishing the contents of a lost will is not reviewable upon petition in error.”

Section 10501-56, General Code (118 Ohio Laws, 78), (Section 2101.42, Revised Code), by amendment effective June 26, 1939, provided for an appeal from the Probate Court direct to the Court of Appeals.

Since the amendment the Supreme Court, in the case of In re Estate of Frey, 139 Ohio St., 354, 40 N. E. (2d), 145, has held:

“An order of the Probate Court admitting an instrument to probate as a last will is not reviewable on appeal. ’ ’

In that case the court considered the effect of the amendment to Section 105Ó1-56, General Code, and held that the case law was not changed by the amendment ; that an order of the Probate Court admitting a will to probate is not a final order; and that the only mode of challenging the validity of a will which has been admitted to probate is by a will-contest suit as provided by statute.

In our opinion the order appealed from is not a final order. The motion to dismiss the appeal is sustained.

Motion sustained.

Miller and Hornbeck, JJ., concur.


author: Ross, J.

text:
    The State, ex rel. Songer, Gdn., v. Baber, Supt.
    (No. 7862
    Decided April 12, 1954.)

      Mr. Sol Goodman, for relator.

      Mr. C. Wm. O’Neill, attorney general, Mr. Hugh A. Sherer and Mr. George F. Patterson, Jr., for respondent.
   Ross, J.

This is an action in mandamus, originally instituted in this court.

By virtue of the writ, the relator seeks the mandate of this court, requiring the defendant, Superintendent of Longview State Hospital of Cincinnati, Ohio, to admit as a patient in such hospital one George W. Songer, a mental incompetent.

The case is presented upon the allegations of the petition and demurrer thereto by the defendant.

In the petition it is alleged that “on the 7th day of October, 1953, a warrant of detention was duly issued according to law by the probate judge of Hamilton County, Ohio, for the detention of George W. Songer, a person thought to be mentally ill”; that “the Probate Court having set the case for hearing, and after examining the said George W. Songer and causing an examination of the said George W. Songer to be made by> two reputable physicians and having a report of said physicians made a part of the court record, and being satisfied that the said George W. Songer is mentally ill, did, in accordance with law, adjudge the said George W. Songer to be mentally ill”; that “the said Probate Court did further find that the said George W. Songer has a legal settlement in Hamilton County, Ohio; that he has been a resident of the state of Ohio for not less than twelve (12) consecutive months next preceding said order by the Probate Court of Hamilton County, Ohio; that his said mental illness has occurred during the time he has resided in the state of Ohio; and that his being at large is dangerous to the community and that he is a suitable person for observation and treatment at the Long-view State Hospital at Cincinnati, Ohio”; that “the said Probate Court of Hamilton County, Ohio, did order the medical witnesses in attendance [to] make out a medical certificate setting forth the facts as provided by law, and further duly ordered that said George W. Songer be committed to the Longview State Hospital at Cincinnati, Ohio, for treatment and custody”; that “the said Longview State Hospital has been duly designated according to law as the proper State hospital for the mentally ill from Hamilton County, Ohio”; that “the said George W. Songer is over seventy (70) years of age and that the said Probate Court of Hamilton County, Ohio, committed the said George W. Songer to the Longview State Hospital pursuant to the provisions of Revised Code of Ohio, Section 5123.23”; that “the said Probate Court of Hamilton County, Ohio, made such order pursuant to said Section 5123.23 (A) of the Revised Code of Ohio, said Longview State Hospital being the only state hospital, person, institution or agency to which said George W. Songer could be committed, it being not feasible under the circumstances to commit the said George W. Songer under divisions (B), (C), (D), (E) or (F) of said section, or any of said divisions”; that “on the 16th day of November, 1953, the said Probate Court of Hamilton County, Ohio, under its official seal, then and there duly designated Dan Tehan, sheriff of Hamilton County, Ohio, to immediately take charge of and convey the said George W. Songer to Longview State Hospital and to make return thereof to the Probate Court of Hamilton County, Ohio; that the said Dan Tehan, as sheriff of Hamilton County, Ohio, through his duly authorized deputy, did take charge of and convey the said George W. Songer to Longview State Hospital at Cincinnati, Ohio, and that the defendant, Erl A. Baber, superintendent of said hospital, being duly served with certified copies of said proceedings according to law, refused to accept the person of the said George W. Songer and refused to obey the order of commitment of the Probate Court of Hamilton County, Ohio”; “that the said quoted provision of said Section 5123.23 of the Revised Code of the state of Ohio is null and void and is in violation of Sections 1 and 2 of Article I, Section 26 of Article II, and Sections 1 and 7 of Article IV of the Constitution of the state of Ohio and of Section 1 of the Fourteenth Amendment to the Constitution of the United States”; that “by reason of the failure of the said defendant as aforesaid, the said George W. Songer is denied admission to the state hospital and there is no other state hospital or other public or private hospital that will afford him a place for residence and treatment”; that “Samuel Songer is the son of said George W. Songer, and that he does not have means wherewith to provide for the private care of said George W. Songer, that said George W. Songer is temporarily stationed and placed in the Burns Rest Home at Fulton and Nassau Streets, and that the charges for said keep and maintenance amount to one hundred eighty ($180) dollars per month, and that said George W. Songer has no estate or means wherewith to pay said charges, nor does Samuel Songer have funds wherewith to provide such private rest home for his said father, George W. Songer ’ ’; that ‘ ‘ there is no plain or adequate remedy in the ordinary course of law or equity for the relief of said George W. Songer and by reason of the failure of the defendant as aforesaid, said George W. Songer is left without a place for residence or care and is left out without any provision made for his care and custody, thus making it a menace to the public, contrary to the public welfare and contrary to the rights of said George W. Songer under the laws and the Constitution of the state of Ohio and the Constitution of the United States.”

The sole question herein considered is the constitutionality of Section 5123.23, Revised Code, under the provisions of which the orders of the Probate Court were made.

On March 17, 1954, the Supreme Court decided the case of State, ex rel. Steer, Gdn., v. Baber, Supt., 161 Ohio St., 211.

No court, is more sensitive to the requirements of judicial subordination than this tribunal. However, there is presented here an entirely different situation than one in which the judgment of a Court of Appeals, sustaining the constitutionality of a statute, is affirmed by the Supreme Court in at least a six to one decision.

No Court of Appeals, to our knowledge, has passed upon the instant question.

In the Per Curiam opinion in State, ex rel. Steer, Gdn., v. Baber, Supt., supra, it is stated:

“For the reason that fewer than six members of the court are of the opinion that the above-quoted provision of the section is unconstitutional, the court cannot so declare it. Therefore, relator is not entitled to the relief prayed for. ’ ’

Section 2 of Article IV of the Ohio Constitution provides in part:

“No law shall be held unconstitutional and void by the Supreme Court without the concurrence of at least all but one of the judges, except in the affirmance of a judgment of the Court of Appeals declaring a law unconstitutional and void.”

In view of the negative character of the pronouncement in the Baber case, this court is of the opinion while entertaining the deepest respect for the Supreme Court, that that tribunal has left open the door to future consideration of the statute by Courts of Appeals.

Much the same situation here presented was' involved in the action of the Supreme Court upon the constitutionality of Section 3963, General Code, although there the first decision of the Supreme Court was rendered in the consideration of an appeal from the Court of Appeals for Cuyahoga County, sustaining the constitutionality of the statute. City of East Cleveland v. Board of Education, 112 Ohio St., 607, 148 N. E., 350. The matter was again presented to the Supreme Court in an appeal from a judgment of the Court of Appeals for Franklin County, wherein the section of the statute was held unconstitutional, and the Supreme Court affirmed such judgment in a five to two decision, finally determining the unconstitutionality of the statute. Board of Education v. City of Columbus, 118 Ohio St., 295, 160 N. E., 902. In the opinion by Chief Justice Marshall, it is stated:

“In the East Cleveland case, the lower courts had declared Section 3963 to be' constitutional, and two members of this court were empowered to affirm that judgment over the dissent of the other five. In the instant case, the situation is reversed, the lower courts having declared the statute unconstitutional and void, and a majority of the court have power to affirm that judgment. The several members of this court entertain their respective views upon the legal questions involved, as expressed in the opinions published in that case, and the dissenting opinion in that case becomes the reasons of the five members of this court in support of the judgment of affirmance of the judgment in the instant case, and that opinion will therefore be adopted by reference and without repetition.”

A difference exists in the parallel in that from the report of the Baber case it appears that only two judges concurred in the dissent of Judge Stewart. This, however, does not change the proposition that this court has precedent for its action, and is not guilty of judicial insubordination in considering the constitutionality of a statute which has been only approved by a negative finding of insufficient personnel of the court to declare it unconstitutional.

Coming now to consider the matter on the demurrer, we adopt the reasons and conclusions of Judge Stewart in State, ex rel., v. Baber, Supt., supra, as the decision of this court, finding Section 5123.23, Revised Code, unconstitutional. Therefore, the demurrer will be overruled, and if the defendant does not desire to plead further, a writ may be issued pursuant to the prayer of the petition.

Judgment accordingly.

Matthews, P. J., and Kildbbrant, J., concur.


author: Matthews, P. J.

text:
    Smith et al., Appellants, v. Board of Education et al., Appellees.
    (No. 7853
    Decided March 29, 1954.)

      Messrs. Waite, Schindel & Bayless, Mr. Philip J. Schneider, Mr. David P. Tarbell and Mr. Walter L. Tarr, for appellants.

      Messrs. Paxton & Seasongood, Mr. Wm. H. Tracy and Mr. Reuven J. Rats, for appellees.
   Matthews, P. J.

The plaintiffs are residents and taxpayers of either Crosby Local School District, Harrison Local School District, or Whitewater Local School District of Hamilton County, Ohio, and by this action seek to enjoin the defendants, County Board of Education of Hamilton County, Ohio, and its members, from proceeding to abolish Crosby, Harrison, and Whitewater Local School Districts, and in their stead and place create a new school district embracing all the territory of said three districts. Later, Charles B. Crouch, superintendent of schools and clerk of defendant board, was made a party defendant. The injunction is sought on the ground that the defendants are proceeding in an arbitrary and unreasonable manner and contrary to the law and the Constitution.

Issue was joined, and a trial had in the Common Pleas Court. At its conclusion, the court found on the issues in favor of the defendants, the temporary injunction was dissolved, and the action dismissed, at the costs of the plaintiffs. That is the judgment appealed from. The appeal is on questions of law and fact.

The trial in this court disclosed very little dispute as to the essential facts. It appears that the first act in the procedure prescribed by the law in the process of abolishing the three school districts and creating a new district out of their territory was taken by the board on June 9, 1953, by the passage of the following resolution:

“Resolution
“Whereas, it is deemed to be to the best interest of the Crosby, Harrison, and Whitewater Local School Districts, that said districts be abolished and a new district created, as is authorized in Section 4831-1 of the General Code of Ohio; and that the territory within the above district be transferred to the newly created district; and
“Whereas, this board of education is given the power to so abolish, create and transfer by reason of the provisions of Section 4831-1 of the General Code of Ohio;
“Therefore, be it resolved by this board of education, that the Crosby, Harrison, and Whitewater Local School Districts be and the same are hereby abolished and dissolved and a new district is hereby created; and
“Be it further resolved, that that territory lying within the Crosby, Harrison and Whitewater Local School Districts, and which constitute said districts, be and the same are hereby transferred to a new school district; and that proper apportionment of funds or indebtedness of said districts be made by this board, if the same is necessary, and
“Be it further resolved, that a map of the newly created district, together with a notice of the abolition of the Crosby, Harrison and Whitewater Local School Districts, and the creation of a new school district be filed with the Auditor of Hamilton County, Ohio; and
“Be it further resolved, that notice of such proposed abolition of the Crosby, Harrison and Whitewater Local School Districts, and the creation of a new school district, be given to the boards of education so affected by this action; and
“Be it further resolved that the boards of education governing the administering the affairs of those districts abolished be and the same are hereby also abolished; and
“Be it further resolved by tiffs board that the appointment of the members of the board of education of the newly created district be deferred for further action of this board.
“It is hereby further resolved that this transfer shall not take effect if a majority of the qualified electors residing in the territory included in such newly created district voting at the last general election shall, within thirty days from the time such action is taken, file with the County Board of Education, a written remonstrance against it.
“Be it further resolved that this board recommends that the pupils attending Taylor High School from the aforementioned districts be permitted to continue to attend said high school as tuition pupils.”

About a month before taking the action of June 9, 1953, the defendant board had sought the opinion of school boards of the three local districts as to whether their consolidation into one district would be desirable. Crosby answered, but took no position for or against the proposal. Whitewater reported that a motion opposing consolidation failed to receive a second and that it had taken no action. Harrison reported that its five members favored consolidation.

It is urged that, in view of these reports from the three local districts, the defendant county board was too precipitate in its action of June 9, 1953, in passing the aforesaid resolution. We see nothing in the action of the county board under these circumstances indicating arbitrary or unreasonable action. It would seem to us that the inquiry it made would tend to prove just the contrary. Certainly, it shows no abuse of discretion.

At the time the defendant county board passed the aforesaid resolution, there was pending before it a petition signed by 87 per cent of the electors of the district, filed on April 14, 1953, requesting the transfer of certain territory from Whitewater district to the adjoining Cleves-North Bend district. It is urged that the pendency of this petition precluded the defendant board from taking its action of June 9, 1953. We have been cited to no rule, principle or case to support this contention — and we know of none. The order in which pending business should be disposed of was certainly within the sound discretion of the board, in the absence of some statutory provision either expressly or impliedly restricting such discretion. It might be suggested (in fact it has been suggested) that the procedure authorized or required by Section 4831-13, General Code (Section 3311.23, Revised Code), might have that effect upon the filing of a petition by the electors of the district, but that section relates to petitions filed in even numbered years, and this petition of electors was not filed in an even numbered year, as specifically required. Furthermore, Section 4831-13, General Code, applies only to the transfer of territory in one county to a school district in another county, or to an adjoining city or exempted village school district within the same county. It has no application to transfers intra-county, except to an adjoining city or exempted village district. Board of Education v. Minnich, 14 Ohio Law Abs., 651; 36 Ohio Jurisprudence, 125, 126, Section 88. So we conclude that the pendency of the petition of the electors was without legal significance. At most it only indicates the desire or opinion of the signers. It cannot be treated as a prescribed act in any proceeding authorized by law. There is no statute authorizing the initiation of an intra-county transfer by petition of electors, except to an adjoining city or exempted village district, and there is no evidence that Cleves-North Bend was either a city or exempted village district.

The presence of the petition upon its files required no action by the board.

The recent case of State, ex rel. Boerger, v. Board of Education, 160 Ohio St., 527, 117 N. E. (2d), 330, involved a transfer of territory in one county to a school district in another, county, and required the application of Section 4831-13, General Code. Manifestly, it is no guide to a decision of the case at bar. All the court decided was that the statute had been complied with, and that, therefore, a mandatory duty had been imposed upon the board of education to proceed with the transfer.

Next, it is claimed that the resolution of June 9, 1953, is insufficient in substance, in that it fails to include the appointment of a board of education for the newly created district and a division of the funds and indebtedness. The enabling act, under which the county board is proceeding is Section 4831-1, General Code (Section 3311.26, Revised Code). This contention requires a critical analysis of its terms. We, therefore, quote it in full:

“A county board of education may create a new local school district from one or more local school districts or parts thereof, and in so doing shall make an equitable division of the funds and indebtedness between the newly created district and any districts from which any portion of such newly created district is taken. Such action of the county board of education shall not take effect if a majority of the qualified electors residing in the territory included in such newly created district voting at the last general election shall within thirty days from the time such action is taken file with the county board of education a written remonstrance against it. When a new local school district is created within a county school district, a board of education for such newly created district shall be appointed by the county board of education. The members of such appointed board of education shall hold their office until their successors are elected and qualified. A board of education shall be elected for such newly created district at the next general election held in an odd numbered year occurring more than thirty days after the appointment of the board of education of such newly created district. At such election two members shall be elected for a term of two years and three members shall be elected for a term of four years, and, thereafter, their successors shall be elected in the same manner and for the same terms as is provided by law for the election of members of the board of education of a local school district.”

It must be observed that this section sets forth the various changes necessary to effectuate the creation of a new school district and authorizes the county board to make those changes, but prescribes no procedure — no form, and no time schedule. That the new school district could not be brought into complete existence by a single exertion is manifest. The provision giving the electors thirty days in which to filé a remonstrance shows that the General Assembly was conscious of that fact. The first act in the process is the decision to create the new district, and that decision can be made effective legally only by a resolution duly passed by the county board. After that, whatever action is taken depends upon circumstances and the exercise of a sound discretion by the board. Even the first step may be retraced. In State, ex rel. Owen, v. Carroll County Board of Education, 129 Ohio St., 262, at 267, 194 N. E., 867, it is said:

“However, it must be observed that the creation of a new school district is an administrative matter addressed to the sound discretion of the board of education. The statute employs the word, ‘may,’ and contains no language indicating an intention by the Legislature to so demarcate the powers of a board of education as to prevent a bona fide reconsideration and rescission of such action within a reasonable time and before further procedure in perfecting the new plan of operation. In the instant case, neither the pleadings nor the agreed statement of facts discloses that anything whatsoever had been accomplished, except the adoption of the original resolution of October 8, 1934. There had been no ‘equitable division of the funds or indebtedness’ as the statute provides; however, it is of course true that none was necessary since the creation of the new district involved no division of an existing district but merely the merger of two entire ones. Nevertheless, with reference to the many remaining administrative matters necessarily incident to such a project, nothing had been done. Necessarily considering this question as one merely of power and not of policy, this court is of the opinion that under the circumstances of this case a board of education is not precluded from a reconsideration and rescission of its original action, as was done on January 8,1935.”

That quotation seems to us to be a complete answer to the argument that' the absence of an apportionment of the debts or mention of the subject in. the resolution renders it defective. It also recognizes the fact •that'following the passage of the resolution to create a new school district, many administrative acts must be performed before the new district can come into full operative existence. The appointment of a board of education for the new district is one of those administrative acts. There is no intimation anywhere that the selection of a board of education is made a condition precedent to the creation of the district over which it is to exercise jurisdiction.

In State, ex rel. Maxwell, Pros. Atty., v. Schneider, 103 Ohio St., 492, 134 N. E., 443, the funds were not apportioned in the resolution creating the new district. That was pleaded as a defense in an action in quo warranto between rival boards. As to this defense, the court, at page 499, said:

“The failure to apportion the funds and indebtedness between the newly-created district and Cass township rural school district, from which a part of the territory was taken, is also urged as a defense. However, the entries of the proceedings disclose that such order of apportionment of funds and indebtedness was in fact made, though at a subsequent meeting of the county board. A mere delay in taking such action cannot invalidate the proceeding creating the new district. ’ ’

Furthermore, as the new district is coextensive with the three districts it replaces and is an indivisible political unit, both the Ohio and the United States Constitutions imposed liability upon it for tbe entire outstanding indebtedness. To construe Section 4831-1, General Code, to require an express statement to that effect, would attribute to tbe Legislature an intent to impose upon tbe county board tbe making of a useless declaration of a constitutional duty. The statutory duty to make an equitable division of the funds and indebtedness must be limited to cases where such a division is possible. Where the reason for the rule ceases, the rule itself must cease.

So we conclude that the resolution of June 9, 1953, was, and is sufficient in substance and fixed the commencement of the thirty days within which a remonstrance could be filed.

It is urged also that the publication of notice of the passage of this resolution failed to comply with Section 4831-16, General Code (Section 3311.27, Revised Code). That section provides:

“The county board of education shall cause any resolution adopted by such board evidencing any action authorized by Sections 4831-1 and 4831-13 [Sections 3311.26 and 3311.23, Revised Code] to be published in one newspaper of general circulation in the territory affected, once each week for two consecutive weeks, and such publication shall be completed not later than the third Saturday following the adoption by the county board of education of such resolution.”

It is said that a summary of the resolution and not the resolution itself was • published. An examination of the published notice discloses that it informed the public that the county board had adopted a resolution under the authority of Section 4831-1, General Code, abolishing the Crosby, Harrison and Whitewater Local School Districts, and creating a new district. It is not claimed that the publication of the facsimile of the resolution would have more fully advised the public of the intent to abolish the three districts and create a new district, but the claim is that the statute requires the publication of the resolution and that nothing less will serve. That, it seems to us, would be sacrificing substance upon the altar of form. It is not claimed that anyone was misled by this publication, and it is our opinion that under those circumstances it must be held to be a substantial compliance with the statute. We so hold.

It is also urged that the publication ■ of the notice of the passing of the resolution did not conform to the statute as to the time of publication. The notice was published in the issues of a newspaper of general circulation in the affected territory of June 18, June 25, and July 2, 1953. The statutory requirement of notice is found in Section 4831-16, General Code (Section 3311.27, Revised Code), by which it is provided that the passage of the resolution should be published “once each week for two consecutive weeks, and such publication shall be completed not later than the third Saturday following the adoption by the county board of such resolution. ”

The resolution was adopted on June 9, 1953. By reference to the calendar of 1953, we find that the third Saturday after June 9th fell on the 27th day of June, 1953. It seems- to us sufficient to point out that the statute only requires publication of the required notice once each week for two weeks between the date of the adoption of the resolution and the third Saturday following the adoption of the resolution to demonstrate the sufficiency of this publication.

It should be stated that the evidence shows that unusual publicity was given at once to the adoption of this resolution. A petition of remonstrance was circulated, but was not filed because of failure to secure the signatures of a majority of the electors thereto.

Finally, it is contended that this consolidation <cannot be effected and the schools operated within constitutional tax limitations without drastically reducing the educational standard of the schools of the districts, and that., therefore, the county board abused its discretion in resolving to consolidate these local districts. Evidence was introduced showing the financial condition of each of these local districts and the effect of the consolidation upon the tax rate of each against the current duplicate that would be necessary to discharge the total obligations and operate the schools at their present level of efficiency. It is said that this evidence proves that the maximum levy would be 6.79 mills without a vote of the electors and that it cannot be assumed that the electors would favor an increased tax burden and that this would result in a deficit in the operating fund, or in the fund required to meet outstanding obligations, which latter contingency could not be indulged without • impairing the obligation of contracts contrary to the provisions of both the Ohio and United States Constitutions. This argument is based on the premise that the maximum permissible tax levy in the consolidated school district without a vote of the electors must be determined by the permissible tax levy without a vote of the electors in that local district that had most nearly exhausted its taxing power without such vote. It is said that otherwise a rate in excess of ten mills would be imposed upon the latter district. If this reasoning is adopted the effect would be to reduce the taxing power against the duo-lie ates in the other local districts to that same level.

We do not think the premise is supported by a proper interpretation and application of relevant constitutional provisions.

We are required to apply not only Section 2 of Article XII, but also Sections 2 and 3 of Article VI of the Constitution of Ohio. By Section 2 of Article VI, the General Assembly is enjoined to “make such provisions by taxation or otherwise as * * * will secure a thorough and efficient system of common schools throughout the state,” and, by Section 3 it was declared to be the policy of the state that “provision shall be made by law for the organization, administration and control of the public school system of the state supported by public funds: provided, that each school district embraced wholly or in part within any city shall have the power by referendum vote to determine for itself the number of members and the organization of the district board of education, and provision shall be made by law for the exercise of this power by such school districts.”

It will be noted that the Constitution framers took note of the fact that the state was divided inio districts for the administration of the schools. They had already provided by Section 7 of Article I that “it shall be the duty of the General Assembly to pass suitable laws * * * to encourage schools and the means of instruction.”

In 11 American Jurisprudence, 661, Section 53, it is said: “In construing a constitutional provision, it is the duty of the court to have recourse to the whole instrument, if necessary, to ascertain the true intent and meaning of any particular provision, and if there is any apparent repugnancy between different provisions, the court should harmonize them if possible. The rules of construction of constitutional law require that two sections be so construed., if possible, as not to create a repugnancy but that both be allowed to stand and that effect be given to each. ’ ’

It was in the light of this and other maxims of constitutional construction that the Supreme Court decided the case of Gigandet v. Brewer, Treas., 134 Ohio St., 86, 15 N. E. (2d), 964, which, in our opinion, is dis-positive of appellant’s contention. We quote the syllabus of that case:

. “When a school district is created by a county board of education by the consolidation of two districts under the provisions of Section 4736, General Code, and after an equitable division of funds is made, a levy of a tax outside the one per cent limitation prescribed by Article XII, Section 2 of the Ohio Constitution as amended on November 7, 1933, on all the property in the new district, for the retirment of bonds issued for the erection of a school building by a vote of the people in only one of the districts in 1926, is not violative of the aforesaid constitutional provision.”

Counsel in that case urged that by the schedule attached to Section 2 of Article XII at the time of its adoption certain bond issues were excepted and that the bond issue therein involved came within one of the exceptions. This bond issue had been authorized by one of the school districts, and the plaintiff was an elector and taxpayer in the other district with which it had been merged. The Supreme Court took notice of this contention and found that, so far as the district that had voted to issue the bonds, it clearly came within the exception contained in the schedule and that it remained within the exception after the consolidation, but the court went further and placed its conclusion that the plaintiff, although he had not had an opportunity to vote, was taxable at the same rate as those who had had an opportunity to vote on the bond issue. At page 95, the court said:

“Broad powers were granted to the Legislature with reference to passage of laws for the arrangement of districts, changing of boundary lines and the transfer of territory from one district to another under Article YI, Section 3 of the Constitution. The Legislature had the right to delegate the exercise of these powers to the county board of education. The only limitation upon the exercise of the power granted under Section 4736, General Code, is that the board cannot act unreasonably or in bad faith in effecting the creation of a new district. Board of Education v. Boehm, supra; State, ex rel. Maxwell, v. Schneider, supra.

“Construing the provisions and schedule of Article XII, Section 2 of the Ohio Constitution together with the express grants of authority contained in Article VI, Sections 1, 2 and 3, we are of the opinion that the provisions of Section 4736, General Code, are still valid, and that a remonstrance is the sole method of protest given the taxpayer. If a majority does not remonstrate against the consolidation, then levies in the several districts consolidated, which were inside the limitations, remain inside, and those levies which were outside the limitations remain outside.”

We think it is significant that there is no mention in the syllabus of that case of the bond issue falling within an exemption contained in the schedule attached to the constitutional amendment.

We are of the opinion that the county board has complied with the relevant law in ail substantial respects and has not been guilty of an abuse of discretion. We must conclude in the absence of evidence to the contrary that it will proceed henceforth to act in accordance with law and in the exercise of a sound discretion in relation to the subject matter.

For these reasons, the court finds on the issues in favor of .the defendants. A judgment entry may be presented in their favor.

Judgment for defendants.

Ross and Hildebrant, JJ., concur,


author: Fess, J.

text:
    Bachtel, Appellant, v. Bachtel, Appellee.
    (No. 4740
    Decided February 8, 1954.)

      Messrs. Burns S Kiroff, for appellant.

      Mr. Allen J. Conlcle, for appellee.
   Fess, J.

This cause is here on appeal on questions of law and fact from an order of the Juvenile Court finding plaintiff-appellant unfit to have custody of two minor children, aged .eleven and nine years; awarding their custody temporarily to the Child and Family Agency for placement in a foster home; and further ordering plaintiff to pay $20 per week for the support and maintenance of such children.

Notice of appeal on questions of law and fact was filed, and defendant-appellee moves to dismiss the appeal on the ground that the plaintiff failed to file a bond as required by Section 8005-7, General Code (Section 3109.07, Revised Code). Section 8005-7, General Code, had its origin in the act of April 14, 1893 (90 Ohio Laws, 186). It was included in Bates’ Annotated Ohio Statutes as Section 3140-1 and in the Ohio General Code as Section 8035. The word, appeal, as used in the statute, meant an appeal as distinguished from a petition in error, and in conformity with the procedure generally upon appeal, provision for a bond was made. After the adoption of the 1912 amendment of Section 6, Article IV of the Constitution, the Court of Appeals had only such jurisdiction as was conferred by that amendment and had no jurisdiction to entertain an appeal from an order relating to the custody and support of children. West v. West, 100 Ohio St., 33, 124 N. E., 888. As in the case of Section 12002, General Code, Section 8035, General Code, purporting to confer jurisdiction, was ineffective. Cf. Marleau v. Marleau, 95 Ohio St., 162, 164, 115 N. E., 1009.

But effective January 1, 1945, Section 6 of Article IV was again amended to read:

“The Courts of Appeals shall have original jurisdiction in quo warranto, mandamus, habeas corpus, prohibition and procendendo, and such jurisdiction as may be provided by law to review, affirm, modify, set aside, or reverse judgments or final orders:”

In Youngstown Municipal Ry. Co. v. City of Youngs town, 147 Ohio St., 221, 70 N. E. (2d), 649, the Supreme Court held that until there is legislative action which effects a change, the appellate jurisdiction of the Courts of Appeals remains as it was at the time the 1944 amendment was adopted. As in the case of Section 12002, General Code, Section 8035, although it remained in the General Code, is of no effect. Cf. Jelm v. Jelm, 155 Ohio St., 226, 237, 98 N. E. (2d), 401. But Section 8005-7, General Code, was enacted in 1951, after the adoption of the 1944 amendment. Without designating whether it is an appeal on questions of law or on questions of law and fact, it provides for an appeal to a “higher” court upon the appellant’s giving bond approved by the court from whose decree the appeal is taken. Since the Court of Appeals is one of the so-called “higher courts,” jurisdiction is thereby conferred upon the Court of Appeals to entertain this appeal. Section 12223-1, General Code (Section 2505. 01, Revised Code), provides that the word, appeal (as used in the Appellate Procedure Act), shall be construed to mean all proceedings whereby one court reviews or retries a cause determined by another court, an administrative officer, tribunal or commission.

In enacting Section 8005-7, General Code, the Legislature made no distinction between an appeal on questions of law and an appeal on questions of law and fact. Notwithstanding the provision for a cost bond on the appeal, it is difficult to conceive that the Legislature intended to afford the contending parties a trial de novo in the Court of Appeals in custody cases which involve no chancery jurisdiction. Having failed to denominate the appeal as one on questions of law and fact, we conclude that the appeal referred to in the section is one on questions of law only.

Section 12223-3, General Code, contemplates that every final order, judgment or decree of a court may be reviewed as provided in the Appellate Procedure Act, unless otherwise provided by law. Section 8005-7, General Code, provides no manner of review, nor is any time fixed for filing notice of appeal or the giving of bond. We therefore apply the provisions of the Appellate Procedure Act in the determination of the motion to dismiss the appeal. Section 12223-6, General Code, provides that no appeal shall be effective as an appeal on questions of law and fact unless and until a supersedeas bond is filed at the time the notice of appeal is required to be filed. But if a case can not be heard as an appeal on questions of law and fact because no appeal bond has been filed, the appeal is not dismissed but stands for hearing as an appeal on questions of law. Bauer v. Grinstead, 142 Ohio St., 56, 50 N. E. (2d), 334. The appeal designated as one on questions of law and fact is therefore dismissed, the motion to dismiss the appeal overruled, and the appeal retained for review on questions of law under the provisions of the Appellate Procedure Act upon the transcript of the docket and journal entries and bill of exceptions previously filed herein. The notice of appeal is amended to designate the orders of the court entered June 12,1953, and June 22, 1953, as the orders from which the appeal is taken, instead of the order of July 28, 1953, overruling the motion of the plaintiff for a new hearing.

The plaintiff and the defendant were married in 1941 and are the parents of the two children involved in this proceeding. Upon their divorce in March 1946, custody of the children, then four and three years of age, was awarded plaintiff and defendant was ordered to pay $40 per month for the support of the children. The cause was certified to the Juvenile Court for further proceedings. Defendant testified he had paid $798 pursuant to such order, but in February 1951, plaintiff was awarded a judgment in the snm of $1,372 for arrearage in payments. Defendant was purged from contempt, presumably because of inability to pay on account of mental and physical illness.

On June 20, 1952, defendant filed a motion for modification of the custody order of March 26, 1946, which, after a hearing and report of a referee, was dismissed on October 7, 1952. From the report of the referee, it appears that defendant refused to participate in the hearing because of the ruling of the referee excluding evidence of conduct prior to the divorce.

On April 2, 1953, defendant-again filed a motion to modify the support and custody order, in which motion he recited that on October 7, 1952, the court had entered the order denying his motion for custody and alleging that since such date there had occurred a substantial change in circumstances and that he had further evidence of neglect of the children by the mother.

This motion came on for hearing on June 12, 1953. Defendant ineptly attempted to support his motion without benefit of counsel. The court consistently sustained objections relating to any misconduct on the part of the plaintiff prior to October 7, 1952. Defendant failed to produce any evidence to support a finding that plaintiff was unfit to have custody of the children and at the conclusion of his examination plaintiff’s counsel moved to dismiss the motion. Thereupon the following transpired:

“The court: He hasn’t rested yet. You see, Mr. Burkhart, the custody and welfare of children is in-, volved here, and the court, in a récent hearing with which you are perfectly familiar through your law partner, Mr. Burns, has gone over the matter of the fitness of Mrs. Pettigrew at this time, to have custody of John, and it stands to reason that if the court has found her — which it has — unfit to have the custody of John, the same thing goes with reference to Mary and Harry. So, in order that you may have the benefit of the information which the court has about Mrs. Pettigrew, the court is introducing and receiving into this hearing the record in the Pettigrew case, for the purpose of appeal.

“Mr. Burkhart: I would like to enter an objection to that.

“The court: With that you rest your case, I take it, Mr. Bachtel?

“Mr. Bachtel: Yes.

“The court: You may proceed, Mr. Burkhart.”

Upon this appeal, error is assigned to the introduction and consideration by the court of the record in the Pettigrew case over objection of the plaintiff.

In determining whether improperly admitted and potentially prejudicial evidence prejudices an appellant or whether substantial justice has been done, a reviewing court should not weigh the other evidence or determine the credibility and effect of conflicting evidence, unless the weight, credibility and effect of that evidence is substantially in favor of the appellee. Hallworth v. Republic Steel Corp., 153 Ohio St., 349, 91 N. E. (2d), 690.

The mere fact that testimony has been given in a former proceeding between parties to a case on trial is no ground for its admission in evidence. Testimony given at a former trial is mere hearsay. Cf. 20 American Jurisprudence, 579, Section 686. It is definitely established that the admission of hearsay evidence requires reversal, unless it manifestly appears that its admission could not have prejudiced the party against whom it was offered. James Wilson & Co. v. Barkalow, 11 Ohio St., 470; Sherer v. Piper & Yenney, 26 Ohio St., 476.

The Supreme Court will take judicial notice of the record in a case previously before it involving the same subject matter and party. State, ex rel. Galloway, v. Industrial Commission, 115 Ohio St., 490, 154 N. E., 736; Hughes v. County Board of Revision, 143 Ohio St., 559, 56 N. E. (2d), 63. But the Common Pleas Court may not take judicial notice of a former action in the same court and what may have occurred therein even though the trial judge may have presided in the other case. Myers v. State, 46 Ohio St., 473, 22 N. E., 43; Hamilton v. Ohio State Bank & Trust Co., 20 Ohio App., 493, 496,152 N. E., 731; Burke, Exrx., v. McKee, 30 Ohio App., 236, 238, 164 N. E., 776; Foltzer v. City of Cincinnati, 70 Ohio App., 127, 36 N. E. (2d), 192; Wainscott v. Young, 74 Ohio App., 463, 466, 59 N. E. (2d), 609; Opperman v. Opperman, 77 Ohio App., 69, 65 N. E. (2d), 655 (former divorce proceeding between different parties in the same court); Ward v. Ward, 90 Ohio App., 108, 103 N. E. (2d), 582.

An exception to the rule excluding hearsay is provided in Section 11496, General Code (Section 2317.06, Revised Code), but under that section a party seeking to introduce former testimony of absent witnesses must show valid excuse for nonproduction of such witnesses. New York Central Rd. Co. v. Stevens, Admr., 126 Ohio St., 395, 185 N. E., 542, 87 A. L. R., 884. Furthermore, the testimony introduced upon the hearing in the instant case was not taken in a case involving the same parties. It is recognized that the application of the rule of exclusion to the instant proceedings is technical and unrealistic, since the trial court as well as the members of this epurt are fully apprised of the conduct of plaintiff, disclosing her to be unfit to have custody of these children. Nevertheless, established rules of procedure must be respected, and a failure to comply therewith constitutes error prejudicial to the complaining party.' We have reviewed the provisions of the Juvenile Court Act to ascertain whether a more liberal rule with respect to the introduction of evidence is provided, and find none. This proceeding was not one involving dependent or neglected minor children. Hard cases make bad law, and to approve an exception to the hearsay rule in the instant case could well open the door to admission of testimony in other cases to the serious detriment of litigants. The judgment must therefore be reversed and the cause remanded for a new trial.

Since the cause is to be remanded for a new trial, we volunteer the following comment. We have recently had the disagreeable task of reviewing the record upon appeal in the Pettigrew case and have considered it upon the instant appeal in determining its prejudicial character.

It reveals that plaintiff was remarried to one Samuel H. Pettigrew on July 27, 1946, and one child, John Pettigrew, was born as the issue of this second marriage, on January 31, 1947. On June 19, 1953, a.petition for divorce of the plaintiff, Mary Pettigrew, was dismissed and upon the cross-petition of Samuel II. Pettigrew, Mary was found guilty of gross neglect of duty and a divorce was granted. Without specifically finding that either parent v/as unfit to have custody of the child, the judgment ordered that the custody be awarded the Child and Family Agency for placement in a foster home and that the defendant, Samuel, pay the sum of $10 per week for the support of the child John Pettigrew. The record in the Pettigrew case discloses pitiably sordid conduct on the part of the plaintiff and the defendant. They are endowed with more than average education and intelligence, but during their marriage participated in organizations later discovered to be subversive in character. Each of them disclaimed membership in the Communist Party.

Upon the appeal from the judgment entered in the Pettigrew case, it was intimated that the action of the trial court was influenced by plaintiff’s participation in these organizations. In the record in the Bachtel case, the court remarked:

“Mr. Burkhart, one thing that has happened since October 7, 1952, is that Mrs. Pettigrew has been divorced from Mr. Pettigrew, and the court has learned through the trial that went on two or three days, I forget how long, of her, shall we say, ‘pink’ tendencies, her pink affiliations or connections. ’ ’

That a parent may be a fellow traveler is insufficient to support a finding that such person is unfit to have the care and custody of a child. But the record discloses the vicious result of flirting with communist philosophy. Although intelligent and well educated, there resulted a breakdown in observance of moral standards and rectitude which afforded a basis for awarding custody of the child to the Child and Family Agency. Nor can criticism be directed to proper affiliation with members of another race in the interest of promoting racial tolerance and good will. But the record reveals that the plaintiff surreptitiously entertained members of the opposite sex and another race at night in her home. Under such circumstances, extra-marital relations by a wife, whether it be with her own or that of another race, imports conduct revealing unfitness to have custody of minor children. After reviewing the record in the Pettigrew case, we promptly affirmed the judgment.

As above indicated, objections were sustained to the introduction of any testimony concerning the conduct of the plaintiff prior to October 7, 1952. We agree with the salutary rule announced in Rauth v. Rauth, 73 Ohio App., 564, 57 N. E. (2d), 266, and White v. White, 77 Ohio App., 447, 66 N. E. (2d), 159, that in a hearing on a motion to modify an order awarding custody of a child, evidence tending to show unfitness of the custodian, at or before the time such award was made, is not admissible and that only evidence of unfitness of the custodian since the time of the award may be introduced. The best interests of the children as well as the parents require that the matter of custody of minor children should not be reopened and the controversy renewed unless there has occurred a substantial change in circumstances since the original award. But in the instant case, the defendant misnamed the order which in reality he sought to modify. Merely because he failed to secure modification upon his 1952 motion does not require exclusion of testimony disclosing misconduct between the time of the original award and the time his previous motion was dismissed. It is evidence of conduct at and prior to the time of the original order of March 1946, that is to be excluded under the rule.

We also feel impelled to make this further comment. Section 8002-3, General Code (Section 3103.03, Revised Code), provides that the husband must support himself, his wife, and his minor children out of his property or by his labor. Section 8005-3, General Code (Section 3109.03, Revised Code), provides that when husband and wife are divorced and the question of the care, custody and control of their offspring is brought before a court, they shall be upon an equality as to the care, custody and control of such offspring, as far as parenthood is concerned. But Section 8005-3, General Code, does not relieve the father of his primary obligation to support his minor children as required by Section 8002-3, General Code. The liability of the father to support his minor children is primary and that of the mother secondary, and the mother is not required to support such children unless the father is unable to do so. Kintner v. Kintner, 78 Ohio App., 324, 65 N. E. (2d), 156. Cf. Mark v. Mark, 145 Ohio St., 301, 316, 61 N. E. (2d), 595, 160 A. L. R., 608; Tullis v. Tullis, 138 Ohio St., 187, 191, 34 N. E. (2d), 212.

The record reveals that defendant wholly lacks parental responsibility. He is a doless drone affected with hypochondria which has thwarted gainful employment. We realize that the Juvenile Court is all too frequently confronted with these slothful pariahs of society, but upon rehearing we respectfully suggest that before relieving defendant from his primary obligation of support he be required to show his inability to do so upon competent evidence, rather than to relieve him upon his uncorroborated statement of his inability, evidenced by his failure to comply with the order of the court.

A persuasive inference arises from the record that defendant is not motivated by affection or any real desire to protect the welfare of his children, but is actuated by vindiction toward his ex-wife. His effrontery is exhibited by his unwillingness to support his children and at the same time he urges that they be removed from the care and custody of their mother but at her expense — not his. It may be further observed that his condition of health was not so poor as to prevent him from spying, night after night, upon the peregrinations of Mary Pettigrew in obtaining evidence to be presented by Sam Pettigrew at the trial of his divorce action. At the risk of effrontery on our part, we respectfully suggest consideration should be given toward finding defendant in contempt and commitment to the house of correction for failure to comply with his obligations to support his children and the order of the court to that end. A period of forced employment might be conducive to relieving him from a delusion that he is unable to meet his parental obligations.

"With considerable regret, the judgment is reversed and the cause is remanded to the Juvenile Court for further proceedings.

Judgment reversed.

Conn and Deeds, JJ., concur.

      However, in Bower v. Bower, 90 Ohio St., 172, the Supreme Court had previously held that an appeal could be taren under Section 8085.


text:
    Republic Light & Furniture Co., Appellee, v. City of Cincinnati, Appellant.

      (No. 7834
    Decided April 26, 1954.)

      Mr. Jerome Goldman, Mr. John A. Benjamin and Mr. Julian Rubin, for appellee.

      Mr. Henry M. Bruestle, city solicitor, Mr. Maurice W. Jacobs and Mr. Wallace M. Power, for appellant.
   Ross, J.

A motion to dismiss this appeal on questions of law has been filed, with an alternate motion to affirm the judgment below. The ground stated in these motions is that “there has been no appealable order in this case in the court below.”

From the record it appears that the trial to a jury resulted in a verdict for the defendant. At the conclusion of all the evidence, a motion for an instructed verdict was filed by the defendant and overruled. The plaintiff, after entry of judgment for defendant, filed a motion for a new trial, which was granted and the judgment entered on the verdict was vacated. Defendant filed an appeal on questions of law from the granting of the motion for new trial and vacating the judgment in its favor and from the action of the trial court in overruling defendant’s motion for an instructed verdict.

It is the claim of the plaintiff that there was no abuse of discretion in granting the motion for new trial, and, hence, such action of the trial court did not constitute a final order. This contention will be sustained. No abuse of discretion appears in the action of the trial court.

The contention of plaintiff is that the action of the trial court in overruling defendant’s motion for an instructed verdict was never journalized, and, hence, under the provisions of Section 2505.07, Revised Code, amended effective October 27, 1953, there is no appeal-able order.

Counsel for plaintiff misconstrue the effect of this section, which, inter alia, provides “after the journal entry of a final order” etc., an appeal may be perfected within certain periods. The effect of the contention of counsel for plaintiff is to read into the statute the word, “only.” Since the cases of Davis v. Turner, 69 Ohio St., 101, 68 N. E., 819, and Hurt v. Charles J. Rogers Transportation Co., 160 Ohio St., 70, 74, 113 N. E. (2d), 489, the overruling of a motion for an instructed verdict has been held to be a final order.

Counsel for plaintiff claim also that the first paragraph of the syllabus in Hurt v. Charles J. Rogers Transportation Co., supra, also sustains their contention. Again, the statement is in the affirmative of a right, but does not negate the rule that the action of the trial court in overruling a motion for instructed verdict is a final appealable order, after the action of the trial court vacating a judgment on the verdict and granting a new trial is entered on its journal. A reading of the opinion will sustain this statement.

Under the state of this record, the court has spoken through its journal. It has spread an entry on the journal in which it vacated the judgment in favor of the defendant and granted plaintiff a new trial.

The final order was the refusal to grant the defendant’s motion and qualifies under the definition in Section 2505.02, Revised Code.

Section 2505.07, Revised Code, amended effective October 27, 1953, is a statute fixing the times for filing notices of appeal, and as applied to the instant appeal requires that the notice of appeal from the adverse action of the trial court, constituting a final order, shall be filed within 20 days from the journalized entry of the trial court, vacating the judgment on the verdict in favor of the defendant and granting the plaintiff’s motion for a new trial, which was done.

The motion to dismiss the appeal is overruled.

The character of defendant’s appeal requires an examination of the entire record to determine whether there was any substantial evidence to sustain the plaintiff’s cause of action alleged in the petition.

The action is predicated upon a break in a water main under a thoroughfare in the city of Cincinnati, which, it is alleged, was the proximate cause of damage to plaintiff’s goods stored in a cellar, which was partially flooded by water from the broken main.

The plaintiff alleged in his second amended petition the following specifications of negligence:

1. That the defendant “kept water pressure in said main greater than said main was designed or installed to carry.”
2. That “defendant failed to make a reasonable inspection of said main to determine its condition, although said water main had been installed more than fifty years prior to December 1949,” the time when it broke.
3. “In that defendant failed to replace or repair said main, although it knew, or should have known, that it had become corroded and in a weakened condition. ”
4. “In that defendant failed to have sufficient detecting and warning devices to give notice of the weakened condition of said main.”
■ 5. That after defendant knew of the break in the main and had workmen on the scene, it failed to pump the water from plaintiff’s basement.
■ 6.- That deferidant failed to notify plaintiff of the break and that water was running into plaintiff’s basement.

The plaintiff was under the burden of proving that one or more of these allegations of negligence was the proximate cause of his alleged damage.

Negligence may not be presumed merely from proof of injury to plaintiff’s property caused by some act of the defendant. The burden is upon the plaintiff-to prove by a preponderance of the evidence that the defendant failed to exercise the care which a reasonably prudent person is accustomed to exercise under the same' or similar circumstances, and in ¡this case the care which reasonably prudent operators of waterworks are accustomed to use under circumstances similar to those existing in the instant situation (29 Ohio Jurisprudence, 650, 651, Negligence, Sections 165,166). Where the standard of care is not of such a character as to be a matter of common knowledge to a jury, the burden rests upon the plaintiff to introduce substantial evidence from which a jury may reasonably infer the standard of care appropriate to the situation developed by the evidence. Englehardt, a Minor, v. Philipps, 136 Ohio St., 73, 23 N. E. (2d), 829.

Plaintiff alleged that the injury to his stock consisted of the soaking of cardboard cases, causing damage to their contents, consisting of furniture, appliances, electric lamps and shades.

The defendant answered, admitting the break in the main and notice thereof and denied the other allegations of the second amended petition. Defendant for a second defense, alleged that plaintiff was guilty of negligence contributing to the injury of his stock.

From the evidence, it appears that the plaintiff conducts the business of a retail furniture store, fronting on 418 Main Street, in the city of Cincinnati. The rear of the building abuts on Lawson Alley, and has a basement, which extends along such alley.

Shortly before three o’clock a. m. on December 17, 1949, the Cincinnati police department notified the Cincinnati water works department that water was flowing on the surface of Lawson Alley. In response to such notice, the employees of the city had cut off the water supply to the six-inch main imbedded in Lawson Alley within 15 minutes after receipt of the notice. Repeated efforts were immediately made to gain entrance to the locked and unattended premises of the plaintiff, but without effect.

Evidence was introduced by plaintiff showing that the residence addresses of officers of plaintiff company were listed in the city directory.

Upon making an excavation in Lawson Alley, it was discovered that the six-inch cast iron pipe therein contained a, small crack on the upper side. There was no water in the excavation. Two feet of the 12-foot section of the pipe were cut out and replaced by a new piece of pipe. The rest of the section of pipe was in perfect condition and had not been disturbed at the time of the trial. No further leakage occurred. The excavation was filled and the alley was opened to service within six hours after the leak was reported. Pumps, although available on trucks present while the repair of the main was being effected, were not used after access was obtained to plaintiff’s premises, for the reason that only three inches of water stood in the basement of the premises and the pumps, owing to suction entrance in the hose being located three inches from the end would not pump the three-inch level of the water in the basement- Such water immediately ran down the drain in the basement when a pasteboard carton was removed from the drain. Employees, of the city mopped up the remaining pools of water lying in depressions in the floor of the basement.

Although not germaine to the instant question (the right of the defendant to au instructed verdict), it appears that plaintiff would not permit removal of the cartons in the basement owing to inconvenience due to the Christmas sales, and considerable damage resulted to the contents of cartons stored in the basement due to capillary attraction. It is probable that such damage would not have occurred if the cartons had been placed where they could be dried. Also, it is clear that had the drain in the basement pot been covered, no damage would have occurred.

From the evidence it appears that the six-inch water main in question was installed in 1894, and, like many other such mains, functioned without loss up to the time of trial, and that even the remaining 10 feet of the section repaired were in perfect condition and not replaced.

It appears also that there had been no change in the pressure carried in such main during the period from the time of its installation.

The main was of a type known as vertical cast iron, generally approved by those installing and maintaining water mains.

There is evidence that the failure of the affected portion of the section of the main was due to an erosion caused either by a “scouring” process due to movement of the adjacent soil, or to a species of electrolysis, caused by transient currents of electricity, originating from sources other than those controlled by the city. This latter cause removes any claim to the application of the doctrine of res ipsa loquitur.

There was evidence that breaks in the various mains in the city occurred to the extent of 250 to 300 a year. The evidence fails to show (even if controlling) that such breaks were in mains similar to the one herein involved, under similar pressure, of the same life, or in other ways identical in character with the main :n question. It is questionable whether such evidence was even competent.

It is the claim of the plaintiff that there was substantial evidence indicating that inspection could have been made which would have prevented the loss for which plaintiff seeks recovery.

The attempt to prove such claim occupies a large part of the record. To review such evidence here would unduly extend this opinion. It is sufficient +o say that after examining all the evidence submitted, no substantial evidence appears justifying the conclusion that any feasible or reasonable method of inspection would have disclosed the imminence of a failure in the particular section of the main herein involved.

In addition, there was a complete failure in the attempt to show a standard of care employed by those situated similarly to the defendant. Proof of such standard of care is required. Englehardt, a Minor, v. Philipps, supra.

It is asserted that the rules set out in Doud v. City of Cincinnati, 152 Ohio St., 132, 87 N. E. (2d), 243, and City of Portsmouth v. Mitchell Mfg. Co., 113 Ohio St., 250, 148 N. E., 846, 43 A. L. R., 961, are here applicable. It must be perfectly obvious that the feasibility of examining a sewer is quite different from that of inspecting a water main. The sewer is an open conduit. The main is a closed cast iron pipe, full of water, buried several feet under the surface of a paved street, upon which the adjacent property is dependent for continuous service, which, if cut off for any extended period of time, would cause great damage.

Again, the flow of a sewer can be observed, and any failure in its function may be ascertained by examination at manholes or exists. It is also comparatively easy to observe the presence of trash or other substance which may cause a failure in the sewer, if permitted to enter it. Such was the situation in City of Portsmouth v. Mitchell, supra.

No evidence was submitted from which it could be concluded that the city should have been put on notice of the prospect of possible failure of the water main here involved.

In A. J. Brown & Sons, Inc., v. City of Grand Rapids, 265 Mich., 465, 469, 251 N. W., 561, it is stated:

“Plaintiff falls back upon the contention that there were no proper tests or inspections conducted by the city, but suggests no reasonable tests or methods of inspection. The testimony reveals with certainty that there were no similar breaks in the near vicinity. If it was incumbent upon the city to make such tests and inspections as are demanded by plaintiff, at places where there had been no previous trouble, it would mean that the city would constantly be obliged to dig up its streets and inspect its water mains. The further question arises as to how frequently, in that eventuality, such inspection should be made. If the city should apply the knife test to all of its mains after they were exposed by excavations, and a leak should occur shortly thereafter as a result of electrolysis, would the city be responsible for improper inspection? The expense-of maintaining a system under those circumstances would be such as to make the cost of supplying water almost prohibitive. ’ ’

The burden rests upon the plaintiff to show that its damage was the proximate result of the city’s failure to inspect this particular main. It is not clear that had this main been exposed for inspection 10 days before the break that unless a most careful examination had been made of the exact spot where the leak occurred, the leak would have been prevented. Can it be that periodically (how often) the city is required to expose the miles of pipe employed and scrape or otherwise test each inch of each section of pipe, or, not doing so, be compelled to respond in damages for the result of a leak, the imminence of which it had not the slightest notice? Our answer is, that it is not so required.

There is no evidence that any number of cities, similar, to the city of Cincinnati, employ any methods of inspection which would have disclosed the imminence of a break such as occurred in the water main in question. See Englehardt, a Minor, v. Philipps, supra.

This court, in Taphorn v. City of Cincinnati, 96 Ohio App., 454, reached conclusions similar to those here entertained.

One of the specifications of negligence alleged by plaintiff is that the city failed to use proper care to prevent injury to plaintiff’s property after the break in the main was discovered.

The flow of water in the main was shut off within 15 minutes after notice to the waterworks department of the break. Every effort was made immediately and during that period and thereafter to gain access to the premises of the plaintiff. It is asserted by plaintiff that the city should have had resort to the city directory and then called up an officer of the plaintiff company. In the first place there is no evidence that if this had been done in the time necessarily involved In such action, that no water would have reached the premises of plaintiff or that the damage suffered would not have occurred, and especially as plaintiff permitted a carton to remain over the drain in the basement and other cartons to remain untouched in the basement for a considerable period after the water in the basement had flowed out through the drain in the basement.

Nor can we bring ourselves to hold that there is a duty upon the city to employ such extraordinary methods of securing entrance to the securely locked and unattended premises of plaintiff where no method of gaining access to the premises was indicated thereon. There is no evidence that the city could have had more reason to anticipate a leak than had the plaintiff.

It is the conclusion of this court that there was submitted to the jury no substantial. evidence showing that the plaintiff had sustained any of its specifications of negligence constituting a proximate cause of its damage, and that, therefore, the motion of the defendant for an instructed verdict should have been sustained. This court, therefore, enters final judgment in favor of the defendant, which judgment the trial court should have rendered.

Judgment accordingly.

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