author: Siceel, J.

text:
    Behan, Appellee, v. The Cincinnati Street Ry. Co., Appellant.
    (No. 6635
    Decided June 13, 1946.)

      Mr. Qurdon Wilson and Mr. Henry Beebe, for appellee.

      Mr. Leo Brumleve, for appellant.
   Siceel, J.

This cause comes to this court on an appeal on questions of law from a judgment for the plaintiff in the Common Pleas Court of Hamilton county.

The plaintiff, appellee herein, on November 2, 1945, was a passenger on a bus of the defendant, appellant herein, which was being operated on its CumminsvilleOakley line. The plaintiff seated herself in the middle of the bns. The operator proceeded on his course until he came to a place on his route where the bus was heading west on Erie avenue and was stopped at the intersection of Erie avenue with Delta. avenue. When the operator stopped at this point the bus was at an angle so that the front end was at the curb and the rear end some distance out in the street. All the passengers, except the plaintiff and one other, had been discharged before reaching this point and from this point, that is the intersection of Erie avenue and Delta avenue, the bus was to proceed to the garage. While standing at this intersection the operator was engaged in changing the sign to show that his destination from this point was the garage. While he was in the act of making such change the plaintiff left her seat in the middle of the bus and approached him to inquire whether she might ride to a point a few blocks further west which in fact was her destination. The operator gave his consent and she thereupon started to return to her seat in the middle of the bus and in doing so passed all the empty seats in the front part. The construction of the bus was such that there are two side seats in the front, one on each side, the one on the right side providing space for three passengers and being located directly to the rear of the front entrance and exit door, and the one on the left being directly behind the operator and providing space for two passengers. Directly to the rear of these side seats are four seats, two on each side for two passengers each, facing the front of the bus. Back of these seats and in the middle are two more side seats for two passengers each and back of these seats to the rear are four more seats, two on each side, for two passengers each, facing the front of the bus. At the rear of the bus there are two side seats directly behind the cross seats last described and then a long seat across the rear end. At the front entrance there is a vertical grab bar at the right qí the front entrance and a horizontal bar about as high above the floor as the back of the seats, running from the entrance way to a point near the operator’s seat. There are also two vertical grab bars, one on each side, directly ahead of the side seats in the middle of the bus as above described. There are also two horizontal grab bars fastened to the roof, one on each side, and running the entire length of the bus. There is also a hand hold fixed to the inner top of - the end of the backs of each of the cross seats, that is, next to and along the aisle or passageway running through the middle of the bus from front to rear.

The plaintiff claims to have gotten to a point just past the first four cross seats when the bus started with a violent- and sudden jerk; thereby she was first pitched from side.to side and then caused to fall and as a result she claims to have sustained certain injuries.

The defendant seeks to reverse the judgment rendered against it, claiming:

(1) That the court committed reversible error in refusing to give two special charges which were submitted in writing and requested to be given to the jury before argument.

(2) In refusing to amplify the general charge as requested on the subject of the credit to be given to the testimony of the several witnesses.

(3) That the verdict is manifestly against the weight of the evidence.

The plaintiff was the only fact witness on her own behalf and on direct examination, in describing her fall, testified as follows:

“ * * * and I went up and talked to the operator and asked him if he was going to the barn, which he said he was, and I said, ‘well, leave me out at Monteith avenue.’ , And I went to return to my seat. I hadn’t yet got all the ways back when he was twisting the what-do-you-call-it to change the sign to the barn, and on my return back he started up so sudden that I was thrown from one side to the other and the next thing I went down and came down on my arm and my arm went right, under me, and I was lying there in that bus, and this young lady — I don’t know what she was — called to the bus driver to come back.” * * *

“Q. What kind of a jerk? A. It was sudden. It was sudden because if it wasn’t sudden I would have tried to grab on to something.

“Q. Did it cause you to sway in that car? A. I swayed this way and that way.

“Q. And then you fell over on your left side? A. Yes. I knew I was coming down and to-save my head I wént this way and held this way on the bus.”

On cross-examination the plaintiff, after acknowledging that when her depositions were taken she had testified that the bus moved about 20 feet before she fell, further testified:

“Q. Now, in the space of that 20 feet that the bus went you were walking back and you were not holding on to anything, were you? A. No, I was going to get to my seat.

“Q. I say you weren’t holding on to anything? A. No.

“Q. I see. A. Because I didn’t get a chance to hold on. I swayed from one side to the other.

“Q. I don’t want to argue with you, I’m just asking you the fact you didn’t hold on to anything did you? A. No.”

The only other passenger on the bus and the bus driver botli testified that the bus started in the usual way and that it did not start with a violent or unusnal jerk or sway from side to side.

Upon a consideration of the entire record, the court is not unanimously of the opinion that the verdict and judgment are manifestly against the weight of the evidence and that claim of the defendant is therefore overruled.

We now come, to the charges requested on behalf of defendant before argument. At the conclusion of the taking of the testimony in the case, the defendant requested the court to give seven instructions to the jury, which had been reduced to writing and as thus written were presented to the court. The court gave five and refused to give two of these charges. The charges given in substance dealt with the following-subjects :

1. That both sides stand equally before the court and the jury must not permit sympathy or prejudice to affect their verdict.

2. That plaintiff has the burden of establishing one or more of her claims of negligence by the preponderance of the evidence and if she fails in this respect the verdict must be for the defendant.

3. That the common carrier of passengers is not the insurer of the safety of its passengers and a passenger in taking passage on the defendant’s vehicle assumed all the riks ordinarily incident to the management of such vehicle, and if she lost her balance and fell because of any jerks or other motion of the vehicle, which were ordinarily incidental and reasonably necessary in its proper operation, then the defendant would not be liable for injuries sustained in such fall.

4. That it was not negligence as a matter of law for the bus to start after passengers are safely aboard but before they have been seated.

5. That if the plaintiff was negligent and her negligence in the slightest degree proximately contributed in causing her injuries then she cannot recover.

The charges that were refused were as follows:

“1. The court charges you that, if you find that plaintiff lost her balance and fell because of the movement of the bus and that such movement was necessary in the practical operation of the bus, then there is no negligence on the part of the defendant and your verdict must be for the defendant, The Cincinnati Street Bailway Company.

“2. The court charges you that it was the duty of the plaintiff to exercise ordinary care for her own safety when she was a passenger on this bus, and if you find that ordinarily prudent persons under the same or similar circumstances as the plaintiff was in on said bus would have supported themselves by holding or gripping any of the- facilities provided by the defendant on its busses to support its passengers and plaintiff failed to do so, then she was'negligent. ”

The subject of the first charge refused was fully covered under No. 3 of the special charges given and therefore it was not prejudicial error to refuse such request.

The second charge refused was a correct statement of the law. The evidence, a part of which is set forth above, completely described the interior of the bus and the provisions therein provided for the convenience of passengers in guarding against changes of momentum and jerks naturally incident to its practical operation in carrying passengers for hire. Whether the plaintiff conducted herself as an ordinarily prudent person would have acted under similar circumstances is clearly an issue in the case.

The case of Sharpsteen v. Cincinnati Street Ry. Co., 27 Ohio Law Abs., 202, 31 N. E. (2d), 885, decided on February 7, 1938, had for consideration this identical question. In that case the plaintiff had boarded a street car and while she was still on the rear platform the car started and stopped suddenly with a jerk whereby the plaintiff was thrown against the fare box and injured. There was a grab bar on the platform and the defendant requested and the court gave the following special instruction before argument:

“The court charges you that it is the duty of the plaintiff to’ exercise ordinary care for her own safety while a passenger on a street car — that is, she must do what an ordinarily prudent person would do under the same or similar circumstances — and that the defendant, in the operation of its car, has a right to assume that the plaintiff will exercise such care when she becomes a passenger on the street car.

“The court further charges you that if you find that ordinarily prudent persons under the same or similar circumstances would have supported themselves by the rod on the platform, and that plaintiff failed so to do, then she was negligent; and, if you find that she was negligent and that such negligence directly contributed, in the slightest degree to the cause of her injuries, then the plaintiff cannot recover and your verdict must be for the defendant, the Cincinnati Street Railway Company.”

The reviewing court, in holding that the trial court was correct in giving such special instruction, said:

“This charge does not declare that any stated conduct is negligence. It submits to the jury for its determination whether ordinary care required that the plaintiff should have supported herself by holding to the rod on the platform * * *.”

But the plaintiff in the instant case, in seeking to justify the failure to give this instruction, asserts that it was not complete in that it omitted the elements of contributory negligence and proximate cause. Upon this subject it must be noted that special request No. 5 which was given, completely covered the questions of contributory negligence and proximate cause as it has reference to the plaintiff’s conduct and therefore if it was necessary to include these questions to have a complete charge, it was in fact done and the plaintiff’s claims are without foundation. However, in making the requests for this special instruction it is not necessary to cover all the issues. A party may select just one legal proposition and if it is a correct statement of law applicable to an issue in the case which is supported by some evidence, the court must, under paragraph 5 of Section 11420-1, General Code, give such instruction to the jury when timely and properly presented.

In Washington Fidelity National Ins. Co. v. Herbert, 125 Ohio St., 591, 183 N. E., 537, the Supreme Court set aside a judgment for plaintiff and granted a new trial for the failure of the court to give the following special instruction before argument:

“Ladies and gentlemen of the jury, I charge you that if you find the intersection of Seventh and Walnut streets in the city of Hamilton, Ohio, was on March 27, 1930, a closely built-up or business portion of said city of Hamilton, Ohio, then I charge you that any rate of speed in excess of twenty miles per hour at that point was prima facie unlawful. ”

The case involved the liability of the insurance company for the death of the assured when the policy exempted the insurance company from such liability where death was caused while the assured was under the influence of intoxicating liquor or acting in violation of any law. The court held:

“1. Section 11447 [11420-1 (5)] confers upon parties to civil actions the,absolute right to have instructions, when presented in writing, given to the jury before argument if so requested, provided the same be a correct statement of the law, pertinent to one or more issues and applicable to evidence adduced in the case.

“2. Error in refusing to give such requested charge before argument is not cured by giving the same instruction in substance or in terms in the general charge.”

The plaintiff herein, in support of her claim that the charge was incomplete, cites the case of Uncapher v. B. & O. Rd. Co., 127 Ohio St., 351, 188 N. E., 553. In that case plaintiff was injured in a crossing accident at the intersection of the B. & O. and Nickel Plate tracks with East Market street in the city of Lima, Ohio. When plaintiff came to the crossing a Nickel Plate passenger train was moving over the intersection and a B. & O. crossing watchman was standing in the center of East Market street waving a red lantern.' When the passenger train passed, the watchman started toward his shanty and plaintiff believing the way to be clear and that the crossing watchman’s conduct was an invitation to proceed, started across the tracks when the rear of his car was struck by a southbound B. & O. freight train which had been approaching the -intersection on the track closest to the place where plaintiff had stopped his automobile. The plaintiff testified that after the Nickel Plate passenger train passed to the south he did not look to the south to see if a train was proceeding on the track nearest to him. The defendant’s answer alleged that the accident was due to the sole negligence of plaintiff and also alleged contributory negligence and from the plaintiff’s own lips evidence was given in support of either or both of these claims.

At the conclusion of all the evidence defendant requested the following special instruction in writing:

“The court charges you, as a matter of law, that if you find, from a preponderance of the evidence, that the plaintiff’s own negligence in any degree contributed to the causing of the collision and his resultant injuries, plaintiff cannot recover and your verdict must be for the defendant, no cause of action.”

In the opinion, on page 365, the court in discussing the claimed error in that charge said:

“We find that there was error in the charge because of its prolixity and repetitious character. * * * That the trial court erred in giving to the jury special instruction No. 1, not that the charge was not germane, but that it was incomplete in that it omitted the element of proximate cause.”

Such a statement is rather confusing when in examining the charge criticized, it is found to include the words that if “plaintiffs own negligence in any degree contributed to the causing of the collision * * But in any event the charge that was requested was on the subject of contributory negligence and its effect upon the right of plaintiff to recover. Such a charge must of necessity include the question of proximate cause and if omitted would be incomplete. But the special instruction that was asked of the court in request No. 2 in the case now before us was as to whether the conduct of the plaintiff under the circumstances constituted. negligence. It clearly stated the law on that question and was therefore complete. The question of proximate cause was a separate and distinct issue. Because of the closeness of the evidence on both negligence and contributory negligence in this case, it was especially incumbent on the court to fully and' completely charge the jury on all of.these issues, including the giving of the requested charge No. 2 which was directly pertinent to the question of contributory negligence. The court’s refusal to give such requested instruction before argument, because it was erroneously held to be incomplete, was prejudicial to the defendant’s rights and constituted reversible error.

The remaining assignment of error has to do with the refusal of the court to amplify the general charge on the subject of the duty of the jury to determine the credibility of the witnesses. The court in its general charge said on this subject:

“You are the sole judge of the weight of the evidence and the credibility of the witness. ’ ’

At a-later place in the charge the court explained what was meant by “the weight of the evidence” but did not further explain the jury’s duty in determining the credit they would give to the testimony of the several witnesses. After the charge had been completed the defendant called the omission to the court’s attention in the following manner:

“I also want Your Honor to charge the jury that in considering the credibility of the witnesses they can take into consideration the interest that they have in the outcome of the lawsuit, the relationship of the parties, the bias or prejudice that they may have displayed upon the witness stand, the candor or lack of candor, or any other thing which they feel would be implied from the testimony of the witnesses.”

The court refused, saying that the matter requested had been covered in one of the special charges. In this the court was in error. None of the special charges given before argument dealt with the credibility of the witnesses. The defendant’s request was entirely proper and the court should have granted it. But we do not believe that failure to grant the request was prejudicial and therefore it did not constitute reversible error.

For the reasons above stated the judgment of the trial court is reversed and the cause remanded for further proceedings according to law.

Judgment reversed.

Doyle and Morgan, JJ., concur.

Doyle, J., of the Ninth Appellate District, and Skeel and Morgan, JJ., of the Eighth Appellate District, sitting by designation in the First Appellate District.


source: Caselaw Access Project

author: Matthews, J.

license: Public Domain

text:
    Fishback, Appellee, v. Norman, Appellant.
    (No. 6660
    Decided May 20, 1946.)

      Messrs. Gray cion, Head é Ritchey and Mr. John W. Warrington, for appellee.

      Mr. Fred L. Hoffman and Mr. Joseph D. Martin, for appellant.
   Matthews, J.

This is an action to recover damages for injuries resulting from a collision between two automobiles. The defendant filed a cross-petition in the action. Each party attributed the collision to the negligence of the other.

The jury returned a general verdict for the plaintiff and answered several special interrogatories, one of which was: “Was the defendant guilty of contributory negligence?” To such interrogatory an affirmative answer was given. Another interrogatory elicited the answer that the collision did not result proximately from the negligence of both plaintiff and defendant.

The defendant filed a motion for judgment on the answer to the first interrogatory, claiming that contributory negligence imports negligence by the plaintiff, and also filed a motion to set aside the general verdict and for a new trial.

The court overruled the motion for judgment and granted the motion for a new trial “for the reason that the court was in error in submitting at the request of plaintiff special charge No. 3A to the jury.”

This appeal is by the defendant from the order overruling his motion for judgment.

There is no bill of exceptions and, of course, we are not advised as to the content of special charge No. 3A, for error in giving which the new trial was awarded. For this reason, this court cannot say that the charge was such as to affect the validity of the answer to the interrogatory as to whether the defendant was guilty of contributory negligence. Furthermore, the answer to the other interrogatory, that the collision did not occur by reason of the negligence of both, is contradictory of and neutralizes the answer to the first interrogatory and would prevent the court from basing a judgment upon it.

Counsel have cited cases where special verdicts have been returned. Those cases are inapplicable. A general verdict was returned in this case. However, the same result would follow. In Globe Indemnity Co. v. Schmitt, 76 Ohio App., 35, 63 N. E. (2d), 169, this court pointed out that even where a special verdict alone is returned and a motion for a new trial is filed, the court has no jurisdiction to enter a judgment on such special verdict unless and until the court has overruled the motion for a new trial, and where the motion for new trial was granted, the power to enter .judgment did not exist.

On this record, prejudicial error does not affirmatively appear.

For these reasons, the order of the trial court, overruling the motion for judgment, is affirmed.

Order affirmed.

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


author: Ross, J.

text:
    In re Estate of Hughes : Fitton, Exr., Appellant, v. Beeler et al., Appellees, et al.

      (No. 909
    Decided May 4, 1946.)

      Messrs. Williams, Fitton & Pierce, for appellant.

      Messrs. Sohngen, Parrish & Beeler and Messrs. Harmon, Colston, Goldsmith & Hoadly, for appellees.
   Ross, J.

This originally was an appeal on questions of law and fact from a decree of the Court of Common Pleas of Butler county, Ohio, rendered in a statutory proceeding, constituting an appeal on questions of law and fact to that court from the Probate Court of Butler county. A question being’ raised as to whether this court, upon a second appeal, could retry the facts, and all counsel consenting, the appeal was reduced to an appeal on questions of law and time was given to file a bill of exceptions, assignments of error and briefs in this court.

Prom the record it appears that Mary Hughes Beeler, one of the heirs of the decedent, for whom appellees have continuously been counsel, requested the executor of the estate to institute an action for the construction of the will of such, decedent and that ibis request was granted by the executor and an action instituted to construe such will.

Appellees represented Mary Hughes Beeler and other heirs throughout the proceedings to construe the will; such heirs having been made defendants in the action.

Answers were filed by such heirs, whose counsel are the appellees in the instant proceeding, in which such heirs joined in the prayer of the executor for a construction of the will.

The will in question provided in substance for the creation of a trust estate which was to be used for the erection and equipment of a hospital in Butler county for the treatment of contagious and infectious diseases contracted by citizens of such county. When the extent of the estate so to be placed in trust was finally and fully estimated, it was suggested that, even allowing for the full performance of the wishes of the testator as to such erection and equipment, there would be a considerable surplus remaining in such trust estate. Two divergent constructions of the will as to the disposition of such surplus were advanced by the executor and the heirs.

It was the contention of the executor that the trust was valid, and reading the whole will it was evident that the testator desired all of such trust estate to be used in promoting the hospital project, that even though it was apparent that the testator thought such trust estate would be entirely expended in erecting and equipping such hospital, it was his manifest intention that any surplus, after performing such direction, should still be used for the further carrying on of the project and that, therefore, such surplus, if any, should be used for replacement of equipment, repairs, and even for current maintenance.

The contention of the heirs was: (1) That the entire trust was invalid; (2) That if the trust was not invalid in toto, then as to any such surplus existing after the erection and equipment of the hospital, the estate was intestate and should be distributed to such heirs.

The construction case was fully considered by successive courts in trial' and upon appeal, resulting in a final determination sustaining the construction advanced by the executor as to any surplus. He and his counsel were allowed a very substantial sum covering costs and attorneys’ fees.

An application was made in the Probate Court by the attorneys for the heirs for fees. The Probate Court refused such request, and appeal on questions of law and fact was taken to the Common Pleas Court of Butler county. That court, after a full hearing of the facts, allowed the attorneys for the heirs $20,000. It is such allowance of fees that the executor now seeks to have set aside by the instant appeal.

Attorneys representing such heirs are not parties to the action to construe the will. See Page on Wills, post. The application- of such attorneys for fees, therefore, cannot be considered as a continuation of such action to construe the will, but, on the contrary, constitutes a separate ancillary proceeding in which such attorneys apply to the chancery powers of the Probate Court to grant them equitable relief. The propriety of the application being made by the attorneys instead of by the heirs for necessary expenses including fees for their counsel is passed, and no point will be made as to whether such situation is prejudicial to the claims of these appellees, no objection upon this basis being advanced by appellant executor.

The appeal to the Common Pleas Court from the Probate Court being upon questions of law and fact, resulting in a trial ele novo, the Common Pleas Court became invested thereby with the same chancery powers possessed by the Probate Court and had full power to pass upon any equitable claim for compensation possessed by the heirs.

The right to compensation for appellees is predicated on four grounds. They conclude their brief with this statement:

“In summing up this problem, we believe we have shown the court that all of the various elements required for an allowance of compensation in a will construction action are presented in this case, to wit:

“First: The testator’s will was ambiguous and it was necessary to construe the meaning of the same.

“Second: Despite the trial court’s findings, there was no attack against the will, nor was there any question involving the preservation of assets.

“Third: Services rendered by counsel for the heirs-at-law , were beneficial to the court and to the estate in clearing up the issues created by the eighth item of the subject will, because, in the words of the courts:

“ ‘ * * * the provisions of his will must be made clear to all interested parties before the same can be made effective, * * * for the result of the proceeding benefits the estate to the extent of determining questionable matters in the will, and thus permitting an expeditious settlement of the estate.’

“Fourth: The law of the state of Ohio and that of other states, generally, places in the jurisdiction of the courts the fight to make an allowance of compensation in a will construction action, where the same is necessary, where the questions are genuine and bona fide, and where the questions are not litigated 'captiously, capriciously, and without reason.”

The opinions of the judges in the Probate and Common Pleas Courts in the instant proceeding are found attached to the respective briefs of the appellants and appellees.

In these opinions, as well as in the briefs of counsel, will be found cited many cases from Ohio and other states as well as citations to established text books. It is difficult in these cases to harmonize the conclusions reached unless the varying facts involved are taken into consideration. It would extend this opinion unduly to analyze in detail the particular facts involved in these citations. However, some comment on these various authorities, as related to the adverse contentions of the parties to this appeal is required.

A general statement of the rules applicable to the instant question is found in 4 Page on Wills (Lifetime Edition), 607 et seq., Ch. 49, Section 1613 et seq. Here it is stated:

“In the absence of statute, apportionment of costs and attorneys ’ fees in a suit to construe a will is within the discretion of the court, since the proceeding is one of an equitable nature. * * *

“In some jurisdictions it is held that in a suit for construction, the defeated claimant can not have his costs or attorney’s fees out of the estate. Costs may be awarded against the unsuccessful party. In other jurisdictions, it is held that if the ambiguity of the will caused the difficulty in construction, the executor and all the parties in interest, the defeated party, as well as the successful party, are entitled to costs out of the estate, but the rule is said not to apply if the suit is not brought for construction merely, but in reality to attack the will and to enable the litigant to obtain something as an heir. * * *

“In some jurisdictions parties to construction suits other than executors, trustees and the like, may not be compensated for attorneys’ fees unless the executor refuses to act.

“If there is a genuine and bona fide controversy, which involves the estate in general, and the services of the attorneys are of value to the estate in presenting the problem of construction to the court, attorneys’ fees for all' the parties are allowed out of the estate in most jurisdictions, including the attorneys’ fees of tlie defeated party, but this rule does not apply to fees incurred by unsuccessful parties attacking the will and asserting rights cpntrary to it, rather than seeking construction. Allowance of costs and attorney fees to the defeated party can be justified on the theory that the difficulty in construction was created by the testator, not by the defeated party; and that the cost of obtaining a judicial construction of such a will should be borne by testator’s estate, and it is immaterial whether or not a trust is involved. Allowance, if made, should be to the party and not to the attorney; except in the case of a. guardian ad litem appointed for a minor. * * *

“If the services of the attorneys are rendered solely for the benefit of certain parties and are not for the benefit of the estate, attorneys’ fees can not be awarded out of the estate, even though the estate is incidentally benefited by having adverse claims decided. If the suit is unnecessary, as where the will is unambiguous and the party who asks for attorneys’ fees has no interest in the fund, or if he has no interest which entitles him to a construction attorneys’ fees will not be allowed.”

In Moskowitz v. Federman, 72 Ohio App., 149, 51 N. E. (2d), 48, an action for a declaratory judgment was instituted by an heir and legatee of a testator seeking construction of a will. Two devisees as well as the trustees named in the will were made parties defendant. When the case was called for trial, it was found the plaintiff heir and the trustees were in accord as to the construction of the will, and the devisees then requested and were permitted to file pleadings challenging the validity of the trust created by the will. The validity of the trust was sustained. A clause in the will provided that any next of kin or beneficiary named in the will who “shall begin or maintain any proceeding to challenge or deny any of the provisions of this will” shall thereby forfeit any legacy given him under the will. In the opinion at page 164, it is stated: “A proceeding for a declaratory judgment must be based upon an actual controversy. The proceeding-does not lie to obtain á judgment which is merely advisory or which merely answers a moot or abstract question. A court will not take jurisdiction to render a declaratory judgment where there is no question of difference between the parties and both sides are asking- for the same judgment, and the proceeding- in reality is one to obtain the advice or opinion of the court and no more. 50 A. L. R., 45, Anno. IV c.”

And, again, on the same page:

“The court thereupon permitted the present appellants to controvert the claims of validity, and, after argument, determined, upon 'the issues thus created, the validity of the item of the will in dispute, and at the same time barred the appellants from participation, for the reason that they violated the provisions of Item Y.

‘ The action of the appellants was the only way possible to secure a construction of the will, which was the very thing desired by everyone in the litigation. A request for construction in which issues are joined and argument had should not be interpreted as a violation of the conditions against challenge or contest under these circumstances.”

It would seem that that case was intended only to hold that such an adverse position as that taken by the defendant legatees did not bring them within the disinheriting clause, and the opinion goes no further than tll&t

In Neff v. Neff, 2 Disn., 468, 13 Dec. Rep., 287, in the Superior Court of Cincinnati, the limits of the application are found in the following quotations from the opinion:

“After full argument, I have held that some of the grounds assumed by.the defendant, as well as some assumed by the executors, are alike tenable.”

“It is clear then, upon authority, whenever the fund to be divided is complicated with a trust, to be performed by the executors, and there is a doubt as to their powers, or the mode in which they are to be executed, and it becomes necessary to obtain the opinion of the court, in relation to the equities involved, all the costs accruing in consequence of the application, whether of the trustees or the devisees, are a charge upon the common estate.

“The principle must be nevertheless, so far restricted,- as to forbid its application, when the devisees litigate questions captiously, capriciously, and without reason; but when the points in controversy are presented by all the parties, and the court derives light from the counsel of both, and at last decree upon a principle admitted by both, differing only in the mode of its application, and all interested are to be equally benefited, we have no hesitation in holding the estate responsible for all the expenses incurred.”

In Schmalstig v. Conner, 46 F. Supp., 531, the question involved arose in determining a proper administration expense deductible under the Federal Income Tax Law.- The holding is limited to a finding that the Probate Court has authority to allow attorneys’ fees in an action to construe a will. It is to be noted that the services of such attorneys resulted in a construction of the will rendering it partially invalid.

In Schreiner, Exrx., v. Cincinnati Altenheim, 63 Ohio App., 42, 25 N. E. (2d), 296, in a decision by this court, an award of compensation to attorneys, was reversed and set aside. The holding of this court is set out in the third paragraph of the syllabus:

“Where the interests of the beneficiaries of the trust are such that any allowance of compensation out of the trust fund to an attorney for one of the beneficiaries would have the effect of requiring the only other beneficiary affected by such allowance to pay for services that produced a result detrimental to her pecuniary interests, no allowance payable out of the fund should be awarded. Under such circumstances, such services are beneficial only to the litigant by whom the attorney was employed and whatever right he has to compensation is against such client thus benefited.”

Fifth-Third Union Trust Co., Trustee, v. Davis, 55 Ohio App., 377, 10 N. E. (2d), 4, is authority for the propositions set out in the third and fourth paragraphs of the syllabus:

“3. In an action by the testamentary trustee for the Construction of such will, the court has- authority to award compensation for services rendered by counsel for defendants, the ultimate beneficiaries, to be paid out of the trust estate; and a reviewing court will not reverse or modify the award, in the absence of exceptions thereto, no error in the- exercise of authority being presumed.

“4. An award of such fees is not an abuse of discretion when the court apportions it among the attorneys whose services have assisted in the correct construction of the will, and in the preservation of the.corpus of the trust estate for the ultimate beneficiaries, living and unborn.”

The appellees cite several Illinois cases. These are all considered in the opinion in Cravens v. Haas, 318 Ill. App., 447, 48 N. E. (2d), 611 (also cited by appellees). A quotation from that case clearly states the Illinois law upon this subject:

“Appellants, however, strenuously insist that since this suit was filed by plaintiffs solely for the purpose of attempting to enforce a supposed interest of their own, they are not entitled to attorneys’ fees or expenses. While the law is well settled in this State that when the construction of a will is not necessary, those who file a suit for construction to enforce a supposed interest of their own are not entitled to attorneys’ fees or expenses out of the estate if they are ultimately held not to have any interest (Bartlett v. Mutual Ben. Life Ins. Co., 358 Ill., 452; Brumsey v. Brumsey, 351 Ill., 414; Village of Hinsdale v. Chicago City Missionary Society, 375 Ill., 220; Waxenberg v. Brown, 299 Ill. App., 225; Moody Bible Institute of Chicago v. Pettibone, 289 Ill. App., 69), the law is also well settled that when there is sufficient ambiguity in regard to the testator’s intention as expressed in his will as to make it necessary to go into a court of chancery to get a construction of the will in order to determine which of two or more adverse claims to the same property is valid, the costs of the litigation should be borne by the fund or property in question even though the will is ultimately construed' adversely to the contention of plaintiffs. In Guerin v. Guerin, 270 Ill., 239, the court said at pages 250, 251:

“ ‘It is the settled law of this State that where a will is so ambiguous or uncertain as to require construction, the costs and expenses of the proceeding to construe, including reasonable fees for complainant’s solicitors, should be taxed against and paid by the estate.

“ ‘The case of Ingraham v. Ingraham, 169 Ill., 432, was one brought to construe a wili, and though the court below construed the will adversely to the contention of the complainant, an allowance was made as fees to the solicitor for complainant, and in passing upon that case this court said: “In view of the ruling of this court in Woman’s Union Missionary Society v. Mead, 131 Ill., 338, we do not regard the allowance of the fee as erroneous.” ’ ”

As, at least, one of the heirs for whom appellees have continuously been counsel throughout the proceedings to construe the will, made demand upon the executor to institute such proceeding, it may be considered that the Illinois courts would sustain the position of the appellees as in effect representing an heir who requested construction of a will, which was found to require construction. For all intents and purposes, Illinois may be considered as being in the column favoring appellees’ position.

In Singer v. Taylor, 91 Kan., 190, 137 P., 931, Ann. Cas. 1915C, 713, the second paragraph of the syllabus is: •

“Where there is ambiguity in the provisions of a will and a real controversy as to its construction it is competent for the court to allow reasonable attorneys’ fees out of the estate to the defeated as well as the successful party.”

And, at page 192 of the opinion, it is stated:

“Here the estate was large, it being estimated at a quarter of a million dollars, and the daughter, who was defeated, was only given outright $500 and to that was added the income to be derived from $10,000. All the remainder of the estate was given to her brother. We can not say that the application to the court to construe the will, in which both parties joined, was not made in good faith, and therefore it is a case in which the court may justly exercise its discretion in awarding costs and also in the allowance of attorneys’ fees out of the estate.”

New York decisions are influenced and controlled by the New York statute, quoted in In re Billings’ Estate, 141 N. Y. Misc., 84, 252 N. Y. Supp., 576:

“When the decree is made in a proceeding to construe a will, the surrogate may, in his discretion, allow to an executor, trustee, guardian, or any party to said proceeding, such sum as the surrogate deems reasonable for his counsel fees and other expenses necessarily incurred in such a proceeding, and the decree may direct payment to the attorney for whose services such allowance is made.”

In Noe, Admr., v. Miller’s Executors, 31 N. J. Eq., 234, it is stated at page 238 of the opinion:

“Shall the complainant pay costs, or be allowed costs out of the fund in dispute? Where the true construction of a will is involved in ‘doubt, so that two or more persons may fairly make adverse claims to the same fund, either may resort to a court of equity for an interpretation, and, though his claim may be pronounced invalid, he may still be entitled to costs and a reasonable counsel fee out of the fund. The litigation, in such a case, is indispensable to the proper administration of the fund, and it should, therefore, bear the costs of the litigation as part of the expenses incident to its administration. Attorney General v. Moore’s Exrs.,A C. E. Gr., 503. A suit in this case was necessary and proper, indeed, unavoidable; all persons having any interest in the fund, have been made parties, and have been afforded an opportunity of being fully heard. A decision of the complainant’s claim practically settles the rights of all parties and leaves nothing for future dispute. He should, therefore, I think, be allowed his costs and a reasonable counsel fee out of the fund.”

Cases involving fees to guardians ad litem are obviously not helpful. Of such is: American National Bank, Exr., v. Meadors, 162 Tenn., 324, 36 S. W. (2d), 86.

In Trautz v. Lemp, 334 Mo., 1085, 72 S. W. (2d), 104, the first paragraph of the syllabus is:

“Where an instrument creating a trust estate is so ambiguous that two or more persons may fairly make adverse claim to the fund, either may resort to a court of equity for an interpretation and the court may assess costs of the litigation and allow reasonable attorneys’ fees against the estate to both the defeated and successful parties.

“But the rule does not apply when the purpose is not merely to secure a construction of the trust instrument but to obtain something as an heir. In such case the cost and attorneys’ fees should not be allowed even though the litigation incidentally settled the status of the trust estate.” „

And at page 1096 of the opinion, the court says:

“Kathryn H. Trautz bases her appeal on the ground that the allowance made to her for attorneys ’ fees was inadequate, while the executors and trustees claim an allowance in any sum would be against the law under the circumstances.

“We believe the contention of the executors and trustees must be sustained. In the first place, the efforts of her attorneys were mainly directed to declaring the trust void because it violated the rule against perpetuities. As we have seen in paragraph one of this opinion, a trust fund is not liable to attorneys for their fees when their efforts sought to destroy the trust. In the second place, under the will of her father, Mrs. Trautz was left only one thousand dollars which had been paid her. The only interest she could possibly have under these circumstances would be to have the will declared invalid. She could not possibly be interested in the construction of the will, her only interest would be in the destruction of it. She filed the third suit and it was an action for partition. For her to succeed in this action, it would have been necessary for her to destroy the trust estate.

“Construction of Wills, by Thompson, on page 801, the author says:

“ As a rule costs and attorneys’ fees are allowable as in other equitable cases, or cases wherein trustees are parties, but this rule does not apply where the bill is not filed merely for the purpose of obtaining a construction of the will and the direction of the court, but to enable complainant to obtain something as heir, nor should the costs be paid out of the estate %vhere it is determined that the complainant has no interest in any event.’ ”

In Kimball, Admr., v. Bible Society, 65 N. H., 139, 23 A., 83, 84, 85, it is stated in the syllabus:

“In an equity suit, brought by an executor for the construction of a will on which depends the right to property in dispute between a legatee and an heir, the claimant who does not prevail is not entitled to the payment of his taxable costs or counsel fees out of any part of the estate.”

In Mudge v. Mudge, 155 Md., 1, 141 A., 396, it was held the “Orphans’ Court” had only a statutory jurisdiction and could not allow fees to counsel for an heir who failed in securing a. construction for which he contended.

In Tramell v. Tramell, 162 Tenn., 1, 32 S. W. (2d), 1025, at page 24 of the opinion it is stated:

“The suit was.filed to maintain rights asserted in opposition to the will and not under it, necessitating the employment of counsel by the executors and trustees to defend the will and the trust estate created thereunder. Inasmuch, however, as the complainant has been successful in upholding his contention that the testator died intestate as to his personal estate not specifically bequeathed, we think it a proper exercise of discretion to tax all of the costs of the cause against the executors and trustees, as a charge against the estate, and it will be so ordered. ’ ’

In Sandusky v. Sandusky, 265 Mo., 219, 177 S. W., 390, the court refused attorneys’ fees to heirs’ counsel, where the will was held to be unambiguous, and they sought a construction declaring it invalid.

Reference has been made to Trustees v. Greenough, 105 U. S., 527, 26 L. Ed., 1157. That case involved an entirely different question than that here under consideration, being the rights of parties in a trust fund claimed to be misapplied by trustees.

In re Lyons’ Will, 290 N. Y. Supp., 30, 160 N. Y. Misc., 429, is merely authority for the proposition that:

“Attorneys who represented testator’s son on unsuccessful appeal from Surrogate’s decree construing will held not entitled to allowance from testator’s estate in addition to allowance awarded in Surrogate’s original decree.”

In Davis v. Mitchell, 27 Tenn. App., 182, 178 S. W. (2d), 889, 894, the 65th and 66th paragraphs of the syllabus are:

“Fees for services of an attorney not employed by personal representative are allowed out of assets of decedent’s estate only where services have inured to benefit of the estate.

“Where it appeared that services rendered by complainants’ solicitors were designed to bring about a breach of testamentary trust, and not to preserve trust, complainants were not entitled to have reasonable attorneys’ fees paid out of estate, notwithstanding that complainants were impleaded in cross-bill whereby executrix and trustee sought a construction of the will. ’ ’

Also, in the opinion, it is stated at page 247:

“Fees for the services of an attorney not employed by the personal representative are sometimes allowed out of the assets but only where the services have inured to the benefit of the estate. The estate-here is a trust for a specific purpose. In view of the conclusion we have reached as to the construction of the will, the services rendered by the plaintiffs in error must be regarded as designed and calculated to bring about a breach of the trust, not preserve it. There is, we think, rational basis for charging t&e estate, with the payment for services of that kind. While the situation was somewhat different in the case of Tramell v. Tramell, supra, the rationale of the conclusion denying a similar claim is against the allowance in this case.”

In St. Louis Union Trust Co. v. Kaltenbach, 353 Mo., 1114, paragraphs 14, 15 and 16 of the headnotes as reported in 186 S. W. (2d), 578, are:

‘ ‘ Generally, where testator has expressed himself so ambiguously as to make it advisable to institute an action to obtain a construction of will, it is proper to order payment out of estate of reasonable fees of attorney of party instituting the action, irrespective of the outcome of the action, but such rule is not followed where purpose of action is to destroy the estate.

“In action by successor testamentary trustee to construe will and for directions as to distribution of trust estate, allowance to the trustee for attorney’s fees was proper, but allowances of attorney’s fees to defendants each of whom was contending for a construction under which he could obtain the whole estate for himself was improper.

“In action to obtain construction of ambiguous will allowance of attorney’s fees to defendants is not authorized except where defendants’ efforts resulted in real benefit to the estate.”

These authorities fairly represent the opinions of courts and text writers upon the problem here presented. A careful examination of the opinions will demonstrate that there is as indicated in the quotations from Page on Wills, supra, no great divergence in the rules to be applied and that the apparent difference in conclusions reached is due to the various situations presented by the facts involved.

What was the real position of the heirs ?

Did such position yi the will-construction case constitute an attach upon the will as distinguished from a bare request for construction thereof?

It was an heir, one of the clients of appellees, who asked for a construction in the first place. Demand was made upon the executor to institute such proceeding and he complied. The heirs, clients of these appellees, through whom the latter only can claim compensation contended, first, that the creation of the trust was invalid. This practically amounted to a contest of the will. Had the heirs succeeded in convincing the courts that they were correct, such conclusion would have resulted in almost an entire intestate .disposition of the estate. The trust created for the benefit of the hospital would have entirely failed and the heirs would have inherited the estate by intestate disposition. Had the heirs been successful in their alternate contention, to a certain extent, the same result would have ensued. A-large surplus would have been subject to intestate distribution to them. That the position of the heirs was adverse and wholly antagonistic to the will and the executor seeking to sustain same is shown in the briefs in the instant case, filed by appellees:

“It was the contention of appellees that the entire trust was invalid, for the legal reasons presented in oral argument and in briefs before the lower court; and it was also the contention that if the entire trust was not invalid, then that such portion of the estate as remained after building and equipping the hospital, would pass to the heirs-at-law as intestate property by way of a resulting trust. ’ ’

“Does counsel for the executor contend, in the face of the finding by the Probate Court, that Mr. Hughes’ will was not ambiguous and did not need to be interpreted, or that an adverse claim did not fairly exist?”

After a construction was given by the trial court, the heirs appealed. They would have had no standing in any appellate court unless they could have shown they were prejudiced by a construction of the will adverse to their interests. The executor occupying a neutral position would have had to rest content with a construction adverse to his contentions, certainly as far as the surplus was concerned. First Natl. Bank v. Rawson, 54 Ohio App., 285, 7 N. E. (2d), 6.

The will was constantly sustained by successive courts and the heirs as constantly appealed.

The size of the fee paid to the executor and his counsel was certainly affected by the services required of them made necessary by such. successive appeals. Other costs were directly due to such continued assertion of the interests of these heirs.

It seems clear, therefore, that the suit was “not brought for construction merely, but -in reality to attack the will and to enable” these litigants to obtain the estate or a large portion thereof as heirs.

Again, -referring to Page on Wills, notice the statement in the text on page 609, quoted supra, “but this rule does not apply to fees incurred by unsuccessful parties attacking the will and asserting rights contrary to it, rather than seeking construction.” Where such is the case the claim of “services of value to the estate” fails. Other authorities herein noted sustain the same rule. Such services may be of value to a court in reaching a conclusion upon adverse claims, but not by the farthest stretch of imagination could the services of these appellees in behalf of their clients, the heirs, be considered of any value to this estate. Any services rendered by counsel in their arguments and briefs submitted to the court may.not be considered as justifying a charge upon the estate, merely because such services aided the court in the performance of his duties, for which he is at least presumed to receive full compensation elsewhere. If such were not the case, an amicus curiae would have as just.a charge upon an estate as any attorney for a party.

There is a vast distinction, therefore, between services to the court and services to an estate.

Authorities, hereinbefore noted, justify the conclusion that, “even though the estate is incidentally benefited by having adverse claims decided,” this feature alone does not warrant the awarding of fees to those who are manifestly advancing the personal, selfish interest of those who can participate in an estate only by a construction rendering provisions of the will invalid.

Referring to the claims of these appellees, as hereinbefore set out: (1) The court did determine that the will required construction; (2) the position, attitude, and conduct of the heirs constituted an attack upon the will, and went 'far beyond a mere sincere request for construction thereof; (3) the services rendered were in behalf of the clients of these appellees, and, although of possible though doubtful service to the court, were obviously not only not a service to the estate, but resulted in a substantial*depletion thereof; (4) the Probate Court had jurisdiction in the exercise of its equity powers to award compensation in a proper case, but not where, under guise of requesting a construction of a will, heirs seek to obtain a declaration of its invalidity and an intestate distribution to them of the entire estate or a substantial part thereof.

It is to be noted in connection with a consideration of the authorities cited herein, that it was finally determined in the action to construe the will that the heirs had no interest present or future in the estate of the testator.. As was noted, this has a decided bearing upon their status and the right of their counsel to compensation out of the estate.

It may also be noted that the question of surplus after erecting and equipping the hospital is a matter still of estimate only. It would seem that a demand might more properly have been made for construction of the will after such surplus had been definitely ascertained. This too indicates that the real purpose of the heirs in demanding construction at once was to secure the entire destruction of the trust estate, rather than a mere direction as to the surplus.

Every court is reluctant to deny attorneys the compensation which they sincerely believe due them. However, when the claim of' such attorneys is predicated upon principles of equity, their right to such compensation must be shown to rest clearly upon equitable principles.

The Probate Court concluded that the equities were not with these appellees, and for the reasons given, this court agrees with the Probate Court, thus requiring, the facts not being in dispute, that the judgment of the Court of Common ideas of Butler county be reversed, and judgment be here entered for the appellant.

Judgment reversed.

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


author: By the Court.

text:
    Ozias, Appellant, v. Renner et al., Appellees.
    (No. 116
    Decided June 23, 1945.)

      Messrs. Tanner é Tanner, for appellant.

      Mr. Walter H. Earley, for appellees.
   By the Court.

This cause is submitted on motion of C. B. Renner, Harry E. Moots and Alma Moots, defendants, appellees herein, for an order dismissing the appeal for the reason and upon the ground that the judgment appealed from is not appealable on questions of law and fact and for the further reason that the appeal bond was not conditioned in accordance with the order of the Probate Court and was not approved by such court. The appeal is by the plaintiff, Clifford W. Ozias, a devisee, is designated as one on questions of law and fact and is from an order of the Probate Court of Preble equnty, Ohio, approving the sale of certain real estate. The plaintiff filed an application to set aside the sale to the defendants for the reason that the sale price was wholly inadequate. That application was denied and the sale of the property to the defendants was approved by the court. The order appealed from is not one rendered upon* the .issues raised by the pleadings. It is merely an order confirming a sale of real estate.

Decisive of this question is the case of Eaton v. Robison, 47 Ohio App., 436, 192 N. E., 132, wherein the syllabus is as follows:

“1. The appealability of a case is determined by the pleadings, and the judgment appealed from must be one rendered upon the issues raised by the pleadings.

“2. An order confirming a receiver’s sale and distributing the proceeds thereof in a chancery case is not such a judgment as will support an appeal.”

The first branch of the motion is well taken, and the appeal on questions of law and fact will not be allowed. However, the case will be heard as an appeal on questions of law.

Section 11564, General Code, provides that whenever an appeal on questions of law and fact cannot be heard and no bill of exceptions has been filed in the cause a time will be fixed, not to exceed 30 days, for the preparation and settling of the bill of exceptions. In accordance with that section, we will grant a period of 30 days within which the plaintiff may prepare and settle a bill of exceptions. If and when a bill of exceptions is filed, the usual time will be granted to the parties for filing briefs.

As to the second branch of the motion which questions the sufficiency of the bond, since the appeal is allowable only on questions of law, any question as to the deficiency in the bond is immaterial.

This court held, in the case of Van Almsick v. Van Almsick, 31 Ohio Law Abs., 396, as follows:

“Under Section 12223-22, G. C., a motion to dismiss an appeal for failure to file a bond will be denied and the appeal allowed to stand for hearing on questions of law.”

This branch of the motion is accordingly overruled.

Judgment accordingly.

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


text:
    Ozias, Appellant, v. Renner et al., Appellees.
    (No. 116
    Decided September 26, 1945.)

      Messrs. Tanner & Tanner, for appellant.

      Mr. Walter R. Earley, for appellees.
   By the Court.

This cause is submitted on motion of plaintiff, Clifford W. Ozias,' appellant herein, to dismiss as parties-defendant herein C. B. Renner, Harry Moots and Alma Moots, purchasers of the several tracts of land described in the petition, for the following reasons:

(1) They were made defendants by the Probate Court subsequent to the sale of the premises and are not persons required as defendants under Section 10510-15, General Code.

(2) They are not necessary parties to a complete determination or settlement of the questions involved in this case.

(3) They have no controversy adverse to the plaintiff.

The record discloses that on February 20, 1945, the plaintiff filed an application to set aside the sale made under a former order of the Probate Court of Preble county, Ohio; and that on the same date the purchasers filed their motion asking to be made defendants for the purpose of opposing the application, which latter motion was allowed and the purchasers were made defendants. The application to set aside the sale to the defendants was on the ground that the price was wholly inadequate. That application was denied and the sale of the property to these defendants was approved and confirmed by the court.

Section 10510-15, G-eneral Code, provides as follows:

“In such action by an executor or administrator the following persons shall be made parties defendant: # * *

“6. All other persons having an interest in. such real estate.”

The record discloses that it was subsequent to the sale and prior to the confirmation of the sale by the Probate Court that these purchasers were made parties-defendant to the action upon their motion. At this stage of the procedure the defendants were not parties in interest, but, after. the sale was approved and confirmed by the court, their interest in the real estate vested and they became necessary parties and are, therefore, proper parties to this appeal.

It was held in the case of Ackerman, Recr., v. Cornell, 14 C. C. (N. S.); 525, 23 C. D., 102, that “a purchaser at a sheriff’s sale, under a decree in foreclosr ure, is sufficiently a party to the action in which the sale is made to prosecute error to the Circuit Court to reverse the judgment of the Court of Common Pleas, upon a motion sustained by said court in setting aside the sale of the real estate made by the sheriff.”

Also, in Beckman, Trustee, v. Emery-Thompson Machinery & Supply Co., 9 Ohio App., 168, it was held that a purchaser at a sheriff’s sale can prosecute'error to reverse a judgment sustaining the motion to set aside such sale.

In the case of Bates v. State, ex rel. Fulton, Supt. of Banks, 130 Ohio St., 133, 198 N. E., 34, the court held that a purchaser at a judicial sale becomes a party to such proceeding for the purpose of protecting himself and correcting mistakes as to matters connected with the sale, and that he may not subsequently resort to a collateral attack upon the entry of confirmation relating thereto.

It is our conclusion that these defendants are proper jparties in this action, and the motion is accordingly overruled.

Motion overruled.

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


author: Miller, J.

text:
    Ozias, Appellant, v. Renner et al., Appellees.
    (No. 116
    Decided November 30, 1945.)

      Messrs. Tanner S Tanner, for appellant.

      Mr. Walter H. Earley, for appellees.
   Miller, J.

This is an appeal on questions of law, and the only question raised for our consideration is whether a judicial sale legally made, should be set aside because of the claimed inadequate sale price.

The record discloses that the plaintiff, appellant herein, commenced an action for the sale of real estate, under Section 10510-5, General Code. The property was not being sold to pay debts of the estate but was being sold purely for the convenience of the beneficiaries. There is no claim made of any irregularity in the proceedings. The property involved was appraised at $15,100 and the sale price complained of was $16,400, such amount being $1,300 in excess of the appraised value.

The plaintiff contends that be has a bona fide offer of $700 more for the property and offers to post bond to guarantee the sale for this larger price. This represents an increase in the sale price of approximately four and one-half per cent.

Section 10510-41, G-eneral Code, appears to make confirmation mandatory if the sale was legally made, yet it has been held discretionary with the court to confirm or to refuse to confirm a sale. We find in 24 Ohio Jurisprudence, 63, Section 83, the following:

“The question whether or not a sale should be confirmed rests in the sound discretion of the trial court, and this is true whether on motion to confirm or motion to set aside the sale. It has been said that it is a wise public policy which vests such discretion in the trial court. And if such discretion is subject to review, the order of the lower court can be reversed only when the record discloses that the trial court has abused its discretion. An abuse of such discretion is not shown by the mere fact that one or more of the judges of the Court of Appeals would have exercised the discretion differently if sitting as a trial court.” See, also, Lake Shore Saw Mill & Lumber Co. v. Cleveland Realization Co., 11 Ohio App., 387.

Mere inadequacy of price unaccompanied by any other reason or cause is not sufficient ground for setting aside a sale which has been regularly made in accordance with law. Tbe rule on this subject, as generally stated, is that mere inadequacy of price will not justify refusal to confirm tbe sale unless it is such as to raise conviction that the property'was unnecessarily sacrificed. Secor, Trustee, v. Maumee Rolling Mill Co., 1 N P., 100, 1 O. D., 80; 24 Ohio Jurisprudence, 65, Section 87;

In the case of Central National Bank of Cleveland v. Ely, 37 Ohio Law Abs., 18, the court went so far as to say it is the duty of the court to confirm a sale legally made. Counsel for plaintiff make reference to the case of State, ex rel. Bricker, Atty. Genl., v. American Insurance Union, wherein this court set aside the sale reported by the receivers and ordered a resale. Plaintiff is correct in his contention, but it will be noted that this court in that case was acting as a trial court and not as a reviewing court. It was exercising its own discretion.

It is our conclusion that the trial court in the instant case properly exercised its discretion in confirming this sale. Likewise it could properly in the exercise of its discretion have set the sale aside. In passing upon a question of this nature, the court has other factors to consider than the interest of the beneficiaries. Public confidence in judicial sales must be sustained or bidders will not be interested in them. Sound policy dictates that judicial sales should be sustained. as far as they can be consistently with the principles of law. Every inducement should be held forth to encourage purchasers to give the full value for what they buy. Nothing can have a stronger tendency to this effect than to sustain sales notwithstanding trifling irregularities.

The judgment will be affirmed. .

Judgment affirmed.

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


author: Wiseman, J.

text:
    Peltier, Appellant, v. Smith, Appellee.

      (No. 433
    Decided March 19, 1946.)

      Messrs. DeWeese & DeWeese, for appellant.

      Mr. Edward H. Allen, for appellee.
   Wiseman, J.

This is an appeal on questions of law from the judgment of the Municipal Court of Piqua, Ohio, wherein the defendant recovered judgment on his cross-petition in the amount of $300 in an action for damages growing out of an automobile collision. The case was tried without the intervention of a jury.

The plaintiff claims that the judgment of the trial court was against the manifest weight of the evidence and contrary to law.

The collision between the two automobiles occurred at about noon on March 30,1945, at the intersection of College street and Young street in the city of Piqua. It is admitted in the pleadings and conceded that College street is a main thoroughfare and in the business or built-up section of the city. College street runs in a northerly and southerly direction. Young street, being the intersecting street, runs in an easterly and westerly direction. On the east side of College street there was a switch track which was used as part of the street, and on the west side was a hydraulic canal which had been filled and was used as part of the street, making College street a rather wide street at this intersection. East of College street on the north side of Young street was a stop sign to warn drivers of motor vehicles that they were approaching a through highway. The pavement was wet at the time of the collision because of rain. It is conceded that tbe sections of the Uniform Traffic Act apply, as there were no city ordinances in effect at the time. Section 6307-42, General Code, requires an operator of a motor vehicle intending to enter a through highway to yield-the right of way to all other vehicles on such through highway. It provides also that the operator of a motor vehicle shall stop in obedience to a stop sign at an intersection and shall yield the right of way to other vehicles not so obliged to stop.

In Section 6307-2, General Code, a “through highway” is defined to be, “Every highway or portion thereof at the entrance to which vehicular traffic from intersecting highways is required by law to stop before entering or crossing the same.” In the same section “Right of way,” with reference to motor vehicles, is defined as follows: “The right of a vehicle * * * to proceed uninterruptedly in a lawful manner in the direction in which it * * * is moving in preference to another vehicle * * * approaching from a different direction into its * * * path.”

Counsel have described College street as a “main thoroughfare,” which was the term used in the old traffic code. In the new Uniform Traffic Act, College street is properly described as a “through highway.” Under Section 6307-7, General Code, the city of Piqua had a right to designate College street as a “through highway” and we assume that this was done since counsel conceded that College street was a “main thoroughfare” and tried the case on that theory.

The defendant was traveling northwardly on College street, and the plaintiff was traveling westwardly on Young street. The defendant, driving on a through highway, had the right to proceed uninterruptedly in a lawful manner across the intersection and it was the duty of the plaintiff to permit the defendant to proceed across this intersection. In other words, it was the duty of the plaintiff to yield the right of way to the defendant and not to drive into the intersection so as to deprive the defendant of his right to proceed uninterruptedly in a lawful manner in the direction in which he was moving.

The drivers of these two automobiles were presumed to know the law and their rights and obligations under the law. The defendant, driving on the through highway, had a right to assume that the plaintiff, as he approached the through highway from an intersecting street, would obey the law by stopping and yielding the right of way to the defendant. Morris v. Bloomgren, 127 Ohio St., 147, 187 N. E., 2, 89 A. L. R., 831; Warnock v. Youngstown Bag & Burlap Co., 14 Ohio Law Abs., 85.

As in all such cases, there is a conflict of testimony relative to which automobile reached the intersection first, the speed of the two automobiles, the exact place of collision, and the distance which defendant’s automobile was shoved across the street by reason of the impact of the collision. Is there sufficient evidence in this case to justify the trial judge in dismissing the petition of plaintiff and rendering judgment for the defendant on his cross-petition?

In substance, the evidence shows that as the plaintiff approached the intersection he stopped his automobile near the stop sign which was some distance east of College street; that he observed the Leeper automobile coming south on the west side of College street and intending to make a left-hand turn in the intersection. He observed that the Leeper automobile stopped, and believing that it had stopped to give him the right to cross, he shifted his gears and started into the intersection, but before doing so he looked for cars approaching from the south, and seeing no cars approaching, he started into the intersection and as he crossed the switch track he shifted his gears into high, as he believed, according to his testimony, that the Leeper automobile was waiting for him to cross the intersection. There was a row of parked cars along the west side of College street and south of Young street, which obscured the. view of a driver approaching the intersection from the east on Young street. The plaintiff testified that he did not observe the automobile of the defendant until immediately before the collision as it shot out from behind the parked automobiles into the intersection. Relative to this matter, the plaintiff testified as follows:

“Q. How far was he away from yon when you first saw him? A. He came out so quick, I don’t know, I was shifting gears and going across the intersection and Leeper was waiting.

“Q. Did you look down to the south? A. I looked both ways, there wasn’t any cars coming and I was shifting gears and I couldn’t do anything.”

The defendant testified that some distance south from the intersection on College street on the east side of the street, a truck was parked which extended out into the street which caused him to reduce the speed of his automobile to go around the end of the truck as there were pedestrians using the street at that place; that as he approached the intersection he observed the plaintiff’s automobile as it approached the intersection a few feet east of the switch tracks; that he crossed the intersection and after passing the center of the intersection on the right side of the street, the plaintiff’s automobile struck the defendant’s automobile on the right side immediately back of the right front bumper, causing damage; and that as a result of the impact, the defendant’s automobile was knocked across the street and against the Leeper automobile. The distance the defendant’s automobile was knocked as the result of the impact, was variously estimated at from 10 to 30 feet. Nolle, a disinterested witness, who was sitting in -a parked automobile about half a "block up on College street, and who observed the collision, testified that the defendant’s automobile and the Leeper automobile were only ten feet apart at the time of the collision, and that the defendant’s automobile was more than halfway across the intersection at the time the collision occurred.

There was sufficient evidence to justify the judgment of the trial court in finding that the plaintiff was negligent in failing to yield the right of way to the defendant at the intersection. There was evidence from which the court could conclude that the plaintiff accelerated his speed to cross the intersection because Leeper was waiting to make a left turn. Nolle testified: “I knew something was going to happen because Mr. Peltier was going at a rate of speed that it was impossible for him to stop.” There is sufficient evidence to support the conclusion of the trial court that the negligence of 'the plaintiff was the proximate cause of the collision.

The plaintiff contends that the defendant violated Section 6307-40, General Code, by failing to yield the right of way to the plaintiff, as he was on the defendant’s right as they approached the intersection. This section does not apply where the collision occurs at the intersection of a through highway and an intersecting stop street.

However, it is. contended that the defendant also was guilty of negligence in that he operated his automobile at an excessive rate of speed, and that by reason of such excessive speed the defendant lost his preferential right- to proceed at the intersection. The right of the defendant to use the through highway uninterruptedly is an absolute right qualified only by his duty to use it in a lawful manner. Morris v. Bloomgren, supra; Seekatz v. Sparks, 56 Ohio App., 397, 10 N. E. (2d), 1007; Clickenger v. Patterson, 22 Ohio Law Abs., 204 (Judge Bodey, Second Appellate District).

Did the defendant proceed in a lawful manner? The plaintiff testified that the defendant was traveling at an excessive rate of speed. In addition to the testimony of the witnesses, the trial court had the right to take into consideration the physical facts surrounding the collision. Because witnesses differ widely in their judgment as to the speed of automobiles involved in a collision, the physical facts surrounding the collision in many cases are more reliable. In this case the trial court resolved the question of speed in favor of the defendant. The trial judge acted in the province of a jury and was required to weigh all of the evidence in order to determine whether the defendant was proceeding unlawfully and whether he was guilty of any negligence which contributed to the proximate cause- of the collision. On this issue, the trial judge found in favor of the defendant. In view of the evidence in this case and the facts and circumstances surrounding the collision, we cannot say that the trial court erred in holding that the defendant was not guilty of negligence which contributed to the proximate cause of the collision.

It is also contended that the trial judge rendered his decision on his own personal knowledge of the premises where the collision occurred. The trial judge, acting as a jury, had the same right to view the premises as is given to a jury.

This court does not find the judgment of the trial court to be manifestly against the weight of the evidence or contrary to law. The judgment will be affirmed.

Judgment affirmed.

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


author: Hornbeck, P. J.

text:
    Tanner, Appellant, v. Tanner, Appellee.
    (No. 3770
    Decided June 21, 1945.)

      Mr. Frank H. Ward, for appellant.

      Mr. James F. Becker, for appellee.
   Hornbeck, P. J.

TMs is an appeal from orders of the Court of Common Pleas, Division of Domestic Relations.

The essential facts to an appreciation of the question presented are that the plaintiff and her husband, William Tanner, were parties to a divorce case in which she was the plaintiff. A decree of divorce was granted to the plaintiff but the custody of their four children was awarded to the defendant. Later he died and thereafter plaintiff made application, under the original action for divorce, for the custody and control of the minor children. The form and language of that application are not in the transcript of docket and journal entries, but it is recited as having been made in the entry determining the custody of the children. The custodial entry recites that upon the eviden.ce adduced the court finds the plaintiff is not a fit and proper person to have the custody and control of the four minor children, and further that it would be for the best interest of the children to award their custody and control to four persons who are named and who appear on this appeal as appellees and custodians of the children.

Within three days plaintiff, who since the divorce decree has married and whose name is now Retha Jones, by motions sought a new trial and to have the custodial decree set aside. In the motion for new trial plaintiff asserted that she was appearing only for the purpose of raising the question of jurisdiction of the court to make the custodial order and in both motions she asserted that the order was contrary to law.

The motion for new trial was sustained and the cause came on for hearing to the judge of the'Domestic Relations Court. The bill of exceptions made upon that hearing is before us and consists only of statements of counsel and the court’s presentation of authorities and argument. The court advised counsel for the plaintiff that he would hear testimony touching the fitness of the plaintiff to have the custody of her children, but counsel elected to stand upon his claim that the court was without jurisdiction to determine the question of custody against the right of the plaintiff. • The court then overruled both motions and from that action the appeal is prosecuted.

The one question urged in the trial court is made the basis of the appeal, namely, that upon the death of plaintiff’s former husband, William H. Tanner, Jr., the court in which the divorce proceedings were had lost all jurisdiction to make an order which would take from the plaintiff her right to the custody of her children which right arose upon the death of her husband.

Plaintiff, appellant herein, cites and relies upon two sections from 14 Ohio Jurisprudence, Section 138, page 541, and Section 147, page 551, the first of which is:

“The jurisdiction of courts to award the custody and control of minor- children to one of the parents in a divorce or alimony proceeding, being merely incidental thereto and operating only inter partes, terminates upon the death of either of the parents, and the surviving party is thereby relegated to his or her natural rights with respect to the custody of such children.” Citing Weiss v. Fite, 19 Ohio App., 309; In re Guardianship of Gerbig, 11 N. P. (N. S.), 529.

The latter section is:

“A decree awarding.the custody of children in a divorce or alimony proceeding terminates upon the death of either of the parents, and the natural rights of the surviving parent, which have in the meantime been merely held in abeyance, are thereby revived.” Citing the aforementioned cases and also In re Lutkehaus, 22 N. P. (N. S.), 120.

The plaintiff may not be heard to question the jurisdiction of the court which made the order to which she objects, if it had power to accept the jurisdiction, for two reasons — by her application for a custodial award, and by the motion for a new trial she invoked the jurisdiction of the court.

We may concede that the decree awarding the custody of the children to the husband ceased to be effective upon his death and that thereupon the plaintiff, the mother of the children, prima facie had the right to their custody, but the actual custody was in others. Therefore, she, to regain it, was required to take some legal action. She could have instituted proceedings in habeas corpus, which action would logically have been lodged in the Common Pleas Court. The judge of the Court of the Division of Domestic Relations is a judge of the Common Pleas Court and we have held in Miami Conservancy District v. Silvey, 8 Ohio Law Abs., 668, that, although not ordinarily exercised, the court has jurisdiction over and beyond that which is commonly understood- as being included in the term “domestic relations.”

Counsel for plaintiff claims something for the fact that the case had not been certified to the Court of the Division of Domestic Relations. Section 8034-1, General Code, relates to certifications of cases involving the award of the custody of minor children to the Juvenile Court, which court did not elect to act here.

If habeas corpus had been instituted the court probably would have done nothing more than to determine whether the plaintiff was entitled to the writ, but such determination would be made upon the application of the same principles as were controlling upon her application for an order in the original divorce case.

An examination of the authorities cited, we believe, goes no further than to announce the principle respecting the right of a surviving parent to children which we have heretofore indicated. It is announced in the second and third paragraphs of the syllabus of Weiss v. Fite, supra, and in the second, third, fourth and fifth paragraphs of the syllabus of In re Coons, 20 C. C., 47, 11 C. D., 208, and in the syllabus of In re Lutkehaus, supra. The most exhaustive discussion of the subject is found in an annotation to Leclerc v. Leclerc (85 N. H., 121, 155 A., 249), in 74 A. L. R., 1352. Among other citations is found In re Hampshire, 17 Ohio App., 139, which expressly holds that where one of the parties to whom custody of their children had been awarded died, the surviving party had no right to the custody of the children until and unless the custodial order is modified in the court entering the original decree. It is not necessary for us to determine whether that decision or the decision in Weiss v. Fite, supra, which is in conflict with it, is controlling because there is no doubt that the Common Pleas Court had jurisdiction, whether in the original action or by separate proceedings, to act upon the application of the plaintiff to determine whether she was entitled to an award granting to her custody of her children.

We find no authorities which hold that this right is absolute but that the question presented to the court without respect to the form of the proceeding is primarily what is for the best interest of the children. In Ohio under spécific statute, Section 8033, General Code, defines what is to be controlling upon the court in determining what is for the best interest of the children. While this section is set up particularly to control custodial orders during divorce hearings and after divorce decrees, it is persuasive, if not controlling, of the test which the court should apply whenever custody of the children is involved.

As a prerequisite to an order depriving either parent' of the custody of his or her children the court must find that such parent is an improper person to have the care, custody and control of his or her children. This finding and determination the trial court made and upon the record we must assume that there was sufficient support in the evidence before the court to support that finding. No authority is cited and we find none upon independent investigation which would hold that the court erred in refusing to award the custody .of the children to the plaintiff.

Judgment affirmed.

Geiger and Miller, JJ., concur.