text:
    City of Middletown, Appellee, v. Baker, Appellant.
    (No. 861
    Decided June 24, 1943.)

      Mr. Fred J. Schatzmann, for appellee.

      Mr. Victor F. Schmidt, for appellant.
   Ross, P. J.

This is an appeal on questions of law from a judgment of conviction in the Municipal Court of the city of Middletown, Butler county, Ohio.

The defendant was charged with the violation of certain ordinances of the city of Middletown, the pertinent parts of which are as follows:

“Section 1. The terms hawkers, peddlers, and hucksters shall be considered synonymous when used in this ordinance and shall be deemed to designate a person engaged in the business of making retail sales of provisions, goods, wares or merchandise of any description, upon the streets, alleys or other public places in the city of Middletown, whether by personal solidtations or by supplying a purchaser with the same without solicitation. A hawker, peddler or huckster shall be deemed to be such within the meaning of this ordinance when he has no established place of business and carries his goods with him for the purpose of selling the same.

“Section 2. It shall be unlawful for any person, as a hawker, peddler or huckster, to sell or offer to sell, whether through himself or others, upon any of the streets, alleys or other public places within the city of Middletown, any fruits, vegetables, meat, poultry, fish, ice, coal, provisions, goods, wares or merchandise of any description until he first shall have obtained from the clerk of the city commission a license so to do; provided however, that this ordinance shall not apply to, or require the owner of any product of his own raising, or the manufacturer of any article manufactured by him, to obtain a license to vend and sell in any way, by himself or his agent, any such article or product.

“Section 1. That section 5 of Ordinance No. 1589, entitled, 'To regulate and license hawkers, peddlers and hucksters and to repeal said Ordinance named therein’ be amended to read as follows:

“(Section 5.) Every hawker, peddler or huckster who carries on the business prescribed in Sections 1 and 2 hereof shall pay a license fee of one dollar ($1); provided however, that no fee shall be required of an applicant for a license who already holds a license pursuant to the provisions of Section 6351 of the General Code of the state of Ohio.

“Section 13. Any person violating any of the provisions of this ordinance or making a false statement in any of the applications herein provided for, or selling by false weight or false measure or permitting any license or badge issued to him or her to be used in a maimer or by a person not authorized by this ordinance shall, upon conviction thereof, be fined not less than five dollars ($5) nor more than fifty dollars ($50).”

The evidence shows that the defendant is an avowed-member of a sect known as “Jehovah’s Witnesses” and claims to be a “representative and minister of Jehovah God and operates under authority of the Watchtower Bible and Tract Society” which, he asserts, is a charitable corporation organized under the laws of the state of Pennsylvania. He also asserts that “the sole purpose of the corporation is to preach the gospel of God’s Kingdom by printing and distributing literature containing printed sermons on bible subjects relating to present day world events.”

On the 10th of February, 1943, the defendant stationed himself on the sidewalk at the corner of two streets in the city of Middletown and there offered for sale a certain magazine, of the same character .as the literature just mentioned. He admits that in some cases the literature was sold for a price exceeding that at which it was purchased. Hpon being accosted and questioned by a police officer of the city of Middletown, it developed that he was selling the magazines without having applied for or been issued a permit as provided for in the ordinance quoted.

The defendant was arrested, tried, convicted of a violation of the ordinance and sentenced to pay a fine, from which judgment he appeals on questions of law to this court.

The defendant claims he was a duly ordained minister “preaching the gospel as contained in the Bible.” He claims that the ordinances by the language used in them do not specifically make the acts proved against the defendant an offense at law, and that he has therefore committed no criminal act which can furnish a predicate for the prosecution and sentence herein involved.

He further claims that, although the ordinance is constitutional, if so applied to the acts of the defendant, it would cause an invasion of his rights guaranteed under the Constitution of the state of Ohio and of the United States, in that it would restrict his rights to freedom of the press, freedom of speech, and freedom of religion, all of which are in a “preferred position.”

The city claims the ordinance is broad enough in its terms to cover the acts of defendant and that, the fee required by the ordinance being merely nominal, to wit, one dollar per year, imposed merely as a regulatory measure, without discrimination, no discretion being left in the authority issuing the permit, and the size of the fee being fixed and calculated in an amount not larger than is necessary to defray expenses directly incident to and connected with its issuance and the protection of those on the streets and at home against the abuse of solicitors, it does not violate either the state or federal Constitutions in its provisions or in its application to the acts of the defendant.

It is therefore first necessary to determine whether the affidavit upon which the prosecution is based contains a charge of an offense included within the provisions of the ordinances in question. The affidavit in substance sets forth the facts hereinbefore stated:

‘£ One Carey William Baker unlawfully did then and there sell and/or offer for sale upon the public streets of said city, to wit, Central avenue, certain, goods, wares and/or merchandise, to wit, magazines, without first having obtained from the clerk of the city commission a license so to do.”

It will be noted that the ordinances are concerned with “hawkers, peddlers, and hucksters.” These terms are stated in the ordinances to be synonymous. Such terms are not synoymous, each having a definite connotation, although each involves a common element, that of sale of a commodity other than at a fixed or established place of business. The ordinances, however, proceed to define the meaning of these terms and apply them to any “person engaged in the business of making retail sales of provisions, goods, wares or merchandise of any description.”

In Section 2, the city of Middletown through its council has written a penal law in which the doing of certain acts are designated as a misdemeanor.

The offense so designated is the selling or offering for sale of “fruits, vegetables, meat, poultry, fish, ico, coal, provisions, goods, wares or merchandise of any description,” without a permit so to do.

There is therefore a criminal ordinance, and one that is to be construed strictly in favor of one charged with its violation, or possibly more properly stated, one that is to be interpreted strictly against the law maker and in fav.or of the accused. 37 Ohio Jurisprudence, 744; Hebebrand v. State, 129 Ohio St., 574, 579, 196 N. E., 412.

Section 10214, G-eneral Code, while not directly applicable to penal ordinances of cities does declare the public policy of the state as to prosecutions under penal laws, which affect personal liberty:

“The provisions of part third and all proceedings under it, shall be liberally construed, in order to promote its object, and assist the parties in obtaining justice. The rule of the common law, that statutes in derogation thereof must be strictly construed has no application to such part; but this section shall not be so construed as to require a liberal construction of provisions affecting personal liberty, relating to amercement, or of a penal nature.”

Section 421 in 37 Ohio Jurisprudence, page 747, is as follows:

“It has been declared to be a well-established rule of construction that a statute should, if possible, be so construed as to avoid a penalty. Moreover, penal statutes are not to be extended in their operation by inference, implication, or construction beyond the manifest intention of the legislature. They are not to be extended by implication or construction to persons or things not within their descriptive terms, even though such cases appear to be of equal atrocity, or within the reason and spirit of the statute, or within the mischief intended to be avoided. It has been declared that only those transactions are included within penal statutes which are within both their spirit and letter. There is also authority in Ohio to the effect that all doubts in the interpretation of the penal statutes are to be resolved in favor of the accused.”

Also, Section 449, 37 Ohio Jurisprudence, page 777:

“All words, if they are general and not express or precise, may, in proper cases, be limited, qualified, restricted, or restrained by reference to specific terms with which they are associated, * # *”

See also: Douglas v. State, 16 Ohio App., 95.

Section 450, in 37 Ohio Jurisprudence, 779, is as follows:

“In accordance with what is commonly known as the rule of ejusclem generis, where, in a statute, general words follow a designation of particular subjects or classes of persons, the meaning of the general words will ordinarily be construed as restricted' by the particular designation and as including only things or persons of the same kind, class, or nature as those specifically enumerated, unless there is a clear manifestation of a contrary purpose. An explanation which has been given for the principle is that if the legislature had meant the general words to be applied without restriction it would have used only one compendious term. In accordance with the rule of ejusclem generis, such terms as ‘other,’ ‘other thing,’ ‘others,’ or ‘any other,’ when preceded by a specific enumeration, are. commonly given a restricted meaning, and limited to articles of the same nature as those previously described.”

Applying these rules of construction, which are supported by ample authority, to the problem here presented, the city is put in the position of claiming that books, magazines, newspapers, pamphlets and tracts are included by the words “goods, wares or merchandise of any description.”

If only such words had been used, no difficulty would be encountered in concluding that the ordinance was broad enough in scope to include the instant charge. But, no one can claim any reasonable relation between books, magazines, newspapers, pamphlets, tracts, and “fruits, vegetables, meat, poultry, fish, ice, coal, provisions.”

It is apparent that the ordinance was designed to apply to those last named articles, commonly vended by “hawkers, peddlers, and hucksters.”

It would seem that the publishers of newspapers would be quite startled to find their issues classified with fruit, vegetables, ice and coal. That council could have included any article capable of sale in the ordinance cannot be denied. The conclusion, however, is inescapable that by mention of particular articles of ■sale it intended to limit the scope of this penal section to articles similar in nature to those specifically mentioned, and that pamphlets, books, magazines, newspapers and tracts do not come within the purview of the ordinances.

As to the second contention of the city, it is the ■conclusion of this court that the ordinances come specifically within the purview of laws which are approved both in the majority and dissenting opinions of the recent decisions of the Supreme Court of the United States on this subject. See Martin v. City of Struthers, Ohio, 319 U. S., 141, 87 L. Ed., 861, 63 S Ct. 862, and cases to page 902.

The following is a quotation from the opinion of the court, written by Justice Douglas in the case of Murdock v. Commonwealth of Pennsylvania, 319 U. S.,. 105, 87 L. Ed., 827, 63 S. Ct., 870:

“Jehovah’s Witnesses are not ‘above the law.’ But the present ordinance is not directed to the problems; with which the police power of the state is free to deal, It does not cover, and petitioners are not charged with, breaches of the peace. They are pursuing their solici- . tations peacefully and quietly. Petitioners, moreover, are not charged with or prosecuted for the use of language which is obscene, abusive, or which incites retaliation. Cf. Chaplinsky v. New Hampshire [315 U. S., 568, 86 L. Ed., 1031, 62 S. Ct., 766], supra. Nor do we have here, as we did in Cox v. New Hampshire [312 U. S., 569, 85 L. Ed., 1049, 61 S. Ct., 762, 133 A. L. R., 1396], supra, state regulation of the streets to protect and insure the safety, comfort, or convenience of the public. Furthermore, the present ordinance is not narrowly drawn to safeguard the people of the community in their homes against the evils of solicitations. See Cantwell v. Connecticut, supra, [310 U. S., at 306, 84 L. Ed., 1211, 60 S. Ct., at page 904, 128 A. L. R., 1352]. As we have said, it is not merely a registration ordinance calling for an identification of the solicitors so as to give the authorities some basis for investigating strangers coming into the community. And the fee is not a nominal one, imposed as a regulatory measure and calculated to defray the expense of protecting those on the streets and at home against the abuses of solicitors. See Cox v. New Hampshire, supra, [312 U. S. at pages 576, 577, 61 S. Ct., at pages 765,, 766, 85 L. Ed., 1053, 133 A. L. R., 1396].”

Again, quoting the portion of the opinion to which reference is made by Justice Douglas, on page 873, we find:

“We are concerned, however, in these cases merely with one narrow issue. There is presented for decision no question whatsoever concerning punishment for any alleged unlawful acts during the solicitation. Nor is there involved here any question as to the validity of a registration system for colporteurs and other solicitors. The cases present a single issue— the constitutionality of an ordinance which as construed and applied requires religious colporteurs to pay a license tax as a condition to the pursuit of their activities. ’ ’

If the language used in the instant ordinances had been specific and definite enough to cover the situation here presented, such ordinances could not be said to come'within the scope of those in which the Supreme Court of the United States found vice, but rather within the purview of those enactments directed merely to regulation of public solicitation, providing for a nominal fee commensurate merely with the expense involved in registration and enforcement.

The judgment of the Municipal Court of the city of Middletown, Ohio, is reversed and judgment is here entered for the defendant, who is dismissed.

Judgment reversed.

IIildebrant and Matthews, JJ., concur.


source: Caselaw Access Project

author: Hildebrant, J.

license: Public Domain

text:
    Thrasher, Appellant, v. Kelly et al., Admrs., Appellees.

      (No. 6265
    Decided June 19, 1943.)

      Mr. W. B. Mente, for appellant.

      Messrs. Nichols, Wood, Marx é Ginter, Messrs. Nichols, Speidel & Nichols and Mr. Harry Kasfir, for appellees.
   Hildebrant, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton county, Ohio, sustaining a motion to quash service of summons and dismissing the petition.

Defendant Kelly, a resident of Hamilton county, Ohio, and defendant Speidel, a resident of Clermont county, Ohio, were, by the Probate Court of Clermont county, appointed administrators of the estate of a Clermont county decedent.

On October 13,1942, an action was properly brought, by virtue of Section 11277, General Code, against the defendants as such administrators in Hamilton county and summons issued for both defendants, one to the sheriff of Hamilton county and the other properly by virtue of Section 11282, General Code, to the sheriff of Clermont county. Service was had on Kelly on October 15, 1942, and on Speidel on October 23, 1942.

Meanwhile on October 15, 1942 at 9:30 a. m., Kelly submitted his written resignation to the Probate Court of Clermont county, Ohio, as follows:

“To the Honorable the Judge of the Probate Court of said county:

“The undersigned, co-administrator of the estate of Edith B. Harris, deceased, has been commissioned in the Army of the United States and ordered to report for active duty October 18, 1942, and, desiring to be released from further administration of this trust, hereby tenders to the court his resignation of said trust and prays that the same may be accepted.

“William C. Kelly.”

Whereupon, the court accepted the same, and the following entry was placed upon the journal of the Probate Court prior to 10 a. m., October 15, 1942:

“This day came William C. Kelly, co-administrator of the estate of. Edith B. Harris, deceased, and tenders to the court his resignation as such, which for good cause shown is hereby accepted.

“Russell F. Speidel shall continue the administration of said estate as sole administrator until further order of the court.”

The motion by defendant Speidel to quash the summons was accompanied by the affidavit of the probate judge of Clermont county in re the resignation of Kelly, as above stated.

Plaintiff claims the Court of Common Pleas was without jurisdiction to consider the motion to quash, or, having jurisdiction, the court erred in making the order it did, for the reason that the action was properly pending and the resignation of one administrator was ineffective to defeat it.

32 Ohio Jurisprudence, 498: “Objection to the sufficiency of service may he taken by answer, or, ordinarily, by motion to quash the writ or service.”

32 Ohio Jurisprudence, 504: “Service of summons may be set aside upon motion if the writ or the service is invalid * * *. The basis of a motion to set aside service may appear * * * from affidavits contradictory to the return, or may appear in some other way. In support of a motion to set aside service any fact showing that the service is not correct may be shown.” Goodrich, v. Hamer, 8 Ohio Dec. Rep., 441, 8 Weekly Law Bulletin, 12; Grady v. Gosline & Barbour, 48 Ohio St., 665, 29 N. E., 768.

Plaintiff contends the resignation was improperly accepted, not being accompanied with an account, but the court feels proceedings were regular under Section 10506-56, General Code, requiring the account to be filed by the remaining fiduciary, not by the co-fiduciary resigning.

Plaintiff argues the court cannot regard fractions of a day and cites Sections 11230 and 11231, General Code, in support thereof. However, the operation of those sections is confined to the particular chapter in which they appear by the language there, to wit: Part Third, Title IV, Chapter 2, Limitation of Actions. Coughlin v. Monastery of Holy Cross, 59 Ohio App., 433, 18 N. E. (2d), 496; Feigi v. Lopartkovich, 38 Ohio App., 338, 176 N. E., 670; Bacher v. Shawhan, 41 Ohio St., 271, 272.

The rule that fractions of a day are not generally considered in the legal computation of time is true only in a limited sense and, being a mere legal fiction, will yield to considerations of right and justice.

The following entry appears in the record:

“This matter came on to be heard on the motion of Russell Speidel, administrator of the estate of Edith B. Harris, deceased, one of the defendants herein, to quash the service of summons heretofore made and returned herein and the same was argued by counsel and submitted.

“On consideration of said motion the court finds it well taken and does sustain the same.

“It is therefore ordered, adjudged and decreed that the service of summons on William C. Kelly, administrator, and Russell Speidel, administrator, be and the same is hereby quashed and held for naught, and it is further ordered that this cause be and the same is now dismissed at the costs of the plaintiff, to all of which plaintiff, by her counsel excepts. ’ ’

If the record here disclosed affirmatively that service on Kelly was made subsequent in point of time to the filing and acceptance of his resignation and the entry thereof in the Probate Court records of Clermont county, an exception to the general rule might be applied. But there is nothing in the record including the entry of the court below quashing the service and dismissing the petition to show that fact to this court. The burden of showing that the resignation was completed prior to the service is on the movant. There being nothing in the record to reveal that fact to this court, he has failed to sustain that burden.

The way is open to him in the court below to defend on that and other.grounds.

The judgment is reversed and cause remanded for further proceedings according to law.

Judgment reversed.

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


author: Doyle, J.

text:
    Tucker, Appellant, v. Tucker, Appellee.
    (No. 3645
    Decided February 14, 1944.)

      Messrs. Meade, Weygandt, Held & Mills, for appellant.
    No appearance for appellee.
   Doyle, J.

This was an action for divorce and alimony. Louise Tucker filed the suit in the Court of Common Pleas of Summit county and alleged various statutory grounds. Her husband was in the armed forces of the United States and stationed in California. Service of summons was not had upon him in the manner provided by the statutes. Several months subsequent to the filing of the petition, however, the defendant soldier executed in California and, personally and not by an attorney, filed in the case the following answer: ■

“Now comes the defendant, Charles M. Tucker, and waives the issuance and service of summons in this case, and enters his appearance herein, and admits that the plaintiff, Louise Tucker, has been a resident of the state of Ohio for more than one year last past and has been a bona fide resident of Summit county for more than thirty days next before the filing of the petition; that she and this answering defendant were married on September 14,1928, at Cleveland, Ohio, and that no children have been born as the issue of said marriage.

“Further answering, this defendant denies each and every allegation contained in plaintiff’s petition, other than those herein specifically admitted to be true.

“(Signed) Lt. Charles M. Tucker.

“(Duly verified in Alameda county, California, before a notary public.)”

Subsequent to the filing of the answer, the defendant mailed to the clerk of courts the following letter, which was filed in the case on September 9, 1943:

“Clerk of Courts,

“Common Pleas Court,

“Summit County, Akron, Ohio.

“Dear Sir:

“In regard to the case of Louise Tucker v. Lt. Charles M. Tucker, No. 143069, this is to advise you that I do not wish to take advantage of the protection granted me by the act of Congress known as the soldiers’ and sailors’ relief act. Furthermore, I do not desire that my service with the armed forces be a bar to the hearing of this case, but am willing to have the case go forward at this time.

“I am herewith withdrawing my answer, which was filed July 26,1943, and I am willing to permit the case to go forward as an uncontested matter.

“Very truly yours,

“(Signed) Charles M. Tucker,

“1st Lt., C.A.C., U. S. A.”

The cause came on for hearing in October, 1943, and at its conclusion the court dismissed the plaintiff’s petition. The journal entry of dismissal, from which the instant appeal is prosecuted, in part states:

“ * * * the court finds from the allegations in plaintiff’s petition and the evidence that, if it has jurisdiction in this cause over the defendant, the plaintiff is entitled to the relief as prayed for in her petition and is entitled to a decree of divorce from the defendant * # * ;}

The court continued by journalizing the following reasons for a lack of jurisdiction: 1, that the service of summons by the California sheriff was ineffective; 2, that “the filing of the answer by the defendant was ineffective in giving this court jurisdiction over the defendant”; 3, that “in an action for divorce the defendant cannot waive in writing the issuance and service of summons over the defendant and voluntarily enter his appearance.”

We have no difficulty in determining that the defendant was not served with process in the manner provided by law. This being so, can he waive statutory service and enter his appearance by answer or otherwise, and, in so doing, give the Court of Common Pleas jurisdiction over his person?

The appellant attempts to prove the affirmative of the proposition, and in doing so relies largely on the case of Black v. Black, 110 Ohio St., 392, 144 N. E., 268, and the statement with reference to that case in 3 Ohio Jurisprudence, Appearance, Section 13, in the following language:

“An early supreme court case [Ferrel v. Ferret, 1 O. Dec. Rep., 135] held that appearance in a divorce action does not waive the statutory requirement that a divorce action cannot be heard until sis weeks after the service of process, on the ground that the statute is peremptory. This case has been followed in a common pleas decision [Edwards v. Edwards, 20 N. P. (N.S.), 605] and in a later supreme court decision [Guthrie v. Guthrie, 46 Bull., 285]. But a still later supreme court case [Black v. Black, 110 Ohio St., 392], which does not distinguish the effect of appearance in divorce cases from the effect of appearance in other cases, holds that an appearance without service of process in a divorce case gives the court jurisdiction over the person of the defendant.” (Italics ours.)

The author of the Ohio Jurisprudence article apparently founded his comment on the following language of the Black case (at p. 394):

“Upon the question of jurisdiction it need only be further stated that the defendant, not merely by his pleadings, but by his appearance in open court, waived any question of jurisdiction over his person, as is well settled by a long line of decisions of this court; the latest one, wherein the previous ones are cited, being Klein v. Lust, ante, 197, 143 N. E., 527 * * * .”

Neither Klein v. Lust (110 Ohio St., 197, 143 N. E., 527) nor the cases therein cited were actions for divorce or alimony.

Without further comment on the above quoted language in the controversial case, reference is made to the court’s statement on page 393 of the report:

“Plaintiff had been a resident more than one year when her petition was filed, on June 29, 1920, and service was also had on her amended petition filed January 20,1921.” (Italics ours.)

An investigation of the records of the Supreme Court in this connection reveals that on April 11,1921, the Court of Common Pleas of Franklin county found that the defendant had “been legally summoned by publication both of the filing of the original petition and the amended petition”; that later, on May 17,1921, there was a hearing on a motion of the defendant challenging service, and the court found that neither a summons nor a copy of the amended petition had been mailed to the defendant, and as a result thereof stayed further proceedings until the completion of statutory service. The next entry of the court, dated March 27, 1922, recites that the case was heard on the petition, amended petition, answer and reply, and that, in consideration of the submitted evidence, including the issue as to plaintiff’s residence, the court awarded a divorce and the custody of the child to the plaintiff.

It is fair to presume from the foregoing that, when the Court of Common Pleas of Franklin county finally heard the action on its merits, proper statutory service had been had, and that the Common Pleas Court record before the Supreme Court was the basis for that court’s statement on the question of service quoted above.

In view of this investigation of the original records in the Black case, it is apparent that the case is not authority for the claim of the appellant, nor- for the comments in Ohio Jurisprudence hereinbefore set forth, for the reason that the question of proper service of process was not in issue insofar as the action for divorce was concerned.

We do not believe it necessary to cite the many authorities noted.in the digests which declare that, in actions for divorce, the Ohio statutes governing-service of process are exclusive and mandatory. In this state, a defendant in a divorce action cannot waive jurisdiction of his person by a pleading, by personal appearance, or in any other manner, and thus confer jurisdiction upon the court to hear and determine the cause. Jurisdiction over the person of a defendant to dissolve a marriage relation can be acquired only by strict compliance with the statutes of the state.

Reference is made to the many authorities cited in the careful and complete opinion of Judge Hunsicker of the trial court, which is filed in this case and reported in 27 Ohio Opinions, 185.

The judgment is affirmed.

Judgment affirmed.

Stevens, P. J., and Washburn, J., concur.


author: Carpenter, J.

text:
    The Erie County United Bank, Appellant, v. Berk et al., Appellees.

      (No. 577
    Decided November 1, 1943.)

      Messrs. Young £ Young, for appellant.

      Messrs. Flynn, Frohman, Buckingham, Py £ Kruse, Messrs. Krueger, Rosino £ Moyer and Mr. G. Ray Craig, for appellees.
   Carpenter, J.

The trial court sustained separate general demurrers by the several defendants to the amended petition and, plaintiff not wishing to plead-further, dismissed it. From that order this appeal on questions of law was taken.

The material facts as alleged in the amended petition, which on demurrer must be accepted as true, are briefly as follows: Sometime before April 5, 1941, Ralph 0. Nottke sold an automobile to Martha L. Hartley and she received an original certificate of title from the clerk of courts of Lorain county. On April 5, 1941, Nottke presented to that clerk an application for a certified copy of the certificate of title apparently signed and sworn to by Martha L. Hartley and certified to by defendant Thomas G. Williams as notary public, and on it the clerk issued a certified copy of the certificate in the name of Martha L. Hartley.

Thereafter, on April 5,1941, Nottke presented to the clerk of courts of Erie county that certified copy, on the back of which was the assignment of the title to that automobile to him, apparently signed and sworn to by Martha L. Hartley and certified to by defendant J. A. Berk as notary public. In fact, Martha L. Hartley did not sign or swear to either of such documents and did not appear before either notary, and both instruments were forgeries, although each notary certified that she did so sign and swear before him.

The clerk of courts of Erie county, acting on that purported assignment, issued to Nottke a certificate of title “without noting thereon that the same was issued on a duplicate certificate.”

On April 6, 194.1, Nottke pledged that certificate to the plaintiff bank as security for a loan of $761.25, and in making that loan plaintiff relied upon the validity of the certificate and, it being invalid, has been defrauded and damaged by defendants’ acts to the amount of the loan.

The gravity with which the law regards acts such as are here alleged to have been committed by these notaries is indicated by Section 131-1, General Code, which provides:

“Whoever being a notary public certifies to the affidavit of a person without administering the oath or affirmation to such person is guilty of a misdemeanor and shall be fined not more than one hundred dollars or imprisoned not more than thirty days, or both to to to j >

All of these transactions arose under the Certificate of Title Law governing sales and encumbrances of motor vehicles, Section 6290-2 et seq;, General Code. The penal section of that law is Section 6290-17, General Code, which provides that whoever violates any ' of the provisions of that law “shall be fined not more than $200 or imprisoned for not more than ninety days, or both.” If the allegations of the amended petition are true, these notaries violated two criminal laws. However, in this action plaintiff seeks to invoke a civil liability in tort upon each defendant notary for his alleged unlawful act. One of the essential elements of all tort liability is proximate cause. In other words, granting that the defendant’s act was negligent, was that act the proximate cause of the plaintiff’s damage!

Section 6290-11, General Code, a section of the Certificate of Title Law, provides:

“:f * * Said certified copy and all subsequent certificates of title issued in the chain of title originated by said certified copy shall be plainly marked across their faces ‘duplicate copy’ and any subsequent purchaser of said motor vehicle in the chain of title originating through such certified copy shall acquire only such rights in such motor vehicle as the original holder of said certified copy himself had. Any purchaser of such motor vehicle may at the time of such purchase require the seller of same to indemnify him and all subsequent purchasers of said motor vehicle against an3r loss which he or they may suffer by reason of any claim or claims presented upon the original certificate.”

It is now urged that had the clerk of courts of Erie county so endorsed the certificate issued to Nottke and which he pledged to the bank, it would have had notice of the infirmity in Nottke’s title and could not now be heard to say that it relied upon that certificate, therefore the clerk’s failure alone was the proximate cause of the loss.

The cause of the plaintiff’s loss was the sequential and wrongful acts of each notary, the clerk and Nottke. Without any one of them, the loss would not have occurred. While the respective acts of the notaries and the clerk were not joint or done in the execution of any agreement or conspiracy between any two of them, or in concert or concurrence of action in point of time, each act did combine and coalesce with the others and thus link a continuous chain of events which produced the result and, together with Nottke’s fraudulent conduct, constituted the proximate cause of the bank’s loss, which would not have occurred but for each independent act.

The unlawful act of defendant Williams was unbroken by any intervening cause, but it, operating alone, could not have produced the result. It caused the loss only because of the unlawful acts of the others, none of which could have produced the result without the concurrent effects of the act of defendant Williams. Several things, including a notary’s false certificate, operated to cause damage in Inglewood Park Mausoleum Co. v. Ferguson, 9 Cal. App. (2d), 217, 49 P. (2d), 305. That court concludes:

“It is not essential to a recovery of damages that a defendant’s wrongful act be the sole and only cause of the injury; it is sufficient if it be a proximate cause which in the natural course of events produced, either by itself or in conjunction with other causes, the damage.”

In Conor v. Flick, 64 Ohio App., 259, 28 N. E. (2d), 657, this court discussed the relationship of more than one act or omission as constituting the proximate cause of resulting damage. To the same effect is Motz v. City of Akron, 22 Ohio App., 98, 103, 153 N. E., 868, and 62 Corpus Juris, 1133.

Defendants Williams and Berk can not be heard to say that had the clerk done his duty and endorsed the certificate “duplicate,” the loss would not have occurred. 2 Restatement of Torts, 1206, covers this:

“Failure of a third person to perform a duty owing to another to protect him from harm threatened by the actor’s negligent conduct is not a superseding cause of the other’s harm.”

An element of proximate cause is that the harm which results must be such that the actor might anticipate it as likely to happen. When each of these notaries certified to the false affidavits at the instance of Nottke, they might well have anticipated that some fraudulent use might be made of them. That is why such acts are made criminal.

The wrongful acts of the notaries, being thus conjoined and related, were material parts of the proximate cause of the damage and, being so, the actors were, in the sense of liability,- joint tort-feasors and are liable to the plaintiff. It follows that their sureties who are parties herein, are also liable.

The trial court erred in sustaining the demurrers and dismissing the amended petition and the judgment is reversed and the cause remanded.

Judgment reversed and cause remanded.

Lloyd and Stuart, JJ., concur.


author: Ross, P. J.

text:
    Champs, Appellant, v. Stone, Appellee.
    (No. 6337
    Decided November 22, 1943.)

      Mr. Louis R. Rehear, for appellant.

      Mr. Walter W. Harris, for appellee.
   Ross, P. J.

The notice of appeal filed in the Court of Common Pleas of Hamilton county contains the statement that the appellant “does hereby give notice to the defendant appellee, Dr. Emmons B. Stone, of his intention to appeal on questions of. law to the Court of Appeals of the First District of Ohio, Hamilton county, from the Court of Common Pleas of Hamilton county, Ohio, in the above styled caption cause and case.”

Laying aside the question of whether this is a notice of appeal within the meaning of Section 12223-5, General Code, and might be subject to amendment, an examination of the transcript of docket and journal entries as well as the original papers filed in this court develops that no final order was entered in the Court of Common Pleas of Hamilton county, Ohio.

On June 9, 1943, the jury was directed to bring in a verdict in favor of the defendant. It complied with such direction and the verdict appears among the papers. On June 10,1943, motion for a new trial was. filed and on June 21,1943, such motion was overruled. On June 23, 1943, the notice of appeal referred to was filed. No judgment ivas entered on the verdict.

The trial consisted only of the opening statement of counsel for plaintiff. Motion was made for “judgment on the opening statement of counsel.”

The motion for new trial was therefore entirely ineffective for any purpose, no factual issues having been considered by the court. See Section 11575, General Code; Cullen v. Schmit, 137 Ohio St., 479, 30 N. E. (2d), 994.

If a final judgment had been entered before the motion was filed, the filing of such motion would not have affected the rights of either party.

In the bill of exceptions it appears that the court granted the motion for judgment made by the appellee. The transcript shows:

‘ ‘ The said jury having heard the testimony adduced, counsel for defendants moved the court for an instructed verdict, the court being fully advised in the premises grants said motion, and instructs the jury to return a verdict for the defendant, which was accordingly done, to wit: * * V’

Can this be considered a final judgment in the case1? Obviously not, for, thereafter, in pursuance of such order the jury did render the verdict. Although the effect of such formalities is to render a judgment for defendant, actually such was not done. Final'judgment should have been entered on the verdict.

Such being the state of the record, there is nothing before this court to sustain an appeal, and the appeal is therefore dismissed sua sponte.

Appeal dismissed.

Hildebrant and Matthews, JJ., concur.


author: Montgomery, P. J.

text:
    Dozier et al., Appellees, v. Keller et al., Appellants.
    (No. 2133
    Decided January 27, 1944.)

      Mr. F. W. Andrews, for appellees.

      Messrs. Blumenstiel, Strong & Blumenstiel, for appellants.
   Montgomery, P. J.

The verdict of the jury in this case was not manifestly against the weight of the evidence. The evidence to sustain it was clear and convincing.

Of course, a fraudulent representation must be of aii existing fact in order to justify an action in tort for damages sustained by reason of an acting upon such representation.

However, the mental attitude and the then intent of the one who makes the representation are existing facts and the only difficulty is one of proof. See American Hosiery Co. v. Baker, 18 C. C., 604, 10 C. D., 219; 19 Ohio Jurisprudence, 359, Section 53; 26 Corpus Juris, 1093, Section 26.

In the instant case the conclusion is inescapable that defendant Keller, acting for himself and as authorized agent of the other defendants, did solicit and accept the check for $535 — the only asset of the plaintiffs— under the expressed representation that he would hold it until it should be learned whether the remainder of the $4,000 could be raised by the plaintiffs to purchase the real estate in question, and, if such remainder could not be realized, the check would be returned to them.

The further conclusion is likewise inescapable that • the plaintiffs relied upon this representation, parted with possession of the check, and were damaged to the extent of its value.

Here there is proof of existing facts, to wit, the mental attitude and the intent of Keller not to keep his agreement, and the falsity of his promise. He did not hold the check until it could be learned whether the needed balance could be raised and of course he did not and could not thereafter return it. He cashed the check early — the first banking day after its receipt.

The defendants do not complain of the charge of the court. In argument their counsel expressed approval of it. They complain, in fact, only that the judgment of the lower court is against the weight of the evidence and against the law. We can not and do not so find.

The judgment is affirmed.

Judgment affirmed.

.Sherick and Putnam, JJ., concur.


author: Jackson, J.

text:
    York, Admx., Appellee, v. Pennsylvania Rd. Co., Appellant.
    (No. 1441
    Decided November 19, 1943.)

      Mr. Walter Wright and Mr. Oliver K. Bender, for appellee.

      Messrs. Bentley, Neville & Cory, for appellant.
   Jackson, J.

The issues in this case are raised by a petition and an answer. The petition contains two causes of action. The first cause of action charges negligence as to the installation of a guard rail maintained along the side of the regular rail, with hard surface material filling the space between the two rails; that, due to weather and time, wear, and moving trains passing over such rails, the hard material had broken out and worn away in places, and at a point thirteen feet east from the west end of the guard rail a depression or hole obtained between the guard rail and the regular rail; and that the decedent of the plaintiff, while walking across this installation at Lane street in Bucyrus, Ohio, caught his foot or shoe in the depression and was unable to extricate himself before a train operated by the defendant struck Guy Edward York, causing his death.

The second cause of action was abandoned by the plaintiff before the close of the trial.

The record discloses that the defendant offered no testimony after the plaintiff had rested her case.

The facts of the case, material to a consideration of this appeal, as disclosed by the bill of exceptions, are as follows:

Guy Edward York, the decedent of the plaintiff, slightly over twenty-one years of age, and married, left a place of business located about a square and a half north of the intersection of Lane street and the Pennsylvania Railroad tracks in Bucyrus, Ohio, some time between eleven and eleven-thirty p. m., on September 26, 1942. His residence was located south and east of the intersection, in Bucyrus. Between the time of eleven o ’clock and twelve o ’clock p. m., on such date, one and possibly two trains passed over the intersection, going in a westerly direction. At eight o’clock on the morning of September 27, 1942, the body of Guy Edward York was discovered about twenty-three feet west of the west edge of the Lane street grade crossing. The body was lying between the two main tracks, doubled up, fully clothed with the exception that the right shoe was off of his foot. The right shoe, with the laces broken, was lying between the south outer guard rail and the south main rail of the westbound main track, about thirteen feet east of the west edge of the Lane street crossing. The companion shoe was still remaining on the left foot of the decedent of. the plaintiff. The decedent of the plaintiff had his watch in his clothes at the time the body was found, and the watch indicated that it had stopped at eleven thirty-five. The death was caused by a severe blow on the back of the head, causing a fracture of the skull. The distance betwéen the top or ball of the guard rail and the top or ball of the main rail where the shoe was found, is two and eleven-sixteenths inches, and the space between such guard rail and the main rail opens downward for a distance of five and one-half inches from the tops or balls of these rails. Below the balls of the rails the space between the guard rail widens to an' opening five and three-eighteenths inches at its widest point. The shoe found between the guard rail and the main rail was of the low Oxford type, four inches across the widest place of the sole, and with a rubber heel thereon. When the shoe was removed from its position between the two rails it was taken out sideways and no difficulty was had in getting it out.

Defendant contends that under the evidence the case should not have been submitted to the jury and a directed verdict should have been had because there was no proof of any actionable negligence on the part of the defendant, and that the entire proof was based or predicated upon one presumption or inference upon another.

It is our opinion that the plaintiff made a case for submission to the jury.

“The competency and admissibility of circumstantial evidence tending to prove a fact or facts in issue are expressly recognized, provided the effect of the evidence is to make the facts alleged appear more probable than any other facts, and the fact in issue to be a natural inference from the circumstances offered in proof. In- fact, it has been said that circumstantial evidence in all classes of cases is as competent as positive .evidence, and the jury has the right to rely upon it as direct evidence.” 17 Ohio Jurisprudence, 182, Evidence, Section 139.

Plaintiff’s requests to charge before argument, numbers 1, 2 and 3, were objected to by the defendant for the reasons that some of the facts stated therein were not supported by any evidence, and a fact was assumed which was not in issue.

Plaintiff offered no direct evidence that the space between the two rails where' the shoe was found had been properly filled with some hard surface material which, due to weather, time, wear, and the moving of trains over the rails, had broken out and worn away in places. However, the record discloses that when the jury went to view the premises, at the request of the defendant and by agreement of counsel, the jury were instructed that: ‘ ‘ The sheriff may point out to you the construction of this crossing; how it is constructed. And you are also to look as to the location of this guard rail and at the point thirteen feet in from the west side, Mr. Snyder will step that off, about four and one-third steps, and you are particularly directed to look there. You will use your sense of sight.’.’

These instructions, given to the jury prior to their viewing the premises, where the decedent is alleged to have met his death, were given by agreement of all counsel, and under such instructions the jurors were entitled to consider as evidence in the case, anything they might observe with reference to the construction of the crossing, the location of the guard rail, and the point thirteen feet east from the west side of the crossing. This evidence would include the filling, if any, between the rails, and the breaking and wearing away in places, of the material used to make such filling, and as nothing to the contrary appears in the record, it is a proper presumption that the conditions observed by the jury, under the instructions, and considered as evidence by them, warranted the submission of the instructions complained of, and the finding that the condition of the crossing was of the character charged in the petition.

“The scope of an instruction in a particular case is to be determined not alone by the pleadings therein, but also by the evidence in support of the issues between the parties; * * * if there is no evidence to support an issue raised by the pleadings, the trial court is not required and should not instruct the jury on such issues notwithstanding the state of the pleadings, for if no evidence has been offered in support of a question of fact, there is nothing to submit to the jury on that point. In such case the trial court not only is not required to charge the jury upon such issue, but should direct the jury not to consider it.” 39 Ohio Jurisprudence, 955, 956, Trial, Section 268.

The court should direct the jury not to consider an issue joined by the pleadings, upon which no evidence is offered. 31 Ohio Jurisprudence, 963, Pleading, Section 352; Lewistown Foundry & Machine Co. v. Hartford Stone Co., 92 Ohio St., 76, 110 N. E., 515; P. C. & St. L. Ry. Co. v. Fleming, 30 Ohio St., 480.

Defendant complains, as error, that there was a complete failure of proof bringing knowledge to the defendant of the fact of the condition between the regular rail and the guard rail, or that such condition had been in existence for a sufficient length of time that knowledge thereof should have been imputed to the railroad company.

Apparently the plaintiff grounds the case upon a violation of Section 8843, General Code.

In Section 8844, General Code, it is provided that the council of a municipality may exercise the powers concerning crossways and approaches and sidewalks, as defined in Section 8843, General Code.

The record does not disclose that the municipality of Bucyrus in any wise proceeded under this section. Therefore, the state law controls, and we must look to all the provisions of the state law with reference to grade crossings over the right of way of a railroad company.

The authority conferred on the council by Section 8844 of the General Code is to specifically fix and determine the kind and extent of the crossings and approaches thereto, within the general provisions of Section 8843, General Code,'and in the absence of action by the council, the first portion of the provisions of Section 8843, as well as the provisions of Section 8914 of the General Code are applicable to the duty of the railroad company as to crossings.

Section 8914 of the General Code, provides in substance, that a railroad company shall maintain at every point where a public road, street, lane or highway used by the public crosses its railroad, safe and sufficient crossings and such company shall be liable for all damages sustained in person or property by reason of the want or insufficiency of such crossing, or neglect or carelessness in the construction thereof, or in keeping them in repair.

Actual or constructive notice of a defect in a crossing, under these corelated sections, is not necessary because a violation thereof constitutes negligence as a matter of law.

The determination of the effect of the violation of a statute expressly providing for civil liability presents no problem of notice. 30 Ohio Jurisprudence, 212, Notice, Section 11; 29 Ohio Jurisprudence, 427, Negligence, Section 38.

Section 8914 of the General Code was former Section 3324 of the Revised Statutes.

“The obligation of Section 3324, Revised Statutes, * * * is peremptory and is not limited in its application to damages or injuries arising from loss of cattle resulting thereby, but applies to the protection of the public at large and to the benefits to which the public are entitled.” Ludtke v. L. S. & M. S. Ry. Co., 14 C. D., 120.

“In all jurisdictions, statutes, and ordinances specifically declaring that the person injured by their violation shall have his action for damages, such liability is enforced by the courts without further evidence of the wrongfulness of the act, and it matters little or not at all whether in such case such violations are termed negligence per se or not.” 29 Ohio Jurisprudence, 426, Negligence, Section 37; 2 Restatement of Law of Torts, 752, Section 286.

Defendant also claims that it is entitled to a directed verdict by reason of the contributory negligence of the decedent of the plaintiff.

“In actions for injury caused by negligence, where there is nothing in the plaintiff’s evidence tending to show contributory negligence, the presumption will be that there is no contributory negligence, and this presumption remains until the contrary is shown. In accordance with these principles, in an action for negligent death, the decedent is presumed to have used reasonable care for his own safety, in the absence,of evidence to the contrary.” 29 Ohio Jurisprudence, 627, Negligence, Section 150.

Contributory negligence was not pleaded by the defendant in its answer, and there is no testimony to show such negligence as a matter of law. Grunkemeyer, Admr., v. P., C., C. & St. L. Ry. Co., 3 Ohio App., 62; Baltimore & Potomac R. R. Co. v. Landrigan, 191 U. S., 461, 48 L. Ed., 262, 24 S. Ct., 137; Rothe v. Pennsylvania Co., 195 F., 21.

Therefore, the cause is affirmed, without penalty, at costs of the defendant.

Reasonable ground existed for the appeal.

Judgment affirmed.

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


text:
    Leeds, Inc., Appellee, v. Louisville & Nashville Rd. Co., Appellant.
    (No. 6237
    Decided March 22, 1943.)

      Mr. Morris J. Leher, for appellee.

      Messrs. Dinsmore, Shohl, Scmyer & Dinsmore, for appellant.
   Ross, P. J.

This is an appeal on questions of law from a judgment of the Municipal Court of Cincinnati, Ohio, against the defendant, a garnishee who has refused to pay the creditor of its'debtor employee pursuant to a former order made in proceedings in aid of execution.

The simple question of law presented by the appeal is whether the Municipal Court of Cincinnati may sustain a garnishment against the defendant, a railroad company, upon whom it has obtained personal service of summons, based upon a debt owing by the railroad company to its employee, a resident of Kentucky, receiving his pay from the railroad in Kentucky, but who contracted the debt to the plaintiff in Ohio, and where it appears the railroad company also does business and has property within the jurisdiction of the Municipal Court of Cincinnati.

The answer to this question is that such garnishment may be sustained. The authorities on the question are not all in accord. The conclusions in the cases considered have usually been controlled by the determination as to the situs of the debt owing by the garnishee to the employee.

This conflict is well stated in Harvey v. Thompson, 128 Ga., 147, 57 S. E., 104:

“The question as to where is the situs of intangible property, such as choses in action, for the purpose of attachment and garnishment, is one that has been the subject of numerous decisions. The conflict of opinion on the subject is distressing and hopeless. In some cases it is held that the situs, for the' purpose of garnishment proceedings, is the domicile of the principal defendant, in others that it is the domicile of the garnishee, and still others that it is the domicile of the debtor or wherever he may be found and sued. 20 Cyc., 1036; Brown on Jurisdiction, 2 Ed., Sec. 150.”

However, in Harris v. Balk, 198 U. S., 215, 49 L. Ed., 1023, 25 S. Ct., 625, the court says:

“Attachment is the creature of the local law; that is, unless there is a law of the state providing for and permitting the attachment it cannot be levied there. If there be a law of the state providing for the attachment of the debt, then if the garnishee be found in that state, and process be personally served upon him therein, we think the court thereby acquires jurisdiction over him, and can garnish the debt due from him to the debtor of- the plaintiff and condemn it, provided the garnishee could himself be sued by his creditor in that state.”

If the instant judgment against the defendant is satisfied, this would be a bar to any subsequent action either by the plaintiff creditor or the debtor employee elsewhere. See Restatement, Conflict of Laws, 166; Harris v. Balk, supra; L. & N. Rd. Co. v. Deer, 200 U. S., 176, 50 L. Ed., 426, 26 S. Ct., 207; B. & O. Rd. Co. v. Hostetter, 240 U. S., 620, 60 L. Ed., 829, 36 S. Ct., 475.

Such protection does not apply-where the employer, the employment and the prevailing obligation are in a foreign country which will not recognize such satisfaction. See Weitzel v. Weitzel, 27 Ariz., 117, 230 P., 1106, where many of the authorities noted herein are discussed in the opinion.

If the defendant railroad company refused to pay its employee in Kentucky, there can be no question that such employee might sue the railroad company in this state if proper service were obtained upon it, and such railroad company was doing business, as it is, in the jurisdiction of the court.

What has been said thus far shows how the weight of authority presses in favor of sustaining the garnishment. This is illustrated also in the notes in 27 A. L. R., 1399, and in Section 108, Restatement, Conflict of Laws, 165, where in the latter authority it is stated:

“A state can exercise through its courts jurisdiction to compel payment by a debtor who is subject to the jurisdiction of the state of a claim against him in favor of his creditor and to apply the proceeds to the satisfaction of a claim asserted by a third person, as plaintiff, against the creditor, although the state has no jurisdiction over the creditor.

“Illustration: 1. A has a claim against B for a debt of $1000 and B has a claim against C for a debt of $500. A brings an action against B in a court of state X and serves a summons upon C who is temporarily in X. B is domiciled in state Y and is served with a summons in Y. B fails to appear in the action. The court has jurisdiction to give a judgment that A recover $500 from C, and payment of the judgment by C gives a defense to B’s claim against him, which will be recognized as valid in other states.”

See, also, 12 University of Cincinnati Law Review, 414, annotating this section 108 Conflict of Laws— where the several Ohio authorities are noted.

It is the claim of the defendant garnishee that Ohio does not appear in the column favoring such power in our courts. The first case noted by defendant is that of American Sheet & Tin Plate Co. v. Lewis, 20 C. C. (N. S.), 443, 26 C. D., 438. This case is in direct conflict with the general rule. It is largely based upon the case of Buckeye Pipe Line Co. v. Fee, 62 Ohio St., 543, 57 N. E., 446. The second paragraph of the syllabus of the Fee case is:

“Our statutes regulating attachment find garnishment (Sections 5522, Revised Statutes, and following), do not give to the court issuing such process jurisdiction over property of the defendant situate wholly beyond the borders of the state, nor power to require a garnishee having property of the defendant in his possession without the state to surrender the same into the custody of the court, and an order on the garnish ee requiring such act is without legal effect.”

In this case by order of garnishment, the plaintiff in an Ohio court sought to reach 1036 barrels of oil held by the defendant “garnishee” in Indiana to the order of the judgment debtor.

In the opinion the reason for the conclusions of the court expressed in the portion of the syllabus quoted is apparent:

“Coming now to the merits of the case, the question presented is whether or not the court of Allen county had, by virtue of the attachment proceedings, such control or jurisdiction over the property of the defendants situate in Indiana, and in the possession of the Company, as to enable it to make a valid order requiring the garnishee to produce that property in Allen county and surrender it into the custody of the court. And as to the garnishee, the question is not merely, whether the garnishee had property of the debtor in its hands, but whether it had the property under such circumstances as to make it answerable for it in Allen county.

“It is to be remarked at the outset that an attachment proceeding is exclusively a statutory one, and hence we look to our law regulating attachments for the source of authority to the court and its officers. What that statute lawfully authorizes, the plaintiff in attachment is entitled to demand; what it fails to authorize he may not demand, for it is well established that equity does not and cannot aid the statute. The purpose of the statute is to reach the property of defendant in the suit, and subject it to the demand of the plaintiff. In this aspect an attachment proceeding is In the nature of a proceeding in rem, and, as in all proceedings in rem, the thing against which the proceedings are directed must be brought within the jurisdiction of the court. 1 Green. En. sections 542-3. The proceeding reaches out for the tangible property of the defendant, to be levied on directly by the officer or obtained by garnishee process served on one who may have property of defendant in his possession which the officer cannot get at, or may be owing the defendant. The term attach implies seizure. As stated by Hosmer, C. J., in Hollister v. Goodale, 8 Conn., 332; ‘The word attach, derived remotely from the Latin term attingo, and more immediately from the French attacker, signifies to take or touch, and was adopted as a precise expression of the thing; nam qui nomina intelligit, res etiam intelligit. The only object of attachment is to take out of the defendant’s possession, and to transfer into the custody of the law, acting through its legal officer, the goods attached, that they may, if necessary, be seized in execution, and be disposed of and delivered to the purchaser. From both these considerations it is apparent that to attach is to take actual possession of property. Hence, the legal docti’ine is firmly established that to constitute an attachment of goods, the officer must have actual possession and custody.’ This well states the principle at the foundation of the law of attachment, and is to be kept in mind as having an important bearing on the question here. As ancillary to it is the other method of getting at the property by process of garnishment already referred to.”

And, again, at page 558 of the opinion it is stated:

“No question is or could be made that property without the state can, by virtue of a process of attachment, be seized by an Ohio officer, and of course such property could not be delivered into court. And it seems to us clear, that, notwithstanding the somewhat general language of the statute respecting garnishment, the property in the garnishee’s hands, for which he must answer, is intended by the statute to be limited to property within the state, for it could hardly have been the intention of the general assembly to give a plaintiff in attachment greater power over the tangible property of his debtor situate out of the state by virtue of garnishment than would be possible by the direct process of attachment. On the contrary it would seem, considering all the statutes together, that the intent is clearly manifest that property which may be sequestered in the hands of a garnisheé must be within the state in order that it may be taken and sold to satisfy such judgment as may be obtained against the debtor, for it is in contemplation that the officer will seize the property in the possession of the garnishee if'he is able to get at it; also that the garnishee may voluntarily surrender it to the officer. The inference seems reasonable that property to be so reached is intended to be confined to such as would be subject to seizure by attachment or execution if in the hands of the-- debtor himself. ’ ’

And, again, at page 562 :

“Now it is conceded in argument by defendant in error that ‘the liability and rights of this garnishee to this attaching creditor are measured by its liability to Miller, Tallmage & Russell.’ That is, if under the facts as they existed at the time of the attachment and garnishee process were issued, Miller, Tallmage & Russell could have maintained in Allen County replevin against the Company for this oil, and, failing to obtain possession of the oil, would have been entitled to a recovery for its value, then Fee would have the right to reach the same result by attachment and garnishment.' But could Miller,'Tallmage & Russell have maintained such an action in Allen County at that time1? Manifestly not. The option of selecting the point of delivery had not been exercised by the Company as no action by tbe owners bad called for its exercise. ’ ’

It seems clear that tbe Circuit Court in tbe Lewis case extended tbe principle employed in tbe Fee case far beyond tbe reasonable intendments of tbe latter decisión. In other words, tbe Fee case is not an authority for tbe conclusion reached in tbe Lewis case.

Tbe next case to which our attention is directed by tbe defendant garnishee is that of Emerman v. Trimble-Mudge & Co., 11 Ohio App., 360. Tbe effect of this opinion is merely to bold that constructive service may not be obtained against a non-resident defendant by a non-resident plaintiff in an Ohio court by garjiisheeing a debt owed by a foreign corporation (“capable of suing and being sued” in an Ohio court) to such nonresident defendant. Tbe debt was based on material delivered by tbe non-resident defendant to tbe garnishee in Ohio. Tbe debt was payable in Pittsburgh, Pennsylvania. Tbe decision is based upon two cases: American Sheet & Tin Plate Co. v. Lewis, supra; Reimers v. Seatco Mfg. Co., 70 F., 573. This latter case merely sustains tbe rule stated in tbe Emerman case. Tbe question presented is stated in tbe first paragraph of tbe opinion:

“Tbe question in this suit is whether, in a suit brought by a resident and citizen of Illinois against a resident and citizen of tbe state of Washington in the state of Michigan, a court of tbe latter state can acquire jurisdiction in rem to pronounce judgment against tbe nonresident defendant to tbe extent of a debt owed to tbe defendant by a corporation resident and citizen of Illinois doing business in Michigan, and liable by tbe laws of Michigan to tbe service of process in garnishment in that state. Tbe question of jurisdiction is raised by tbe defendant against whom such a judgment is sought.”

Again, it is apparent tbe decision is limited to tbe question of obtaining constructive service through garnishment. This is not the question instantly presented. None of the authorities hereinbefore mentioned as sustaining the principle permitting garnishment of the debt for the purpose of a judgment are considered.

The case of Riter-Conley Mfg. Co. v. Mzik, 3 C. C. (N.S.), 125, 13 C. D., 164, is in line with the weight of authority permitting garnishment under conditions similar to those extant in the instant case.

The general law has been noted and shown to be in accord with sustaining the garnishment under the facts of this case. Some Ohio authority, as has been observed, is also in accord. No controlling Ohio authority has been cited or found adverse to the general rule. Those inferentially indicating a different conclusion are not binding upon this court.

The better rule is that where the principal judgment debtor could recover in an action in an Ohio jurisdiction against his debtor, although the debt was primarily owing outside the state of Ohio, neither this fact nor his non-residence, or that the debt was incurred outside Ohio should militate against sustaining a garnishment against the debtor of such non-resident if valid service may be had upon the garnishee. This court is not called upon to decide, nor is it here decided that constructive service may be obtained against a non-resident by garnisheeing a debt, contracted in and owing in a jurisdiction outside of this state. This matter deals with the subject of process, with which we are not here concerned. Obviously such rule as is here announced does not apply to chattels or other property not actually in the jurisdiction of the Ohio court.

The judgment of the Municipal Court of Cincinnati is affirmed.

Judgment affirmed.

Hildebrant and Matthews, JJ., concur.


author: Carpenter, J. Stuart, J.,

text:
    Boblitt et al., Appellees, v. The Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. et al., Appellants.
    (No. 885
    Decided November 22, 1943.)

      Messrs. Thompson, Hiñe S Elory, Mr. Thomas E. Lipscomb and Mr. Howard A. Traul, for appellees.

      Messrs. Grimm,, Elliott, Shuttleworth &. Ingersoll, Mr. Harold G. Heiss, Mr. Russell B. Day, Mr. Meade C. Robinson, Mr. Edward K. Campbell and Mr. Edward G. Robinson, for appellants.
   Carpenter, J.

This appeal on questions of law and fact brought to this court for trial de novo an action which is in form one for an injunction, but in fact is to settle a dispute that has existed since 1911 between two local lodges or divisions, as they are called, of the Order of Railway Conductors of America, a voluntary labor organization (herein referred to as the O. R. C., or the Order). A division of O. R. C. usually consists of the conductors working on an operating division of a railroad system, and their seniority district usually coincides with the operating division.

The plaintiffs are five members of division No. 481 of O. R. C. who work on the Sandusky division of the Cleveland, Cincinnati, Chicago & St. Louis Railway Company system, which will be referred to by its popular name, the Big Four Railroad. That division extends from Sandusky, Ohio, through Berwick to Springfield, Ohio. The plaintiffs brought this as a class action representing themselves and all other conductors working on the Sandusky division.

The real defendants are the 0. R. C. and its executive officers and Division No. 193 of 0. R. C. and its executive officers. That division is composed of conductors who work on the eastern division of The Toledo & Ohio Central Railroad Company system, herein called the T. & 0. C. That operating division extends from Toledo through Fostoria and Berwick to Thurs-ton, Ohio.

The Big Four Railroad and the New York Central Railroad Company which, as lessee, has operated the T. & 0. C. system since 1922 and the Big Four since 1930, are nominal defendants. Their position is that this is a dispute within the 0. R. C., the representative of all of their conductors for collective bargaining purposes, and they are willing to follow its directions or those of the courts in the employment of their conductors.

In 1911 the Big Four, by contract, acquired “track-age rights” over that part of the eastern division of the T. & O. C. from Berwick to Toledo, a distance of about 47.5 miles, and has since operated passenger trains over that road in connection with its Sandusky division south of Berwick. Part of the time since 1911 some of those trains have made scheduled stops to receive and discharge passengers at Fostoria and occasionally at smaller towns on that line.

Whenever Big Four trains have handled local passengers on that part of the T. & 0. C., the conductors of Division No. 193, and the other operating workmen —engineers, firemen and trainmen — on that division have asserted claims to a share of the work on those trains. Division No. 481 has disputed this, claiming that the T. & 0. C. conductors have not been deprived of any work by reason of the Big Four passenger trains handling local passengers at Fostoria and that under the constitution and statutes of the order they are not entitled to work on those trains.

In 1917, officials of the order, to whom the controversy had been referred, ruled that T. & 0. C. conductors should have a share of the work in question. About that time the Big Four discontinued passenger service, at Fostoria, and the 0. R. C. ruling was not put into effect. In 1921, when that service was resumed, the officers of 0. R. C. directed that its former order be observed, and after seven months the Big Four again discontinued the service and the controversy subsided until 1929 when the T. & 0. C. men, claiming- that some passengers were being handled at Fostoria, insisted on a share of the work as directed by the former order of 0. R. C. officials. Nothing was done about this claim until 1934, when settlement of the matter by the conductors and other train and engine workmen was attempted by a contract with the Big Four entered into October 17, 1934, under the supervision of grand officers of the four brotherhoods. By it, the T. & 0. 0. conductors were to be allowed to work on the Big Four trains up to 4,500 miles each • month. Thereupon the Big Four discontinued one-half of its passenger train service at Fostoria and a new dispute started as to the interpretation the contract should have under the changed conditions.

Again the grand officers of the four brotherhoods were called in and under their supervision a new contract was executed April 6, 1936, by the eight general chairmen of each of the orders on both railroad systems. By this, the T. & O. C. conductors were to be permitted to work on Big Four trains up to 5,000 miles per month.

This contract being unsatisfactory to the conductors of division No. 481, they appealed to the general committee of adjustments of the O. R. C. of the Big Four system, which voted disapproval of the contract, and thereupon the matter was referred to the jurisdiction committee of O. R. C., which is composed of the president, senior vice-president, assistant to the president and two general chairmen from each of the four districts into which the United States and Canada are divided under the laws of O. R. C. It is the supreme authority within the order for the settlement of disputes. After a full hearing, this committee confirmed the disposition of the matter as made by the contract of April 6, 1936. Thereupon the plaintiffs, having exhausted their remedies within the order, filed this action, claiming that the action of the officers of the order was unreasonable, arbitrary, capricious and oppressive and in contravention of the statutes of the order and deprived them and those they represented of valuable seniority rights.

On August 15, 1935, on the application of the New York Central to the Public Utilities Commission of Ohio, it was permitted to discontinue the one passenger train a day each way it had operated over the eastern division of its T. & O. C. line. At that time the timetable of the N. Y. C., Sandusky division, .which is in evidence, shows it was operating two trains a day each way which stopped at Fostoria and Luckey and one each way at Pemberville, and immediately following the discontinuance of the T. & 0. C. trains, three trains each way stopped at Fostoria.

This whole controversy turns upon the application of statute 62 of 0. R. C., which plaintiffs claim was violated by the rulings of 0. R. C. officers. The material part of that statute is as follows: (the lettering is added for reference purposes herein)

(a) “Whenever one railroad is absorbed or leased by another railroad the conductors on the road absorbed or leased shall retain their right and seniority as heretofore on the road absorbed or leased. When it becomes necessary to re-adjust the service of the merged roads, the trains and runs shall be manned by conductors of the respective roads in' proportion, as nearly as practicable, to the mileage run on the territory of each.

(b) “Where trackage rights are hereafter granted to a foreign road, which reduces the business of the road over which trackage rights are acquired by foreign roads, a number of conductors equal to those displaced will be employed in running trains on such foreign railroads, while on the same trackage where conductors have been displaced; on the termination of trackage rights or agreements being returned, a number of men equal to the traffic returned will go with the .traffic under the bulletin system provided on the line.

(c) “When differences arise between conductors . on the property absorbed or leased, or where trackage rights are acquired, or where services of different railways are pooled and said differences can not be adjusted by general committees for the lines involved under the provisions of this section, same will be referred by the president to the jurisdiction committee, who may decide the question without regard to this section, and whose decision thereon shall be final, without appeal, notwithstanding article 12 of the constitution. ’ ’

Paragraph (a) was adopted by the grand division, or triennial convention, of O. R. C. in 1913, (b) in 1919 and (c) in 1928.

It is the contention of the plaintiffs that the ruling of the 0. R. C. officers in 1917 was made on the mileage basis as provided for in paragraph (a)-, which was the only statute they then had to guide them; that, notwithstanding paragraph (b), adopted in 1919 specificially applied to “trackage rights” — situations like this — all later rulings of 0. R. C. officers, including the contracts of 1934 and 1936 and the action of the jurisdiction committee followed the 1917 ruling using the mileage basis of (a) and not the “'displaced” conductor basis as provided for in (b); and that no division No. 193 conductors were actually “displaced” by the Big Four passenger operations, hence they were not entitled to any share of the work on Big Four trains and in ruling that they were so entitled, the officers * decisions were unreasonable, arbitrary, capricious and oppressive, and in contravention of statute 62.

This contention loses sight of two considerations:

1. Some passenger business was handled by the Big Four in the area when the contracts were made and when the jurisdiction committee heard the case. No one can say now just what that passenger business might have been had the Big Four not operated therein.

The more important consideration is:

2. When the matter was heard by the jurisdiction committee, paragraph (c) of statute 62 invested that body with plenary power to ‘ ‘ decide the question without regard to this section, and whose decision thereon shall be final.”

The supreme legislative authority of O. R. C. is its grand division, which meets triennially and it has power to make and amend its constitution and statutes, and all of the members of the order are bound by its action. When it adopted paragraph (c) in 1928, it had before it and knew the terms of paragraphs (a) and (b), which •had been in effect and tried for ten years. It is fair to assume that the members of that body, representing as they do every division of the order, all veterans in the railroad service, recognized the complexity of situations that had arisen and would continue to arise in the practical operation of railroads, and in clear language deliberately invested its highest tribunal, the jurisdiction committee, after a hearing, with full power to use its judgment in settling disputes of this very character “where trackage rights are acquired” and to “decide the question without regard to this section (62),” and its decision is made final. In effect, it is given the power after a hearing de novo to do what it deems to be just to all parties concerned.

There is not a word in the evidence of any fact to indicate that the jurisdiction committee did not give the evidence before it full and careful' consideration, or that it was prompted by any ulterior motive in the decision it made, or that any member of that body had any personal interest in either side of the controversy.

This court can not say that this body of eleven experts in conductor service abused the broad discretion with which it was clothed when it disposed of this matter as it did.

The defendants urge that, the 0. R. C., being the accepted collective bargaining agency between the conductors and their employer under the Railway Labor Act, any interference by the court with the order’s action in that regard would be a violation of that act, and beyond the powers of the court. In' view of the conclusions .reached on the basic question, this is unimportant. However, it seems obvious that this dispute is one within the walls of the bargaining agent, the order, and must be settled there. When this is done, the employer stands ready to abide by that settlement, both as to whom it will employ as its conductors and their seniority rights. Until this is done, the act has no application.

The court’s finding will be for the defendants on all issues, the injunction heretofore granted dissolved, and the petition dismissed at the cost of plaintiffs.

Decree accordingly.

Lloyd and Stuart, JJ., concur.

Stuart, J.,

concurring. It is evident on the record and from the conclusions reached by the Court of Common Pleas and this court respectively, that section 62 of the statutes of the order may reasonably be construed in different ways, and therefore it can not be said that the action of the jurisdiction committee was an abuse of discretion or contrary to and in violation of the constitution and statutes of the order, or was “unwarranted, illegal or arbitrary.” It follows that its decision was final, that the parties hereto were bound thereby, and the courts are without authority to disturb it.

It was said in Richards v. Morison, 229 Mass., 458, at page 460, 118 N. E., 868:

“The plaintiff, by becoming a member of the association, agreed to be bound by its rules and subject to its discipline. As one of the incidents of membership, he consented to accept liability to expulsion, ordered in accordance with its regulations. When the action of the association or of its officers is challenged in respect to the exercise of the power of expulsion, the court does not sit in review upon the wisdom or expediency of their conduct. The decision of the organization and its officers acting in good faith in accordance with the rules on that subject is the final tribunal. There is no general appeal to the courts.”

Lloyd, Carpenter and Stuart, JJ., of the Sixth Appellate District, sitting by designation in the Third Appellate District.


author: Guernsey, P. J.

text:
    Siegel, Appellant, v. The O. M. Scott & Sons Co. et al., Appellees.
    (No. 205
    Decided October 15, 1943.)

      Mr. Philip Lustig, for appellant.

      'Mr. G. A. Hoopes, for appellees.
   Guernsey, P. J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Union county, Ohio, sustaining a demurrer to the petition of plaintiff, upon the ground that it did not state facts sufficient to constitute a cause of action, and dismissing the same, in an action in that court wherein Alex Siegel, the appellant herein, was plaintiff, and The 0. M. Scott & Sons Company and Paul Williams, appellees herein, were defendants.

The petition, to which the demurrer was sustained, omitting the caption and certain allegations as to the nature and extent of the damages sustained by plaintiff, which are not material to a consideration of this appeal, and omitting the signature and oath thereto, and for convenience in discussing the same, designating by number in the order they appear the paragraphs thereof which are material to a consideration of this appeal, is as follows:

1. “Plaintiff, for his petition, states that the defendant, The 0. M. Scott & Sons Company is. a corporation organized and existing under and by virtue of the laws of the state of Ohio, maintaining offices in the city of Marysville, Ohio, and is engaged in the manufacture and sale of garden articles and garden seeds.”

2. “Plaintiff states that the defendant, Paul Williams, is and at all times herein mentioned was an officer and agent of the defendant company.

3. “Plaintiff says that in the January term, 1943, in Union county, an indictment was procured against him upon a charge of making, drawing, uttering and delivering to the defendant company herein certain checks with intent to defraud.

4. “Plaintiff alleges that said indictment, charging the plaintiff herein with the crime of uttering said checks with intent to defraud said defendant company, was made maliciously and without any reasonable or probable cause and for the purpose of extorting money from plaintiff, and that by reason of said indictment a warrant was issued for the arrest of this plaintiff and that he was thereupon, with force and violence and against his will, arrested and detained at the Central Police Station in the city of Cleveland, Ohio, and that he was placed in a cell with other common prisoners.

5. “Further plaintiff states that he was forcibly detained at the Central Police Station in the city of Cleveland, Ohio, from January 28, 1943 to January 29, 1943; that on January 29, 1943 he was transferred by the sheriff of Union county to the Central Police Station in Akron, Ohio, where again he was placed in the custody of the chief of police of Akron, Ohio, and other police officers and was held in said police station for more than two hours; that he was then transferred to the county jail of. Union county, Ohio, located in the city of Marysville, by the said sheriff of Union county and that' he was forcibly, unlawfully, maliciously and against his will deprived of his liberty by being placed in a cell in said jail and imprisoned and confined therein from January 29, 1943 to February 1, 1943.

6. “Plaintiff states that his unlawful, false and forcible arrest and malicious detention and the commitment to the Central Police Station at Cleveland, Ohio, and to the jail of Union county at Marysville, Ohio, was instigated and inspired by the defendant, Paúl Williams, individually and as an officer and agent of the defendant corporation, The 0. M. Scott & Sons Company and by certain agents of the defendant corporation who at this time are unknown to the plaintiff and, therefore, not named herein.

7. “Plaintiff states that previous to such forcible, unlawful and malicious arrest he was indicted by the grand jury of Union county upon the false testimony of the defendant, Paul Williams and other witnesses unknown at this time to the plaintiff and that he remained under said indictment until on or about February 4, 1943, when said indictment was nollied by a judge of the Court of Common Pleas of Union county.

8. “Plaintiff states that by reason of the forcible, unlawful, false and malicious arrest ánd commitment to the jails at Cleveland, Ohio, and at Marysville, Ohio, and his indictment by the Union county grand jury upon the false testimony of the defendant, Paul Williams and the false testimony of divers witnesses inspired and instigated to so testify by Paul Williams and the defendant corporation; that he has been compelled to undergo the shame, humiliation and disgrace of being unlawfully, forcibly and maliciously and without reasonable or probable cause, charged.with the crime of uttering checks with intent to defraud. * * *

9. “Plaintiff, therefore, alleges that by reason of the forcible, unlawful, false and malicious arrest, imprisonment and indictment which was caused by the acts and at the instigation and inspiration of the defendant, Paul Williams, and by the defendant company herein named, he is entitled to exemplary damages and has been damaged in the sum of twenty-five thousand dollars.

10. “Wherefore plaintiff prays judgment against the defendants in the sum of twenty-five thousand dollars and for his costs of suit.”

In order to determine whether the court erred in sustaining the demurrer to and dismissing the petition, it is necessary to consider what elements are essential to constitute a cause of action for malicious prosecution.

The general rule is that to maintain an action for malicious prosecution, the following elements must be shown: (1) The institution or continuation of original judicial proceedings, either civil or criminal; (2) by, or at the instance of, the defendant; (3) the termination of such proceedings in plaintiff’s favor; (4) malice in instituting the proceedings; (5) want of probable cause for the proceeding; and (6) the suffering of injury or damage as a result of the action or prosecution complained of. 34 American Jurisprudence, 706, Malicious Prosecution, Section 6. .See, also, 38 Corpus Juris, 386, 387.

Under the foregoing rule the continuation of an original judicial proceeding which may constitute an element of a cause of action for malicious prosecution is the continuation of such proceeding by the person instituting the same after acquiring means of ascertaining that the charge is not well founded. 34 American Jurisprudence, 718, Malicious Prosecution, Section 26.

The test of liability in such an action is: Was defendant actively instrumental in putting the law in force? To sustain the action, it must affirmatively appear as a part of the case of the party demanding damages that the party sought to be charged was the proximate and efficient cause of maliciously putting the law in motion. 38 Corpus Juris, 395.

An inspection of the petition in the instant case discloses that facts are alleged showing the institution of an original criminal proceeding, its bona ficle termination in favor of the present plaintiff, and damage conforming to legal standards resulting to plaintiff.

We will therefore confine our further consideration to the question as to whether the petition alleges facts showing the other elements essential to a cause of action for malicious prosecution, hereinbefore mentioned.

The allegations of the paragraphs of the petition which we have for convenience designated as numbers 3 and 4, are to the effect that in the January term, 1943, in Union county, an indictment was procured against plaintiff upon a charge of making, drawing, uttering and delivering to the defendant company herein, certain checks with intent to defraud, and that such indictment was made maliciously and without any reasonable or probable cause and for the purpose of extorting money from plaintiff, and that by reason of such indictment a warrant was issued for the arrest of plaintiff and he was thereupon, with force and violence and against his will, arrested and detained at the Central Police Station in the city of Cleveland, Ohio, but there are no facts alleged in these paragraphs showing that the defendants or either of them in any way instituted the criminal proceeding referred to or procured the indictment to be returned against the plaintiff.

In the paragraph of the petition which we have designated as number 5, plaintiff alleges facts showing the length of his'detention at the Central Police Station in the city of Cleveland, Ohio, his transfer therefrom to the Central Police Station at Akron and his detention there, and his transfer therefrom to the county jail of Union county and his detention there, but no facts are alleged showing the defendants were in any way responsible therefor.

In the paragraph of the petition which we have designated as number 6, plaintiff alleges that his unlawful, false and forcible arrest and malicious detention and commitment to the Central Police Station of Cleveland-, Ohio, and to the jail of Union county at Marysville, Ohio, was instigated and inspired by the defendant Paul Williams individually and as an officer and agent of the defendant corporation ■ The O. M. Scott & Sons Company, and by certain agents of the defendant corporation who at this time are unknown to the plaintiff and therefore not named herein, but no facts are alleged showing such action on the part of the designated persons was done maliciously or without probable cause, and there is no allegation that the indictment upon which such arrest, detention and commitment was made was instituted, instigated or inspired by the persons named.

The paragraph of the petition which we have designated as number 7, alleges that previous to such forcible, unlawful and malicious arrest plaintiff was indicted by the grand jury of Union county upon the false testimony of the defendant Paul Williams and other witnesses unknown at this time to the plaintiff, and that he remained under such indictment until on or about February 4, 1943, when such indictment was nolled by a judge of the Common Pleas Coui't of Union county.

It will be noted that there is no allegation that such false testimony was given either without probable cause, or maliciously.

In the paragraph of the petition which we have designated as number 8, plaintiff alleges that by reason of the forcible, unlawful, false and malicious arrest and commitment to the jails at Cleveland, Ohio, and at Marysville, Ohio, and his indictment by the Union county grand jury upon the false testimony of the defendant Paul Williams and the false testimony of divers witnesses inspired and instigated to so testify by Paul Williams and the defendant corporation, he has been compelled to undergo shame, humiliation and disgrace of being unlawfully, forcibly and maliciously and without probable cause, charged with the crime of uttering checks with intent to defraud, but there is no allegation that the false testimony of the defendant Paul Williams and the false testimony of divers witnesses, inspired and instigated to so testify by Paul Williams and the defendant corporation, was given maliciously or without probable cause.

The paragraph of the petition which we have designated number 9 is merely an allegation as to damages sústained by plaintiff which by reference back he predicates upon the preceding allegations of his petition as to his arrest, confinement and indictment., and recites a conclusion not warranted by the pleaded facts upon which it is predicated, that such arrest, confinement and indictment were caused by the acts and at the instigation and inspiration of the defendant Paul Williams and the defendant company, which conclusion, not being warranted by the pleaded facts upon which it is based, is not admitted by the demurrer.

The petition therefore does not state a cause of action in that it fails to show the institution of the original criminal proceeding by or at the instance of the present defendants against plaintiff, and also fails to show the absence of probable cause or the presence of malice on the part of the defendants for their participation in such proceeding.

Furthermore, if the petition should be construed as alleging that the defendant Paul -Williams and divers witnesses, inspired and instigated to' so testify by him ánd the defendant corporation, maliciously and without probable cause gave and furnished to the grand jury which returned the indictment against the plaintiff, false information against the plaintiff and thereby with malice and without probable cause caused and procured plaintiff to be indicted for the offense charged in the indictment, it would not state a cause of action against the defendants.'

The decision of the Supreme Court of Ohio, in the case of Taplin-Rice-Clerkin Co. v. Rower, 124 Ohio St., 123, 177 N. E., 203, 81 A. L. R., 1117, overruling the conclusions of the Supreme Court in the case of Kintz v. Harriger, 99 Ohio St., 240, 124 N. E., 168, 12 A. L. R., 1240, and the decision of the Supreme Court in the case of Stephenson v. McCurdy, 124 Ohio St., 117, 177 N. E., 204, affirming a judgment' of tlie Common Pleas Court sustaining a demurrer to a petition containing allegations of fact similar to tliose set forth in the preceding paragraph, éstablished the rule which has ever since been in effect that by reason of public policy testimony given before a grand jury may not be the basis of a civil action for malicious prosecution. - .

For the'reasons-mentioned, the Common Pleas Court did not err in sustaining the demurrer to and dismissing the petition, and its judgment will be affirmed at the costs of the appellant.

Judgment affirmed.

Jackson and Middleton, JJ., concur.