author: Shohl, P. J.

text:
    HABEAS CORPUS DOES NOT LIE TO SECURE RELEASE OF A DEPENDENT CHILD.
    Court of Appeals for Hamilton County.
    Bleier v. Crouse, Supt.
    Decided, January 28, 1920.

      Dependent Child — Jurisdiction of the Juvenile Court — Citation to Parent not Necessary — Remedy of Parent — Habeas Corpus does not Lie.

    1. Service of citation upon the parent of a child in a proceeding under Sections 1647 and 1648, General Code, is not a eendition precedent to jurisdiction over the child.
    2. Such parent,'who has not been cited, must seek his remedy in the first instance in the juvenile court of which such child is a ward.
    3. An action in habeas corpus in the court of common pleas can not be maintained to secure the custody of a child committed by the juvenile court.
    W. F. Fox, for plaintiff in error.

      John C. Hermann, for defendant in error.
   Shohl, P. J.

Heard on error.

This is a proceeding in error to review the judgment of the court of common pleas in dismissing a petition in habeas corpus.

The action was .brought by Charles Bleier, who alleges that he is the father of three minor children, under the age of sixteen years, seeking to regain their custody from The Children’s Home of Cincinnati, to which they were committed by the juvenile court. The petition alleges that the' children are illegally restrained and deprived of their liberty, without any legal authority, by Meigs V. Crouse, superintendent of the Children’s Home; that they were not detained for any criminal or supposed criminal matter; and that neither they nor the petitioner have consented to their restraint and detention, and petitioner has frequently demanded of the defendant that he surrender the children, but that he has refused to comply with such demand. Plaintiff alleges that he is able, anxious and willing to care for them.

Meigs V. Crouse, as superintendent of the Children’s Home, filed an elaborate answer or return, in which he challenged the sufficiency of the petition and the jurisdiction of the court. He then denied all of the. allegations of the petition (fourth defense), and by way of fifth defense set forth in detail the facts pertaining to the commitment and detention of the three children, which in brief, were that for some time prior to and on January 21, 1914, the petitioner herein, and one Mary Bleier, who was the mother and had the custody of the (minors, were living together as husband and wife, in Hamilton County, Ohio; that the petitioner and said Mary Bleier refused to earn an honest living, or work, but lived off the charity of various charitable institutions in the city, with the natural result that the children were poorly and improperly clothed and fed, abused and beaten, until January 21, 1914, a petition was filed, as provided by law, in the juvenile court, representing that the said children (William, then a boy of nine years; Henry, then a boy of eight years; and Charles, then a boy of one year of age) were dependent persons, and asking the court to inquire into the alleged dependency of those children; that a summons was duly issued commanding the said Mary Bleier to appéar before the judge of the juvenile court with those children, and that at that time the said Mary Bleier with the petitioner herein did appear and request that the proceedings be continued, but that making no further attempt to properly provide and care for the children they were again cited to appear before the court, which they did, on May 16, 1914, at which time, after full investigation and consideration, the court found the allegations iii said complaint to be true and that the children were dependent, and ordered them to be committed to the care, custody, maintenance and control of the said, The Children’s Home of Cincinnati, and to remain under the care and control of said home until -they severally arrived at the age of twenty-one (21) years; that a certified copy of the commitment (Exhibit “A”) was duly attached to the answer, which commitment was recognized and designated as a temporary commitment; that the children remained in the care of the Children’s Home under that temporary commitment for more than a year thereafter; that shortly after the commitment, Mary B. Bleier, the mother, left Cincinnati and went to Chicago, and that is the last heard of her: and that the petitioner remained in Cincinnati for a short time and called to visit the children at the home, when the superintendent and other officers pleaded with hian to secure employment or to permit them to secure employment for him, so that he could properly support the three children, or at Least, contribute to their support in the home, all of which the petitioner refused and neglected to do, and shortty after the commitment left the jurisdiction of the court and went to Chicago where he has been ever since.

The answer further alleges that after the children had been in the home for over a year they were permanently committed to the home by the juvenile court on May 26, 1915, and permanent orders of commitment were issued by the court marked Exhibits “B,” “O'” and “D”; that under the authority vested in the Children’s Home it procured homes for each of said children and they are now in the care and custody of good parents and are receiving proper care and education; that two of the children, Henry and Charles, have been duly and regularly adopted by foster parents, through proper proceedings, as provided by the statutes, with the consent of the Children’s Home and the juvenile court, and that the other child, William Bleier, is likewise in a good and proper home and his foster parents are ready and desire to adopt him through proper proceedings; that the petitioner is not ready and able to properly care for the children and that he seeks only to find out their whereabouts, which would be a serious detriment to the children, in that it would unsettle them in their new homes and in their love and respect-and loyalty for their foster parents, and that the experience of all institutions having the care and custody of dependent or delinquent children shows that information such as is sought in this ease, in practically all instances, is used by the parents for improper purposes, and, at best, seriously interferes with the happiness and contentment of the children, and is therefore against public policy; and that said commitments were never set' aside, nor attacked by this petitioner or any other person, and are in full force and effect.

The petitioner thereupon filed what he entitled a motion to quash the return and to require the defendants to set forth where the children were. The court based the judgment of dismissal solely upon the petition and the commitments attached to the answer. The intention of both parties apparently was, however, that the motion be regarded substantially as a motion for judgment on an agreed state of facts. See Clayton, In re, 13 Dec., 546. No technical question is raised here, and the court will consider the case on the merits.

The case raises important question's as to the construction and effect of the juvenile court statutes. Section 1648, G-. C., provides that upon the filing of a complaint a citation shall issue requiring such minor to appear, and the parents or guardian, or other person, if any, having custody or control of the child, or with whom it may be, to appear with the minor, at a time and place to be stated in the citation.

The plaintiff in error contends that no citation was served upon him, and, that, therefore, he was not a party to the proceedings, and has not had a day in court. The contention is that the judgment of the court, while perhaps conclusive as between the state and .the child, does not determine nor conclude the parent. Defendant in error replies that there is no averment of such facts in the petition. We do not rest our decision •upon any technical question of the manner in which such issue must be raised.

It is a well-settled principle of law that no one is bound by a personal judgment or order of a court, who is not made a party thereto, and has not had a day in court, except parties privy in interest. Sharp, In re, 15 Idaho, 120 (96 Pac., 563; 18 L. R. A. (N. S.), 886). The petitioner is entitled to a day in court to have a determination of his rights regarding the custody of his children. House of Refuge v. Ryan, 37 Ohio St., 197; Farnham v. Pierce, 141 Mass., 203 (6 N. E., 830; 55 Am. Rep., 452n), and Milwaukee Industrial School v. Supervisors, 40 Wis., 328 (22 Am. Rep., 702).

How then is he affected by the commitment of his children by the juvenile court?

Proceedings under the juvenile laws are modern and do not coincide with any proceeding known to the old law. See State v. Hoffman, 31 O. C. A., —. The fundamental principle of the juvenile acts is conservation of the child. In the exercise of the power of parens patriae the Legislature has established the juvenile court and delegated to it certain of its powers. There is no authority to support the contention that notice to the parent is a condition prerequisite to jurisdiction of the juvenile court over the child. An examination of the juvenile law as a whole leads us to the conclusion that the jurisdiction of the court attaches to the child without regard to the citation of the parent. This is so, not because the parent has forfeited any of his legal rights, but because in such case the police power of the state is paramount. See House of Refuge v. Ryan, 37 Ohio St., 197, 203. When proceedings are regularly had in the juvenile court and there is a finding that the child is dependent, under Section 1643, General Code, it becomes a ward of the court. In the interest of the child and in the interest of society the court nan commit its custody to strangers, or to an institution for its moral training and education. (Marion Co. Children’s Home v. Fetter, 90 Ohio St., 110, 127.) The commitment by the juvenile court of Bleier’s children as dependents does not, however, preclude him from asserting any right to their custody and care, and he may have a day in court to determine his rights. It does not follow that he may maintain habeas corpus, nor that he can select his own court. If a parent is improperly deprived of the custody of his child by the action of the juvenile court, he has his remedy under the juvenile act, but by a proper. proceeding in that court. The jurisdiction of that court, when it attaches, is a continuing jurisdiction, and no other court has authority to interfere in an independent proceeding with the custody of the child thus entrusted by law to the court. Crist, In re, 89 Ohio St., 33. The authorities show that after a child has become a ward of the juvenile court, the court has authority to vacate its original order, or modify the same, or make such further and additional orders in relation thereto as may be just and proper.

The proper forum for a parent who is not satisfied with the order of the juvenile court is the juvenile court itself, and such court will hear his application. State v. Bristline, 96 Ohio St., 581., See also Cleveland Protestant Orphan Asylum v. Soule. 24 C. C. (N. S.), 151.

. Procedure in habeas corpms was specifically authorized under the statutes of Ohio existing at the time of the eas§ of House of Refuge v. Ryan, supra. There was no other judicial remedy provided in Massachusetts and Wisconsin, as shown by the cases above referred to. The remedy now provided by the Ohio law is by an application to the juvenile court to modify its findings.

If the. adoption proceedings have now rendered- it impossible for the court to restore the children to petitioner, the responsibility rests not with the juvenile court, but with the parent who has delayed for so many years in asking for their restoration. If the laws which provide for the welfare of children generally and society as a whole operate to cause possible hardship in an individual case, that, circumstance alone will not undo the laws which society has established for its own protection and betterment.

The authority to commit the children to the Children’s Home is granted by Section 1653, G-. C. '

The determination by the court of common pleas that it was without jurisdiction to determine the plaintiff’s right to the custody of the children that had become wards of the juvenile court was correct.

Hamilton and Cushing, JJ., concur.


source: Caselaw Access Project

author: Hamilton, J.

license: Public Domain

text:
    DEFAULT IN MONTHLY PAYMENTS UNDER A CONTRACT FOR PURCHASE OF REAL ESTATE.
    Court of Appeals for Hamilton County,
    The Contractors & Builders Supply Co. v. Cresap.
    Decided, March 12, 1917.

      Contract for Sale of Beal Estate — -Default By Purchaser in Me Payments — Provision for Forfeiture and Be-Entry.

    Where a contract for sale of real estate provides for monthly payments, and in case of default that the seller should have the right to reenter the premises with forfeiture of all payments as liquidated damages, and the purchaser'makes default in payments under the contract, the seller is entitled to .possession of the premises and to have the contract delivered up and cancelled, hut the court will n • enter judgment for the amount in default and order a sale of the property.

      Charles Sawyer and S. A. Headley, for plaintiff in error.

      Heilker & Heilker and Ed. F. Alexander, for defendant in error.
   Hamilton, J.

Heard on error.

Plaintiff in error brought an action in the common pleas court in ejectment, to recover possession of certain real estate in the possession of defendant under contract of sale, and for relief by way of cancellation of the contract of record.

The defendant had caused the contract of sale to be recorded in the recorder’s office of Hamilton county, Ohio. The prayer of the petition asked for possession of said real estate and for cancellation of said contract on the record, and other relief, alleging a breach of the contract by the defendant. The defendant answered, admi+ting. the execution of the contract and that he claimed an interest in said real estate, and followed these admissions with a general denial; and by way of cross-petition claimed a waiver of the conditions of the contract by the plaintiff, claimed sundry payments were made, charged breach of contract by the plaintiff, and asked for recovery of the payments made. Plaintiff in reply made a general denial of the answer except as to the alleged payments. At the close of the evidence both sides requested an instructed verdict.

Upon the issues joined a judgment for possession of the real estate was rendered in favor of plaintiff; but cancellation of the contract on the record was refused and relief under the cross-petition was denied the defendant by the trial court. Exceptions were taken by both parties, and error is prosecuted to this court.

The contract provided for monthly payments, and in ease of default that the seller, the plaintiff below, should have the right to re-enter the premises, and that all payments made should be forfeited as liquidated damages for the breach of the contract. An examination of the record discloses that defendant admitted default in payments under the contract, but requested the trial court to enter judgment for the amount in default and to order a sale of the property, etc. This request was properly overruled, as this would be to treat the contract as a mortgage lien, and we do not think the contract will bear that construction.

Further, all the material allegations of the petition were admitted in open court by counsel for defendant. It having been shown by the undisputed evidence and admission of the defendant that he had made default in his payments, resulting in a breach of the contract, the plaintiff was entitled under the terms of the contract to the possession of the premises. The breach of the contract having been shown, the plaintiff was entitled to have the contract'delivered up and canceled. This was the holding in the case of Kirby v. Harrison, 2 Ohio St., 327, and also in the case of Hansbrough v. Peck, 5 Wall. (72 U. S.), 497. The plaintiff being entitled to have the contract delivered up and canceled, it was entitled to complete relief by having the contract canceled of record.

The judgment of the common pleas court will therefore be affirmed, except as to the refusal of the court to enter cancellation of the contract on the record, and as to that finding it will be reversed and a decree entered ordering cancellation of the contract on the record.

Judgment accordingly.

Jones, P. J. and Gorman, J.; concur.


author: By the Court.

text:
    SPECULATIVE OPTIONS IN WHEAT ARE WAGERING CONTRACTS.
    Hawke v. Roberts & Hall.

    Decided, June 1, 1920.

      Bills of Exceptions — Correction of Will he Denied, When — Option Transactions Based on Rise and Fall of Market Price of Wheat afe Wagers and Yoid — Where Both Parties Intended it to he a Wager.

    1. A motion to correct a bill of exceptions will be denied where the correction of the bill would not result in a different conclusion from the one already announced.
    2. Option transactions by which the contracting parties speculate in the rise and fall of market prices, one of the parties agreeing to pay to the other the difference between the contract price and market price at the date fixed for the execution of the agreement, are a wagering transaction and void.
    3. In order to invalidate, as a wagering contract, an agreement which on its face is legitimate, both contracting parties must have understood and intended it to be a wager.

      S. Geismar and James Fitzpatrick, for plaintiff in error.

      Moulinier, Bettman & Hunt, for defendant in error.
    Application for rehearing.

      Motion to require the Court of Appeals to certify its record in this case overruled by the Supreme Court, December 6, 1920.

   By the Court.

Heard on error.

Plaintiff in error, George S. Hawke, has made application for a rehearing therein, and has also made a motion to correct the bill of exceptions. In support of the motion affidavits are offered on the part of the plaintiff in error to the effect that the bill of exceptions does in fact contain all the evidence offered at the trial, although the certificate of the trial judge does not so show. A counter-affidavit is filed on behalf of the defendants in error to the effect that not all of the evidence is contained in the bill of exceptions.

The question, on which the original opinion rendered was based, was argued orally at the time of the hearing in this court. Counsel for plaintiff in error wrere present, but preferred to make no oral argument, and the motion and affidavit filed after the decision was rendered are the first intimation to the court that there was any error in the certificate to the bill of exceptions. The court has the power under Sec. 11572-a, G. C., to permit the correction of a bill of exceptions where the interest of justice requires it.

The court, therefore, has examined the record and briefs of counsel to determine -whether, if the record were corrected, it would avail the plaintiff in error.

The. only Avitness at the trial was the plaintiff. Pie is a laAvyer and aauis introduced to the defendants who are brokers with offices in the Mercantile Library Building, Cincinnati. After being introduced to them, he 'only faintly recollects occasionally speaking to one or the other. His transactions were by giving orders to employes to execute. Pie AA-as dealing in wheat options, which, in answer to a question 'by his counsel as to the meaning of an option account, he defines as folloAvs: “It means that I have an option to receive or buy some Avheat when the time for delivery comes around.” The transactions were in the usual form of legitimate, and ordinary dealings. If the whole transaction were nothing more than a wager, and the understanding and agreement was th'at no goods were to be delivered, but that the parties were to speculate in the rise and fall of prices and one party was to pay the other the difference between the contract price and the market price at the date fixed for executing the contract, the transaction Avould be void, even though it were under the guise of a legitimate agreement. Irwin v. Williar, 110 U. S., 499; Lester v. Buel, 49 Ohio St., 240 and Kahn v. Walton, 46 Ohio St., 195.

The plaintiff testified that it was his intention to spe.culate and gamble. In order to invalidate a contract as a AAragering one, both parties must intend that instead of delivery of the article there shall be a mere payment of the difference between the contract and the market price. A transaction which on its

face is legitimate cannot be held void as a wagering contract by showing that one party only so understood and meant it tq be. The proof must go farther and show that this understanding was mutual, that both parties so understood the transaction. Clews v. Jamieson, 182 U. S., 461, 489; Irwin v. Williar, 110 U. S., 499, 507, 508, and Otis & Hough v. Thompson, 4 O. App., 61, 63; 31 O. C. A. — .

The plaintiff in error contends that defendants are chargeable from the circumstances with knowledge of his intent. Unlike the ease of Otis & Hough v. Thompson, supra, and Lester v. Buel, supra, there is nothing here to show that plaintiff did not have adequate means to consummate the transaction which he had made, and no evidence tending to show that the defendants knew anything about his means or circumstances. The record does not.disclose that they did'otherwise than act in good faith as brokérs for plaintiff in procuring wheat options in accordance, with law.

The correction of the certificate of the bill of exceptions would not result in a different conclusion from that already announced.

The motion to correct the record will be denied and the application for a rehearing refused.

Shohl, Hamilton and Cushing, JJ., concur.


author: Jones, P. J.

text:
    VALIDITY OF WILL OF AN ILLITERATE MAN ALMOST ONE HUNDRED YEARS OLD.
    Barlion v. Connor, Exr., et al.
    Court of Appeals for Hamilton County.
    Decided, April 7, 1917.

      ypills — Capacity to Make not Necessarily Affected by Great Age — Illiteracy Not a Bar.

    One is not incapacitated to matee and execute a will merely because of advanced years or illiteracy.

      Horstman & Horstman, for plaintiff in error.

      Powell & Smiley and John C. Scaly, for defendants in error.
   Jones, P. J.

Heard on Error.

This was an action to contest the will of Francis Connor. An issue was made up and tried by a jury as required by Section 12082, General Code, resulting in a verdict sustaining the will, on which judgment was entered.

Among other considerations it is urged that the unusual age of the testator, who died at the age of almost, if not quite, one hundred years, and the fact that he was unable to sign his name, but executed his will by his mark (X), are elements tending strongly to.establish his incapacity. We are aware of no rule of law that fixes any age beyond which a man loses- testamentary capacity or which prevents an illiterate from executing a will.

A careful consideration of the record fails to show that the jury were not justified in finding testamentary capacity in the. testator and that he was under no restraint. We find no substantial error to the prejudice of plaintiff in error.

Judgment affirmed.

Gorman and Hamilton, JJ., concur.


text:
    HABEAS CORPUS CAN NOT BE SUBSTITUTED FOR A PROCEEDING IN ERROR.
    Court of Appeals for Hamilton County.
    Ex parte Pharr.
    Decided, February 19, 1920.

      Habeas Corpus — Does not Lie for Release of One Convicted in a Court Without Jurisdiction — Defendant a Minor Who Should have been Taken Before the Juvenile Court.

    1. Proceedings in babeas corpus will not be allowed to take tbe place of proceedings in error. If a judgment in a criminal case is "erroneous, but not absolutely void, it can not be collaterally attacked.
    2. Habeas corpus will not lie to secure tbe discharge of a minor wbo was indicted for a felony and convicted in tbe court of common pleas but wbo did not challenge tbe jurisdiction of the court until motion for a new trial, or prosecute error on tbe ground that be was under eighteen years of age and should have been first taken before tbe juvenile court in accordance with tbe provisions of Section 1659.

      Louis H. Capelle, prosecuting attorney, and Charles S. Bell and Charles Eldon,. assistant prosecuting attorneys, for the sheriff..

      A. C. Ericke, for petitioner.
   Shohl, P. J.

(orally). This action is in habeas corpus. It .is charged that the sheriff of Hamilton county, Ohio, unlawfully restrains Frank Pharr of his liberty.

In habeas corpus.

The sheriff has filed an answer alleging his election and qualification as sheriff, and states that he holds the petitioner by virtue of a sentence of the court of common pleas of Hlamilton county, wherein it was ordered that the petitioner be imprisoned in the Ohio State Reformatory at Mansfield, Ohio, for an indeterminate period,

This court heard evidence. It appears that the petitioner was indicted by the grand jury of Hamilton county, Ohio, for assult with intent to kill, committed in November, 1918. He was convicted after a jury trial. In the course of the trial he took the witness stand, and was asked his age, and he said that he was 17 years old. No other mention of his age was made until the motion for a new trial was filed, and the point was made there that the court was without power to try' the defendant. No error proceedings have been taken from the judgment, but the limitation of time for such proceedings has not expired.

Petitioner was never taken 'before the juvenile court, and claims that under Section 1659, General Code, the court of common pleas was without jurisdiction to try him. That section is as follows:

“'"When a minor under the age of eighteen years is arrested, such child, instead of being taken before a justice of the peace or police judge, shall be taken directly before such juvenile judge; or, if the child is taken before a justice of the peace or a judge of the police court, it shall be the duty of such justice of the peace or such judge of the police court, to transfer the ease to the judge exercising the jurisdiction herein provided. The officers having such child in charge shall take it before such judge, who shall proceed to hear and dispose of the case in the same manner as if the child had been brought before the judge in the first instance.”

Prosecuting attorneys, representing the sheriff, offered evidence that when petitioner was arrested and brought to the jail he gave his age as 18; that he was released on bail, and afterwards brought back, and at that time gave his age as 19. Petitioner’s age is disputed.

It is clear that proceedings in habeas corpus will not be allowed to take the place of error proceedings. If the judgment in the criminal case was erroneous, but not absolutely void, it is not to be collaterally attacked. In re Harry Allen, 91 Ohio St., 315.

Aside .from the question of the right of this court to determine controversies of this character, there is an important question of judicial policy. The Supreme Court of the United States has decided a number of important cases raising the question as to how far the court will go in habeas corpus proceedings. The rule is laid down that, 'barring exceptional cases, the hearing is confined to the single question of jurisdiction, and even that will not be decided in every case. Henry v. Henkel, United States Marshal, 235 U. S., 219.

At page 228 of the Henkel case, the court say:

“To establish a general rule that the courts on habeas corpus, and in advance of trial, should determine every jurisdictional question would interfere with the administration of the criminal law and afford a means by which, with the existing right of appeal, delay could be secured when the Constitution contemplates that there shall be a speedy trial, both in the interest of the public, and as a right to the defendant.
“The question has been before this court in many cases — some on original application and others on writ of error; in proceedings which began after arrest and before commitment; after commitment and before conviction; after conviction and before review. The applications were based on the ground of the insufficiency of the charge, the insufficiency of the evidence, or the unconstitutionality of the statute, stat.e or federal, on which the charge was based. In some of the cases the applicants have advanced the same arguments that are here pressed, including that of the hardship of being taheu to a distant state for trial upon an indictment alleged to be void.
“But in all these instances, and notwithstanding the variety of forms in which the question has been presented, the court, with the exceptions named, has uniformly held that the hearing on habeas corpus is not in the nature of a writ of error nor is it intended as a substitute for the functions of the trial court. Manifestly, this is true as to disputed questions of fact, and it is equally so as to disputed matters of law, whether they relate to the sufficiency of the indictment or the validity of the statute on which the charge is based. These and all other controverted matters of law and fact are for the determination of the trial court. If the objections are sustained or if the defendant is acquitted he will be discharged. If they are overruled and he is convicted, he has his right of review.”

The federal rule is enlarged upon in the following cases: Frank v. Mangum, 237 U. S., 309; Urquhart v. Brown, 205 U. S. 179; Markuson v. Boucher, 175 U. S., 184; Tinsley v. Anderson, 171 U. S., 101, 105; Baker v. Grice, 169 U. S., 284, 291; Whitten v. Tomlinson, 160 U. S., 231, and Ex parte Royall, 117 U. S., 241, 251.

“Habeas corpus proceeding is a collateral attack of a civil nature to impeach the validity of a judgment or sentence of another court in a criminal proceeding, and it should, therefore, be limited to cases in which the judgment or sentence attacked is clearly void by reason of its having been rendered without jurisdiction, or by reason of the court’s having exceeded its jurisdiction in the premises.” In re Frederich, 149 U. S., 70, 76.

If after a defendant has been convicted in the court of common pleas, this court were to entertain petitions for habeas corpus, to determine whether or not the petitioner was of legal age, it might be used as a substitute for the functions of the trial court. Such controverted matters of fact can best be determined there.

There are no exceptional circumstances shown in the Case at bar to take it out of the rule laid down by the Supreme Court.

This ease, however, raises an important question in regard to the prosecution of offenders under the age of 18 years.

Counsel for petitioner cites and relies on the case of State of Ohio v. Joiner et al., 20 N. P., (N. S.), 313, a decision of the common pleas court of Geauga county. In that case Ray Joiner, a child under 18 years of age, was indicted for murder. He was bound over to the grand jury by a justice of the peace. A plea in abatement was filed alleging him to be under 18 years of age, and this was admitted by demurrer. The court decided that by reason of the juvenile court law it was necessary that the ease be first sent to the juvenile court, and that unless the juvenile judge sent the case to the grand jury he could not properly be indicted. The court in its opinion uses such phrases as “the sound discretion of the juvenile judge is prerequisite to the vesting of jurisdiction in the common pleas court.” This, of course, was not necessary to the decision of the case, which would have been correctly decided if the matter was not jurisdictional, but involved merely the proper procedure for the procuring of an indictment.

If the defendant in the original criminal case had followed the procedure of counsel for defendant in the Joiner case, the court might have dismissed him and ordered him sent to the juvenile court.

The juvenile court law is in accordance with the trend of the best modem sociological and juristic thought, and this court would be slow to destroy or weaken the powers of that court.

It is not necessary for us to decide in this case whether under the juvenile court law a proper indictment can be had against a juvenile unless a juvenile judge in his discretion has directed it. It may- be improper for us to decide the point at all, but this court wishes, to be clearly understood in saying that it does not now decide that action by a juvenile judge is unnecesary.

The court of common pleas under the constitution and statutes has jurisdiction to hear and determine criminal cases, and if a juvenile is to be tried for such an offense as that named in the indictment a trial in the court of common pleas is undoubtedly proper. Leonard, Supt., v. Licker, 3 Ohio App., 377. 23 C.C.(N.S.), 442.

Section 1681, General Code, is as follows:

“When any information or complaint shall be filed against a delinquent child under these provisions, charging him with ]a felony, the judge may order such child to enter into a recognizance, with good and sufficient surety, in such amount as he deems reasonable, for his appearance before the court of common pleas at the next term thereof. The same proceedings shall be had thereafter upon such complaint "as now authorized by law for the indictment, trial, judgment and sentence of any other person charged with a felony.”

Whether a proper procedure was had in procuring the indictment is a different question, and one that should not be decided collaterally in this proceeding. It could be decided 'on error in the same way in which the questions were raised in the ease of Rogers v. The State, of Ohio, 87 Ohio St., 308. The court there decided that before "a prosecution in the probate court in certain cases could be instigated it must be founded upon an information. If the defendants in those eases, instead of proceeding in error, had attacked the judgments collaterally in habeas corpus, no doubt the court, like the Supreme Court of the United States, would have refused to consider the habeas corpus unless exceptional circumstances were shown, and would have relegated the litigants to ordinary procedure.

The writ will be denied.

Hamilton and Cushing, JJ., concur.


author: Lieghlev, J.

text:
    ALLEGATIONS AS TO CRIME MUSTJBRING THE OFFENSE WITHIN THE STATUTE.
    Court of Appeals for Cuyahoga County.
    Noble v. State of Ohio.
    Decided, February 11, 1918.

      Criminal Law — Allegations Which Must he Embodied in an Affidavit Charging an Offense — Failure of Physician to Use Some Prophylactic to Protect Eyes of New Born Infant from Inflammation.

    1. An affidavit charging a crime must contain allegations of sufficient facts to bring the charge within the language of the statute under which prosecution is sought.
    2. Section 1248-5, General Code, 106 O. L., 322, makes it a crime for a physician to fail to use some prophylatie against inflammation of .the eyes of an infant immediately after birth in a “maternity home,” hospital, etc., and an affidavit which charges such failure on the part of a physician in the home of a mother does not charge a crime under that section.

      McKay Poulson, for plaintiff! in error.

      Jas. L. Lind, for defendant in error.
   Lieghlev, J.

Heard on error.

The parties stood in reverse order in the court below and for convenience will be mentioned herein as their relation there was.

The defendant, Dr. H. H. Noble, was arrested upon an affidavit, which reads in part as follows:

“That on or about the 19th day of April, A. D. 1917, at the said City and County, one Dr. II. H. Noble then and there being a physician in attendance upon one Mabel Robertson in a ease of childbirth in' the home of said Mabel Robertson, did unlawfully fail to use some prophylactic against inflammation of the eyes on one ‘Baby’ Robertson, then and there being a newborn child, and did fail to make a record of the use of any such prophylactic.”

Trial was had in the court below, which resulted in a conviction and sentence, from which judgment error is prosecuted to this court to reverse the same.

Said affidavit is prediacted upon Section 1248-5 G. C. (106 O. L. 322), which, so far as pertinent here, reads as follows:

“It shall be the duty of the physicians, midwives, or other persons in attendance upon a case of childbirth in a maternity home, hospital, public or charitable institution, in every infant immediately after birth, to use some prophylactic against inflammation of the eyes of the new-born and to make record of the prophylactic used.”

An examination of the statute discloses that the crime consists in a failure to use some prophylactic against inflammation, of the eyes in the event of childbirth in a “maternity home, hospital, public or charitable institution.” The affidavit charges a failure in such use in the case of childbirth in the home of. Mabel Robertson, and is wholly silent as to whether or not this home was a maternity home, or what it was. The statute does not make a failure to use such prophylactic in any other place than those designated in the statute a crime. To sufficiently charge a crime it is absolutely essential that the affidavit in form contains allegations of sufficient facts to bring the charge clearly within the language of the statute.

We are of the opinion that the affidavit falls far short of containing the necessary requirements to charge a crime under this statute, and for insufficiency of the affidavit the judgment of conviction below is contrary to law.

Wherefore the judgment of conviction is reversed and the plaintiff in error discharged.

Grant and Dunlap, JJ., concur.


author: Cushing, J.

text:
    DEVISE TO WIFE AND HER CHILDREN.
    Court of Appeals for Clinton County.
    Clark et al v. Clark et al.
    Decided, July 26, 1920.

      Wills — Devise to Wife and “to Her Children” Construed — Devise of Beatty in Fee — Not Cut Down by Oodieil, When.

    1. Under a will devising realty to a wife “and to her children,” each takes an equal undivided portion as tenant in common. The addition of the word “to” after the word "and” is superfluous.
    2. A will which devises realty in fee by clear and unequivocal language can not be cut down by a codicil thereto in language not equally clear and certain.
    Heard, on error.

      William H. Gilbert and W. A. Haines, for plaintiffs in error.

      E. J. West and Smith, Rogers (& Smith, for defendants in error.
   Cushing, J.

The action in the court below was for the partition of two tracts of land, 50 acres and 17.23 acres. The petition states that Eugene, Elsie and Thaddius H. Vandervert were the children and heirs at law of Edith Clark, deceased, that she was the daughter of Samantha J. Clark, and that Samantha J. Clark was the daughter of Josiah McKibben; that they are each entitled to an undivided one-tenth of the land described above; that Arthur Clark and Nina Deady, and the defendants in error, Atwood Clark and Alta Jones, each own an undivided one-fifth of said real estate.

Arthur Clark in his answer denied that Edith Clark was a devisee under the will of Josiah McKibben, deceased, and denied that the plaintiffs had any title or interest in said real estate. In a cross petition he states that Josiah McKibben died testate in 1889, seized in fee of the real estate described in the petition; and that he devised the 50-aere tract to Samantha J. Clark, a daughter, in fee.

Samantha Clark died April 1, 1919, testate. It is claimed she was seized in fee of both the 50-acre tract and the 17.23racre tract. She devised all of said real estate to Arthur Clark and Nina Deady, share and share alike.

Arthur Clark in his cross petition claimed to own and be seized in fee of an undivided half of both of said tracts of land and averred that Nina Deady was the owner of the other half. In her cross petition Nina Deady adopts the allegations of the cross petition of Arthur Clark and claims the same relief sought by him.

The reply to these, pleadings claims that Samantha J. Clark had a life estate only in the premises and that she had no power or authority to dispose of the property by will or otherwise; that the title to this property vested according to the will and codicil of Josiah MeKibben. That will in so far as it relates to Samantha J. Clark is as follows: ,

“I hereby give, devise and bequeath to my daugher, Samantha J. Clark, her heirs and assigns forever, Fifty -acres of land I bought of Nathan Hunter, her said land to extend from the northwest to the southeast, the entire width of said Hunter land, and extend northwest for quantity. 'And I also give her, her heirs and assigns, for the use and benefit of the said '50 acres, a reasonable right of way through the remainder of the said Hunter lands to the College Township Road, to be provided by the owners of the remainder of said Hunter lands, 'in such place as will be of most advantage to said 50 acres and the least damage to the said remainder.”

This provision of the will gives Samantha J. Clark a fee in the 50 acres. The will was executed February 12, -1878. Pursuant to its provisions the children of Josiah MeKibben on October 14, 1889, quitclaimed to each other any interest they had in the separate tracts of land devised. Prior to that time, on June 4, 1885, Josiah MeKibben executed a codicil to his will. The part to- be considered in this litigation reads as fol-laws: - -

“I give, devise and bequeath to my beloved children John L. McKibben, Francis M. McKibben, William F. McKibben, Samantha J. Clark, and Rosilla Johnson all the rest residue and remainder of my estate real and personal not disposed of in the foregoing will to ‘be equally divided between them in manner as follows, viz — They my said beloved children shall select two or three judicious neighbors who shall divide my said lands into five equal parts — equal in number of acres and assign to each one their particular part — and my will is that my personal' property after my just debts and funeral expenses are paid shall be divided and disposed of in a similar manner as my real estate except that my beloved daughter Amanda Cast shall have an equal share of said personal property. In the division of my said lands my will is that iny said son William T. McKibben shall have as part of his share a three cornered piece of land containing about one acre adjoining the lands- he now owns and the lands of Betsy Brown and lying north of the State road. Further my will is that the lands devised and bequeathed to my beloved daughters Samantha J. Clark and Rosilla Johnson shall be to them and to their children and lastly I do nominate and appoint my beloved son William T. McKibben as executor nf this my last will and testament. ’ ’

It will be noted that the original will disposed of specific property, but did not contain a residuary clause. The first codicil refers to the will and adds ‘1 all the rest residue and remainder of my estate real and personal not disposed of in the foregoing will to be equally divided between them in mañuelas follows.” This is a disposition of the residue of the testator’s estate, whether accumulated after the making of the will, or undisposed of by him in the will. Thus far the intention of the testator is clear.

Looking to other provisions of the codicil as throwing light on the intention of the testator it will be observed that in giving William T. McKibben a three-cornered piece of land the word “land” is used. In the same paragraph he disposes of what he terms “lands.” Was that a part of the rest, residue and remainder of his estate, mentioned in the codicil, or did he intend to include with the 17.23 acres given by the codicil the 50 acres given to Samantha J. Clark by the will? The language of the codicil is: “Further my will is that the lands devised and bequeathed to my beloved daughters Samantha J. Clark and Rosilla Johnson shall be to them and to their children. ’ ’

From the use of the plural, “lands,” and the language, “to them and to their children,” it is argued that in so far as the devise to Samantha J. Clark is concerned the testator intended to include both tracts.

Considering the will and codicil together it seems clear that the use of the word “lands” by the testator referred to the land devised to Samantha J. Clark and Rosilla Johnson rather than to the two tracts given to Samantha J. Clark.

On this state of the record several questions of law are presented.

The law is that a devise by clear and unequivocal terms can not be cut down by language not equally clear and certain. Parker v. Parker, 13 Ohio St., 95; 1 Jarman, Wills (6 Am. ed.), 480 (*443); Thornhill v. Hall, 2 Clark & Finn., 22; Clark v. Hardwick Seminary (Tr.), 3 C. C., 152 (9 Circ. Dec., 87), arid Collins v. Collins, 40 Ohio St., 353.

It is our duty to determine from the will the intention of the testator.

Our view of the contention of counsel that the word “lands” refers to the 50 acres and the 17.23 acres given to Samantha J. Clark is that the limitation in the codicil was the real and personal property not disposed of by the will, and that such limitation precludes the idea that the testator in executing the codicil had it in mind to in any way change the original bequest. The word “lands,” therefore, used in the codicil, referred to the tracts therein devised to Samantha J. Clark and Rosilla Johnson, and it was not his intention to change the original bequest.

It is further argued that the use of the preposition “to,” after the conjunction “and” in the phrase “to Samantha J. Clark and to her children,” gave a different meaning to the will. The argument is carried to the extent that counsel insist that where the preposition is used it means to Samantha J. Clark and then to her children, giving her a life estate. TIad the testator intended such a limitation on the beqiiest, simple language would have expressed that intent. There is no authority authorizing a court to read into a will a word or phrase. Considering the language used, there can be no difference between the words “to her and to her children” and the words “to her and her children.” The preposition is understood after the conjunction and the addition of it in this will is superfluous.

The law is that under a gift to a wife and children they take as tenants in common. There are a number of decided cases holding that the- language under consideration gives the wife a life estate and the children the fee. In all of those cases the question was not determined from the language alone. It was only so decided when the language was considered in connection with other provisions of the will.

The word “children,” when used in the connection it is in this codicil, has a technical meaning and imports a title by purchase. (Newill v. Newill, 7 Chancery App., 253.) There are no provisions or references in the will indicating that the testator intended other than that the ordinary legal meaning of children should have its full force and effect, nor are there any provisions in the will from which a conclusion could be drawn that Samantha J. Clark was to have a life estate only in all the property, with remainder to her children.

The' conclusion is that the will gave to Samantha J. Clark the fee in the 50-acre tract by clear and concise language, and that if the testator intended to cut down the estate granted, the language used is not clear and unequivocal, and, therefore, the claim that Samantha J. Clark took but a life interest in the 50-acre tract can not be maintained; that the intention of the testator is ascertainable from the will and codicil; that the use of the language, “to Samantha J. Clark and to her children,” gave to each an undivided one-sixth portion of the tract disposed of by the codicil; and that Samantha J. Clark had the fee to the 50-acre tract and a fee in an equal undivided share of the 17.23-acre tract.

The judgment of the court below will be reversed and the cause remanded with instructions to enter a decree according to this opinion.

Shohl and Hamilton, JJ., concur.


text:
    SERVICE OF SUMMONS ON FOREIGN CORPORATIONS.
    Judge Richards of the Sixth Judicial District sitting in place of Judge Shohl by Designation.
    Court of Appeals for Hamilton County.
    Hurd v. John B. Ransom & Co.
    Decided, June 28, 1920.

      Summons — Service of On a Foreign Corporation having no Agent in the State — Must he Made upon the Managing Agent — Not Good where Made on the President while Temporarily in the State — Error Lies to Sustaining of Motion to Quash Service, When.

    1. Service of summons upon a foreign corporation whose place of business is outside of the state, having no agents in Ohio and transacting its business in the different states by mail, is controlled exclusively by Section 11290, General Code.
    2. Service upon such foreign corporation to be good must be made upon the managing agent, and when the sheriff's return shows service only upon the president, it not appearing what the duties of the president are, nor that he is managing agent, it is incumbent upon the plaintiff to prove that such president is the managing agent.
    3. Where the president of such foreign corporation is in Ohio for the sole purpose of attending a national convention, his presence is merely temporary and incidental, and he is not .doing business within the meaning of the law to afford a sufficient basis for service of summons.
    4. Error proceedings may be prosecuted from a judgment sustaining a motion to quash service of summons, on the ground that a foreign corporation is not amenable to suit in Ohio. Towne v. National Machinery Co., 29 O.C.A., 375, distinguished.

      Bettinger, Schmitt (& Kreis, for plaintiff in error.

      Frank F. Dinsmore, for defendant in error.
   Hamilton, J.

Heard on error.,

Error is predicated here upon the granting, of the motion of the defendant below to quash and set aside, the service of summons upon the defendant. Defendant appeared for the purposes of the motion only.

The defendant below was a Tennessee corporation, whose place of business was in Nashville. It had no agents residing in. Ohio. It transacted its business in the different states in the Union by mail. It was engaged in the lumber business. All orders taken were subject to the approval of the home office in Nashville, Tennessee.

The suit instituted below was upon an alleged breach of contract arising out of an order taken for lumber by the Chicago agent of the defendant company while casually passing through Cincinnati, the place of business of the plaintiff.

At the time of the attempted service of summons in the action, Arthur B. Ransom, the president of the defendant company, was in Cincinnati in attendance upon the National Hardwood Association meeting, which was the annual meeting of the Hardwood Association for a general review of the hardwood business. These facts appear in the deposition of Arthur B. Ransom, attached to the record. The return of the sheriff is as follows:

“Cincinnati, February 6, 1918.

“Served the within named defendant, John B. Ransom & Company, a corporation existing and doing business in Tennessee, by delivering a true copy of this writ, with all endorse-, ments thereon, personally to Arthur B. Ransom, president thereof.

1 ‘ George F. Schott, Sheriff of

“Hamilton County, Ohio,

“By Fred Sperber, Deputy.”

Was this service good?

The court below granted the motion to quash the service on the ground that the defendant company was not doing business in the State of Ohio in a way that would bring it within the jurisdiction of the court, but held that if the defendant was amenable to suit, the president was the proper person to serve, under Section 11288, G. C., and, in support of that position, cited the ease of Lively v. Picton, 218 Fed., 401, 406. While we agree with the court below that under the facts as disclosed by the deposition of Arthur B. Ransom, the president, that the president’s presence in Ohio was merely temporary and incidental, and did not constitute doing business, within the meaning of the law, to afford a sufficient basis for service of summons here, we do not rest our decision wholly on that ground. We think service of summons on a foreign corporation, such as the defendant here, is controlled exclusively by Section 11290, G. C., which provides:

"When the defendánt is a. foreign .corporation, having a managing agent in this state, the service may be upon such agent.”

Service of summons under Section 11288, G. C., is limited to service upon domestic corporations and such foreign corporations as are therein described. Baltimore & O. Ry. v. Wheeling, P. & C. Transportation Co., 32 Ohio St., 116, 135. The defendant corporation is not one of the foreign corporations therein described. While in the case of Lively v. Picton, supra, relied upon by the trial judge to bring the case within the purview of Section 11288, G. C. is found an observation by the federal court that Section 11288 provided a permissive mode of service upon foreign corporations, that court did not rest, its decision upon that point, as in that ease the defendant company entered its appearance by demurrer to' the plaintiff’s petition, and, further, it appeared that the by-laws of the company expressly gave the president general management of the business of the company.

In the ease of Beach v. Kerr Turbine Co., 243 Fed., 706, the court held that service of process in Ohio on a foreign corporation is controlled by Section 11290, G. C., of Ohio, and cites with approval the case of Goode v. Druggists’ Association, 16 Dec., 586, wherein the trial court held that the only mode of obtaining service of summons on a foreign corporation was provided in Section 11290. The ease of McCullough v. United Grocers’ Corp., 247 Fed., 880, was to the same effect.

Under this view of the law service to be good upon a foreign corporation, such as the one in this case, must be made upon the managing agent. The sheriff’s return shows only service upon the president. -To show proper service, in the return of the sheriff, it must appear that the service was made on the managing agent. It can not be said that the president is ipso facto the managing agent of a corporation. It does not appear what the duties of the president were. No by-laws or record of any kind are in the record to show what the duties of the president were as appeared in the case of Lively v. Picton, supra. While the return of the sheriff might have been corrected to show that the president was the managing agent, it not so appearing in the return, it was incumbent upon the plaintiff to prove the fact that he was such managing agent. That the return must so show is supported by the eases of State v. King Bridge Co., 7 C. C. (N. S.), 557; Nieswonger v. Aetna Ins. Co., Dayton Term Rep., 154, and Fleckmyer Wheel Co. v. Commercial Wheel Co., 7 N. P., 613.

The point is made by the defendant in error that the judgment sustaining the motion 'to quash the service is not a final order from which error could be prosecuted. Since the point is sustained that the defendant was not amenable to suit in Ohio, under the facts in the case, the judgment was final, and the proceeding in error was proper. State v. Pennsylvania Steel Co., 123 Md., 212 (91 Atl., 136); Tatum v. Geist, 40 Wash., 575 (82 Pac., 902), and Cowden v. Stevenson, Wright, 116.

The case at bar is distinguishable from Towne v. National Machinery Co., 29 O. C. A., 375, for that case involved an Ohio corporation having its situs and principal place of business within the state.

The judgment will be affirmed.

Cushing and Richards) JJ., concur.


text:
    INVALID STATUTORY REQUIREMENT OF SAFE SCAFFOLDING, ETC., FOR THE USE OF EMPLOYEES.
    Court of Appeals for Cuyahoga County.
    Aluminum Castings C. v. Patten.

    Decided July 1, 1920.

      Master and Servant — Provision of Section 12593 Penalizing the Furnishing of Unsafe Scaffolding, etc. — Not a Lawful Requirement Within the Meaning of the Workmen’s Compensation Act — Furnishing of Safe Scaffolding and Safe Place to Work Analogous.

    1. Section 12593; General Code, providing for liability of an employer for furnishing to employees improper ladders, scaffolding, etc., is not a “lawful requirement” within the meaning of Section 29 of the Workmen’s Compensation Act (Section 1465-76, General Code), which imposes upon the employer liability for injuries due to his ' failure to comply with “lawful requirements” for the protection and safety of his employees.
    2. An employer’s duty to protect the lives and safety of his employees, in order to come within the meaning of the term “lawful requirement” as used in Section 1365-76,- General Code, must arise by-reason of either a statute, ordinance, or order of the industrial commission requiring him to adopt specific safety devices or safeguards or to do a specific act. A general duty not to be negligent is not within the meaning of the term.

      M. B. & H. H. Johnson and. J. T. Scott, for plaintiff in error.

      Payer, Winch, Minshall & líatñch, for defendant in error.

      John G. Price, Atty. Gen., and B. B. Zurmehly, special counsel, amici curiae.

      Motion to require the Court-of Appeals to certify its record in this case overruled 'by the Supreme Court, November 16, 1920.

   Shohl, P. J.

Heard on error.

Albert F. Patten was employed by tbe Aluminum Castings Go. in September, 1918. He was engaged in millwright work. In November the millwright crew started painting the inside walls and ceiling of the company’s plant and was so engaged on January 11, 1919, when the scaffold on which he was working gave way and he fell and was injured. The scaffold was constructed with, planks and four ladders. A plank was laid upon the rounds of two ladders, constituting the stringer, upon which other planks were laid leading to a similar stringer at the other end. The construction was admitted to be proper and the mishap was due to some defect not discovered by visual inspection.

Patten brought an action against the Aluminum Castings Co. in the court of common pleas of Cuyahoga county, and recovered a judgment. The company prosecutes error to this court..

While the plaintiff in error contends that there was no evidence tending to show negligence on its part, an important issue of law was raised, the disposition of which renders unnecessary the consideration of the evidence in respect to negligence.

It stands admitted that the defendant had fully complied with the provisions of the workmen’s compensation act. Under Section 1465-70, G. C., the company is not liable to respond in damages for injury to plaintiff except as provided in the act. The employer is not liable unless the plaintiff’s injury arises from the wilful act of the defendant or its officers or agents, or from tire failure of the employer, its officers or agents, to comply with a lawful requirement for the protection of the lives and safety of employees. Mere negligence will not support an action. See Section 1465-76, G. C.

There is no claim of wilful act on the part of the defendant, and Patten’s claim to relief is based solely upon the contention that the defendant had failed to comply with a lawful requirement for the protection of the lives and safety of employees, in that it violated Section 12593, G. Q.

Section 12593 is as follows:

“Whoever, employing or directing another to do or perform labor in erecting, repairing, altering or painting a house, 'building or other structure, knowingly or negligently furnishes, erects or causes to be furnished for erection for and in the performance of said labor unsuitable"or"imprbpér scaffolding,' hoists, stays, ladders or other mechanical contrivances which will not give proper protection to the life and limb of a person so employed or engaged, shall be fined not more than five hundred dollars or imprisoned not more than three months, or both.”

To what extent then can it be said that the provisions of the section last quoted constitute a lawful requirement within the meaning of Section 1465-76. G. C. ?

In the case of American Woodenware Mfg. Co. v. Scholing, 96 Ohio St., 305, an employee was injured by reason of a ear of lumber falling on him. He brought suit alleging that his injuries were caused by the negligence of the defendant in failing to comply with the lawful requirement -for the protection, of employees set forth in Sections 15 and 16 of the industrial commission act. (Sections 871-15 and 871-16, G. C.)

Those sections are as follows:

Section 871-15:

“Every employer shall furnish employment which shall be safe for the employees therein, and shall furnish a place of employment which shall be safe for the employees therein, and for frequenters thereof, and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes, follow and obey orders and prescribe hours of labor reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees and frequenters.”

Section 871-16:

“No employer shall require, permit or suffer any employee to go or be in any employment or place of employment which is not safe, and no such employer shall fail to furnish, provide and use safety devices and safeguards, or fail to obey and follow orders or to adopt and use methods and processes reasonably adequate to render such employment and place of employment safe, and no employer shall fail or neglect to do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees or frequenters; and no such employer or other person shall hereafter construct or occupy or maintain any place of employment that is not safe.”

The Supreme Court held that the term “lawful requirement” as used in the Constitution and in Section 29 of the Workmen’s Compensation Act does not include a general course of conduct, or those general duties and obligations of care and caution which rest upon employers and employees, and all other members of the community, for the protection of life, health and safety. The failure to use care to furnish a safe place to work created no liability.

’The court in discussing the constitutional provision says at page 313:

“If the failure to comply ‘with a lawful requirement’ includes an act which was actionable negligence simply because of the rules' of common law, then the portion of the section which authorizes the taking away of any or all rights of action or defenses of employees and employers would be practically meaningless and inoperative. We should be holding that embodied in the same section was power to take away all rights of actions or defenses of employees and employers, and also a practical denial of power to take away any right of action.”

The decision of the Supreme Court establishes that when there is merely a general duty of care imposed on the employer by law, that is to say a 'general duty not to be negligent, such duty is not a “requirement” for the protection of lives and safety of employees within the meaning of Section 1465-76. But when either by statute or by ordinance, or by order of the Industrial Commission, an employer is required to adopt specific safety devices or safeguards, or’to do a specified act, and the employer fails to comply with such statute, ordinance or order, then the employer has failed to comply with a “lawful requirement,” and is guilty of negligence per se, and is liable to the injured workman under Section 1465-76 for injuries caused thereby.

The duty with respect to furnishing a safe scaffold is analogous to the duty with regard to furnishing a safe place to work passed on in the Woodenware case. In neither case is a specific obligation to do a particular act laid on the employer. There is only a general duty to use care. Indeed, in the ease at bar there is no affirmative requirement whatsoever, but only a criminal penalty for failure to perform a common-law duty in respect to scaffolds. . The section in question imposes no penalty where there is no evidence of the employer’s negligence. Noble v. Crane & Co., 160 Fed., 55.

1 ‘ The avowed purpose of the compensation laws is to do away with the litigation between employers and employees for injuries arising in the course of the employment. As the Supreme Court said in the Woodenware case at page 322:
“The employer would, in such case, be put upon his defense exactly as if the old common-law rule and the antiquated and unsatisfactory methods of dealing with accidents in industrial pursuits still prevailed, and as if no law had been passed and no effort made by the state to respond to the sentiment of the people, created by long and harsh experiences, that a more humane and satisfactory system should be erected.”

The rule applied by the court of common pleas would make -possible and probable the return to the old order so far as the building trades were concerned, with all of its concomitant evils. It would tend to deprive the employer of the substantial protection afforded by the compensation act, and would likewise tend to- promote litigation of the type which the best modern economic thought has relegated to the discard. If the work' men's compensation act and the industrial system thereby created will not afford protection to the employer,- the industrial commission will not have accomplished its purpose in taking the place of private insurance companies, which it has supplanted. In view of the often repeated admonition of the- Supreme Glourt not to regard its unreported decisions as authoritative precedents, we do not deem ourselves bound by the ease of Cleveland, v. McLanahan (not reported), in-which case on January 21, 1919, the Supreme Court overruled a motion for order to the court of appeals of this county to certify its record.

We are of opinion that the facts shown here do not make out a case of failure to comply with a lawful requirement within the meaning of the act, and that the plaintiff is barred by the compensation act from prosecuting this action.

In view of the foregoing it is not necessary to discuss the contentions of the parties as to whether there was negligence of the defendant, or contributory negligence and assumed risk on the part of the plaintiff.

The judgment will be reversed and judgment will be rendered in favor of the plaintiff in- error.

Hamilton and Cushing, JJ., concur.


text:
    REGULATION OF CONSTRUCTION AND REPAIR OF BUILDINGS.
    Court of Appeals for Hamilton County.
    Maxedon v. Rendigs, Commissioner of Buildings.*
    Decided, May 28, 1917.

      Municipal Corporations — Arbitrary Nature of the Power Conferred by Section 3636 Relating to Buildings, Their Sanitation, Repair. Alteration, etc. — Owner Unavoidably Delayed in Making Building Safe and Secure — Oioner Given Further Time to Comply with Orders of the Building Commissioner,
    1. The exercise of the power conferred upon municipalities hy Section 3636, General Code, to regulate the sanitary condition of buildings and to provide for their inspection, repair and destruction, if necessary, is arbitrary in its nature; but it arises from necessity, and must - always be distinctly for the public welfare, and with full recognition of the inviolateness of private property, as guaranteed in the Bill of Rights (Section 19, Article I of the Constitution); and the property must constitute a nuisance and the peril be imminent to warrant such summary action as its destruction.
    2. Where the owner of a building, so situated as not to constitute a fire hazard to adjoining property, is delayed in making needed repairs in accordance with a building permit issued by á municipality, because of the failure of others to perform contracts with him for parts of such work and because of the difficulty in bringing in materials, and he makes such building safe for his tenants during such repairs, an injunction will lie to prevent the destruction of such building, and the owner given a reasonable time to make such repairs.
    3. In such case the court will not decide whether as an economic proposition it is better for the owner to tear down the building and úse the materials in replacing it, or to make repairs

      Thomas V. Maxedon, for plaintiff.

      Charles A. Groom, city solicitor, and Dennis J. Ryan, assistant solicitor, for defendant.
   By the Court.

Heard, on appeal.

Authority is conferred by Section 3636, General Code, upon municipal corporations to regulate the erection, repair and alteration of buildings, to regulate their sanitary condition and provide for their inspection, and for the repair and destruction, if necessary, of insecure, unsafe and dangerous buildings.

The city of Cincinnati acting under the authority thus granted has in its code of ordinances provided in Section 487 for the inspection and condemnation of unsafe buildings. The power thus conferred is a necessary exercise of the ¡police power of the state, under the maxim salus populi suprema lex, which authorizes and commands destruction of private property to save human life, to protect public health, to. preserve property and to safeguard the public safety. But the property must constitute a nuisance, and the peril be. imminent, to warrant such summary action as its destruction. The exercise of such power in its nature must be arbitrary, but it arises from necessity and must always be distinctly for the public welfare and with full recognition of the inviolateness of private property as guaranteed in the Bill of Rights (Section .19, Article I of the Constitution).

In this case the plaintiff, Thomas Y. Maxedon, seeks to enjoin the building commissioner from demolishing and taking down a frame dwelling known as No. 4.352 Badgeley road, and from interfering with its alteration and repair under a building permit which has already been issued by the commissioner for that purpose, alleging that the order to destroy said building is an abuse of discretion on the part of the defendant, and an unnecessary invasion of plaintiff’s property rights.

It is conceded that such permit was duly, issued, but it is claimed that plaintiff has been so slow and dilatory in proceeding with the work that there is no. reasonable expectation that he will complete the work and protect the lives and health of his tenants and others going into said building, and that the delay is constantly augmenting the risk and adding to the danger.

The evidence shows without dispute that the stairway and the annex, or that part of the building in which the stairway is located, are in such an unsafe condition that they should be at once rebuilt or repaired so as to be entirely safe. This is part of the work contemplated by the owner and covered by the 'permit already issued. It appears that the foundation and sills of the main part of the structure are solid and sufficient for safety, but repairs are needed for the windows, weatherboarding, roof and other parts of the building, which we understand are covered by said building permit, as well as new doors and windows for the basement, and drainage and toilet facilities.

The court will not undertake to decide, as an economic proposition, whether it would be more desirable, as the building commissioner suggests, for the owner-to take the present structure down to the foundation and use the material for the erection of a one-story structure upon the foundation, or for the owner to repair and rebuild the present two-story structure according to his present plans. That is a matter in which the owner of the property is entitled to act upon his own choice and judgment, so long as he pays due regards to the rights of the public to secure proper safety and sanitary conditions. Even though it might be entirely unwise from a financial view for the owner to undertake to preserve so much of his building as is admitted to be safe, he is acting within his rights in so doing, so long as he does not imperil the lives or property of others by maintaining the structure so rebuilt:

The house in question is set back from the street and is located so far from the nearest building that no claim is made of any danger to other buildings as a fire hazard. The only warrant for public interference with the plans and operations of the owner is to secure public safety and health of those occupying the property. Desirable as it might be from an aesthetic point of view to have public control of private building, the law does not permit an invasion of private rights on such grounds.

The delay of plaintiff in completing his rebuilding operations under his permit seems almost sufficient to exhaust the patience of the building department, and to provoke drastic measures to bring matters to a culmination. But it must be remembered that the delay has operated to the loss of the owner, who. attempts to justify himself by undertaking to show the failure of others to perform contracts made with him for sundry parts of the work. He also shows difficulty in bringing in materials because of a destroyed bridge, and the condition of the unimproved street on which his property fronts.

Under all the circumstances of the case the court finds that the plaintiff should be given an opportunity to repair and rebuild his house in accordance with his permit, during the present building season, on condition that he proceed without delay to reconstruct and repair the stairway to the satisfaction of the building commissioner, making same safe for his tenants while the work progresses; or, that he have said building vacated until 'such stairway is so improved; and that all .said work under such permit be completed by November 1, 1917'; and that further proceedings under the notice of the building commissioner be restrained until further order of the court; and a decree may be taken accordingly.

Decree accordingly.


text:
    BREACH OF TITLE FOR GOODS SOLD.
    Court of Appeals for Cuyahoga County.
    Kwiatkowski v. Hoislbauer et al.
    Decided, June 21, 1920.

      Sales — Breach of Warranty of Title — Demand of Superior Title-holder not a Condition Precedent to Action by the Buyer for Recision for Breach of Warranty.

    Immediately upon breach of warranty of title in the sale of goods the buyer may, under Section 8449 General Code, rescind the sale, offer to return the goods to the seller, and recover the price' paid,, without showing any eyiction or demand for possession of the goods made by the person having superior title thereto.

      David & Heald and Phil. Samplifier, for plaintiff in error.

      Snyder, Henry, Thomsen, Ford & Seagrave, for defendants in erorr.
   Shohl, P. J.

Heard on error.

The plaintiff in error, Clarence J. Kwiatkowski, purchased a moving picture show, and, after operating for a short period, sold it to defendants in error, Joseph Hoislbauer and R. William Kretschmer. At the same time, for a stated consideration of ten dollars, he assigned to the defendants in error the five-year lease of the theater building, wherein the chattels were located. The bill of sale purported to transfer the seats which were in the theater. It was in the exact language of the bill of sale whereby he had purchased the property in question previously, and so far as the evidence shows, Kwiatkowski believed in good faith that he was the owner of the seats as well as the other property. The buyers gave him cash and notes for the material to the controversy here. After an adjustment of the purchase price, not material to the controversy here, the seller was later paid in full. He received in all a lot valued at $300 and $2,187.73 in cash. After the buyers were in possession a short time the owner of the building told them that the seats in the theatre belonged to him. Thereupon the buyers attempted to rescind, tendered back a deed for all the property transferred to them, and brought an action to recover the purchase price paid. At the conclusion of all the evidence both parties moved the court for a directed verdict. They then thereby clothed the .court with the functions of a jury, and had the court passed upon the motions and rendered judgment the decision so rendered would not be set aside by a reviewing court unless clearly against the weight of the evidence. First Nat’l Bank v. Hayes, 64 Ohio St. 100 ; Strangward v. American Brass Bedstead Co., 82 Ohio St. 121, and Perkins v. Putnam Co. Comrs., 88 Ohio St. 495.

The court submitted the ease to the jury. Had he rendered a correct judgment without submitting the case to the jury, no complaint could be made. So far as the substantial rights of the parties are concerned, they were not prejudiced by the fact that the court learned the opinion of the jury before rendering his judgment, if his determination was correct, At the trial the buyers, who were the plaintiffs, offered the evidence of one Peter Witt. His testimony showed that at the time of the sale to the plaintiffs the seats belonged to the Forest City Investment Company, of which he was an officer. His credibility is not questioned nor was there any evidence given to contradict his testimony.

The plaintiffs went to trial apparently under the mistaken impression that they were required to establish fraud in order to make out a case. Under Sec. 8393, G. C., there is an implied warranty on the part of the seller that he has a right to sell the goods, and there is a further implied warranty that, the buyer should have and enjoy quiet possession of the goods as against any lawful claims existing at the time of the sale. On principle, therefore, it appears that when defendant sold the goods, there was an immediate breach of the implied warranty of right to sell. If there was a breach of warranty by the seller, the sales act, Section 8449, G. C., authorizes the buyer at his election to rescind the sale, offer to return the goods to the seller and recover any part of the price which has been paid. The seats liad an approximate value of $900 and constituted a substantial part of the goods sold.

The principal contention made on behalf of plaintiff in error is that the evidence fails to show any eviction or demand for possession made by the superior title, and that such demand or eviction constitutes a condition precedent to the right to sue. Under the circumstances of this case the owner of the seats would not make its claim to them until the expiration of the five-year lease, as the buyers were assignees of the lease and the seats were part -of the premises for which they were paying rent. If the buyers were obliged to await the expiration of the five-year period, their theoretical right to get their money back from the seller might lose its value.

Must there be a claim or eviction before the buyer can get redress? As to sales of goods the authorities at common law are in some conflict as to this question. The effect of the provision of the sales act, Section 8449, G. C., would seem to give the buyer of chattels the right to proceed immediately, though Ms possession -had not been disturbed. (See Williston, Sales, Sec. 221.) By pursuing this course, the buyer assumes the burden of establishing the infirmity of the seller’s title. Jordan v. Van Duzee, 139 Minn., 103, 107 (165 N. W., 877).

Under what are practically the undisputed facts the record presents a case of breach of the implied warranty of title. The 'defendants in error have prosecuted the right to rescind in accordance with the statute, which was but declaratory of the Ohio law, Byers v. Chapin, 28 Ohio St., 300, and are entitled to á judgment. The irregularities in the procedure have not prevented the accomplishment of substantial justice.

The judgment will be affirmed .

Hamilton and Cushing, JJ., concur.


text:
    LEASE WITH PRIVILEGE OF PURCHASE NOT A BAR . TO PARTITION.
    Court of Appeals for Hamilton County.
    Crowe et al v. Crowe et al.
    Decided, June 30, 1919.

      Partitiion — Renewable Outstanding Lease with Privilege of Purchase not an Obstacle to.

    The existence of a lease for five years, renewable for five years, and granting an option to the lessee to purchase the land, is no obstacle to partition.

      M. F. Roebling and J. T. Rhyno, for plaintiffs in error.

      Robert P. Hargitt, for defendants in error.
   Shohl, P. J.

Heard on error.

Defendants in error were plaintiffs below and brought an action to partition certain property which had been owned by their father, John T. Crowe. It appears from the amended petition that on December 2, 1912, John T Crowe executed a lease to defendant Michael Crowe for five years, with the privilege of purchase for $12,000 at any time within the life of said lease, and the lease contained a provision for renewal for five ¡years more on the same terms and with the same privilege of purchase. -James Crowe, one of the heirs of the decedent, demurred to the amended petition, contending that the outstanding lease with, option to purchase prevented partition.

The court below overruled the demurrer, and the defendants not desiring to plead further a judgment was rendered, to which they now prosecute error. ' . ,

To enable a party to maintain an action for partition he must have an estate in possession, on. by virtue of which he is entitled to enjoy the rents or the possession as one of the co-tenants thereof. Eberle v. Gaier, 89 Ohio St., 118, and Tabler v. Wiseman, 2 Ohio St., 207.

The existence of an ordinary lease for" years, under which the tenant is in possession, paying rent to the owners of the fee, is no obstacle to partition among such owners. Werner v. Glass, 16 W. L. B., 354 (9 Dec. Re., 686); Willard v. Willard, 145 U. S., 116, and 21 Am. & Eng. Ency. Law (2 ed.), 1153. See also 21 Halsbury’s Laws of England, 841.

The possession of a tenant is regarded as the possession of the landlord, as shown in the foregoing authorities. Plaintiffs in error maintain that by reason'of. the existence of the option to purchase the title is defeasible, and may be defeated by the lessee exercising the option. Their contention is based upon the opinion .of the court of appeals for the fourth district in Fleming v. Minx, 25 C. C. (N. S.), 198; 4 Ohio App., 406.

The defeasibility of title does not disable plaintiffs from prosecuting partition. The existence of a power of sale outstanding in trustees ivhich might likewise destroy the estate of the lessors does not bar partition. (Boyd v. Allen, 24 Ch. D. 622.) The owner of a base fee is entitled to partition. (Askins v. Merritt, 254 Ill., 92 [98 N. E., 256], and Pitzer v. Morrison, 272 Ill., 291 [111 N. E., 1017]). The full report of the-case of Fleming v. Minx, supra, shows that the so-called tenant was in fact a mortgagor in possession, though nominally she had only a lease with the right to purchase.

The mere existence of the option is insufficient to take the case out of the rule established 'by 'the foregoing authorities.

The judgment will be affirmed.

Hamilton and Cushing, JJ., concur.


text:
    DISTRIBUTION OF WIFE’S INHERITANCE NOT A BASIS FOR A CONTINUING TRUST.
    Court of Appeals for Hamilton County.
    McCord v. Central Trust & Safe Deposit Co.

    Decided, March 29, 1920.

      Trusts — Inheritance of Insane Wife Distributed ,by Husband — Not a Basis for Declaration of a Continuing and Subsisting Trust — Action to Collect Debts Due Decedent Can Not be Maintained by Next of Kin.

    1. A petition, against the executor of plaintiff’s father, alleging that plaintiff’s mother had inherited an estate and being of unsound mind the money was given to the father, and that after the death of the mother the father distributed the inheritance among his children, refusing, however to give to plaintiff his full share of such inheritance, does not state facts which make out a case of continuing or subsisting trust. If any right of action ever accrued to the plaintiff it arose at the mother’s death, which was more than six years prior to the commencement of this suit, and is barred by the ' statute of limitations..'
    2. The next of kin can not, in the absence of special circumstances, maintain an action in their own names to recover unadministered personal property of the decedent or collect debts or other choses in action due the decedent.

      T. V. Maxedon, for plaintiff in error.

      Robertson, Buchwalter & Oppenheimer, for defendant in error.

      Motion for an order directing the Court of Appeals to certify its record in this case overruled by the Supreme Court, June 28, 1920.

   Shohl, P. J.

-"On January, 30, 1919, Frank L. McCord brought suit in the court of common pleas against the Central Trust & Safe Deposit Company, as executor of the estate of James -W. McCord, his father. The court sustained a demurrer to the petition and to an amended petition. Plaintiff then filed a second amended petition, to which a demurrer was sustained, and, upon plaintiff’s inability to plead further, judgment was rendered in favor of the defendant..

The second amended petition alleges that on or about November 27, 1907, the wife of James W. McCord inherited an estate of about $1,500 from her sister; that at that time she was of unsound mind, and on March 10, 1908, the executrix of her sister knowing of her mental condition and that she was not capable of properly looking after and caring for her interest in the estate sent $1,000 of the money to her husband, James W. McCord; that on June 27, 1908, plaintiff’s mother died intestate; and that, thereafter, James W. McCord, without causing administration to be had upon the estate of his wife, acted as administrator and received as such from the estate of his deceased wife’s sister the balance of the inheritance due his wife, namely $513, and distributed said inheritance among his children, refusing, however, to give to the plaintiff his full share of such inheritance, and never did. Plaintiff exhibits an account which is made a part of the petition, showing the amount received by him, and claims a balance due, amounting, with interest from February 1, 1911, to the sum of $533.20, for which he prays for an accounting and for judgment and for all proper relief. The court of common pleas held on demurrer that the petition shows on its face that the action was not brought within the time limited for the bringing of such actions.

Plaintiff in error urges that the facts make out a ease of continuing and subsisting trust, and that, therefore, under Section 11236, G-. C., the statute of limitations is not' a bar. To come within the provisions of that section the case must fall within a class of technical or direct trusts, in which there is no remedy at law to which a limitation has been fixed.

The facts alleged do not show an. agreement to hold as trustee, either express or' implied, nor do they make out a trust which results from express or implied agreement. It is rather of the character of a constructive trust. 1 Perry, Trusts (6 ed.), Sec. 166. There is no averment of any agreement or promise whatsoever on the part of James "W. McCord, nor would the allegations of conclusions of law take the place of averments of fact. Pittsburgh, C. & St. L. Ry. v. Moore, 33 Ohio St., 384. The situation is analogous to that presented by the case of Douglas v. Corry, 46 Ohio St., 349. In that case an attorney had collected money which belonged to a client, which he was under the duty of turning over to her, but which he did not do. It was held that this did not create a continuing and subsisting trust and that the statute of limitations ran from the time, the money was received and should have been turned over. No equitable relief was required. The proper remedy would have been a plain action at law for money had and received. See also McCauley v. German Natl. Bank, 17 N. P. (N. S.), 305, and cases therein cited.

Plaintiff’s mother by reason of her disability was unable to bring suit, but if any right ever accrued to plaintiff it arose at her death, 'which was more than six years prior to the 30th day of January, 1919. The court of common pleas was correct in deciding that the petition showed on its face that the claim was barred by the statute of limitations.

But there is a further consideration. The petition shows that the money belonged not to the plaintiff, but to his mother. In the absence of special circumstances, the next of kin can not maintain actions in their own name to recover unadministered personal estate of the decedent or’ collect debts or othef choses . of action due him. Such actions can be maintained only by the personal representative of the deceased. McBride v. Vance, 73 Ohio St., 258, and Davis v. Corwine, 25 Ohio St., 668. See note to Buchanan v. Buchanan, 22 L. R. A. (N. S.), 454.

It is unnecessary to advert to the fact that if the property of Mrs. McCord were to be administered it would be subject to the payment of her debts and to the rights of her widower under the statute.

The judgment will be affirmed.’

Hamilton and Cushing, JJ., concur.


author: Washburn, J.

text:
    DISCRETIONARY POWER TO VACATE OR MODIFY JUDGMENT.
    Court of Appeals for Summit County.
    A. A. Wybel v. J. M. Sheaffer.
    Decided, April 30, 1919.

      Judgments — Inherent Poioer in a Court to Vacate or Modify Its Judgments During Term — Purpose of Affidavit with Reference to Military Service. ' .
    1. The power of a court to vacate or modify its judgments during term is inherent and plenary, and is not controlled by Section 11631, General Code, which relates to vacating and modifying judgments after term.
    2. A court is not limited to the grounds set forth in Section 11631, but on' good cause shown may act upon any other ground which in the exercise of its sound discretion it deems sufficient, and the exercise ’. of such discretion will not be controlled by a reviewing court in . the absence of proof of a clear abuse of discretion.
    3. The federal statute requiring an affidavit that the defendant is not , in the military service before judgment may be'entered, is for'the protection of those in such service, and the failure to file such an affidavit ismot sufficient ground to set aside a default judgment against a defendant who never was and never claimed to be in the military service, but who appeared in court, was represented by counsel, and failed to raise such issue until after judgment was entered.

      Jonathan 'Taylor, for plaintiff in error.

      Rockwell & Grant, for defendant in error.
   Washburn, J.

In this action J. Milton Sheaffer, defendant in error, sued A. A. Wybel, plaintiff in error, on several promissory notes.

According to the record, summons was duly served on Weybel on July 27, 1918.

Default judgment was entered on September 3', 1918.'

On September 5, 1918, añ oral application was made to the ¿Curt' by tbe attorney'for "Wybel to'vacate said judgnienL:

A hearing was had on said motion; on September 9th, it was overruled, to which ruling an exception was taken, and the matter is now before this court on a petition in error.

A court has control of its judgments and decrees up to the end of the term at which they are entered. It may, at its discretion for good cause shown, set aside and vacate its judgments or modify them. Huntington & McIntyre v. Finch & Co., 3 Ohio St., 445; Knox County Bank v. Doty, 9 Ohio St., 505; Niles v. Parks, 49 Ohio St., 370; Marguno and Tomfocaro Co. v. Clymonts, 16 C. C. 237, 10 Circ. Dec., 427; Seelbach v. Craft, 21 C. C. (N. S.), 158.

The discretion vested in a court to vacate or modify its judgments during the term is a legal discretion and can not be exercised in an arbitrary manner, or at the mere desire of the court; a justifiable cause for such action must exist. French Wax Figure Co. v. Jupp Baxter Co., 21 C. C., 761,12 Circ. Dec., 76.

This power of the court is independent of Sec. 11631, General Code, which governs where it. is sought to vacate or modify a judgment after term. (Van Camp v. McCulley, 89 Ohio St., 1 (104 N. E., 1004). AVhile the power of the court over its judgments during the term is inherent and plenary, still a judgment can not be set aside except for good cause shown.

One or more of the grounds set forth in Section 11631 would constitute a good cause, but the court is not limited to such grounds; a court may act upon any other ground which in the exercise of a sound discretion it may deem sufficient.

It follows that the control of a reviewing court over this discretion of a lower court is limited to cases where an abuse of discretion is clearly shown.

The controlling question for us to determine, having in mind these well-settled principles of law, is: Does an examination of the record in this ease disclose an abuse of discretion on the part of the trial court in overruling the motion to set aside the default judgment in question?

No written motion was filed and none of the grounds set forth in Section 11631, General Code, existed or were claimed.

The claimed “good cause” for setting, aside .the- judgment grows out of the following facts: Before answer day. the attorney for Wybel, being busy in patriotic work, asked the attorney for 'Sheaffer “ if he would object to time being granted for pleading, and he said he did' object to it and wouldn’t grant a minute.” The attorney for Wybél then had a talk with one of the judges in the- hall of the courthouse about further time, and reported to the attorney for Sheaffer that time to plead had been extended a week and the attorney for Sheaffer “didn’t seem rejoiced over the matter, but said nothing, only he looked rather displeased; peeved, so to speak. ’ ’

No entry extending time to plead was made by the court, but the attorney for Sheaffer observed the reported extension of a week’s time, which, if it was an extension,'was irregularly made, in his absence, without his knowledge, and when it was known. that he would object if given an opportunity. After the expiration of the extension the default judgment was entered.

A situation was thus presented in which perhaps it would not have been an abuse of discretion if the court had granted the motion, but the matter as presented to the court was peculiarly a discretionary matter.

When the application was made to set aside the judgment, the judge to whom it was made recognized that the attorney for Sheaffer was in no wise at fault, and justified in insisting upon the rights of his client, but that the time between the answer day and the entry of default was short and there was some merit in the excuse of the attorney for Wybel, and accordingly, the judge considered the proposed answer of Wybel and heard testimony, as to the merits of the controversy and concluded, in view of the doubt there was as to there being any real merit in the proposed defense of Wybel, to exercise his discretion in refusing to grant the motion.

Under all the circumstances, we can not say that he abused his discretion.

It is suggested that the taking of a default without an affidavit being filed showing that the defendant was not in the military service was a good ground for granting the motion for setting aside the judgment.

As to this suggestion it is sufficient to observe that no such ground was presented to the court below, that the record shows that Wybel was in court and testified at the hearing on the motion, and that it is not claimed that he was in. fact or ever had been in the military service. Moreover, the record discloses that Wybel had appeared and was represented by counsel in the case before the default was taken. The federal statute requiring such affidavit is for the protection of those in the military service.

Dunlap and Vickery, JJ., concur.