author: Thompson, J.

text:
    Kluth, Appellee, v. Andrus, Dir. of Pub. Safety, et al., Appellees; Patton, Appellant.

      (No. 22022
    Decided July 23, 1951.)

      Mr. Neil W. McGill and Mr. Ralph L. Bailey, for appellee Kluth.

      Mr. Emery G. Smith, for appellees Bergmann et al., civil service commission of Rocky River.

      Mr. George J. McMonagle, for appellant.
   Thompson, J.

This cause came to this court on appeal on questions of law by defendant-appellant, Patton, from a judgment of the Common Pleas Court granting a permanent injunction to plaintiff Kluth in accordance with the prayer of his petition. Defendants are the director of public safety of Rocky River, the members of the civil service commission of that city, and the intervening defendant, Martin P. Patton.

The facts admitted by' the pleadings are that under date of June 23, 1949, plaintiff Kluth and defendant Patton, being then sergeants of police, took a promotional civil service examination given by the city of Rocky River for appointment as lieutenant of police; that on August 16, 1949, Kluth, having been certified as receiving the highest rating in the examination, was appointed lieutenant; that subsequently, on October 31, 1949, the defendant Patton instituted an action in the Common Pleas Court of Cuyahoga County (being Case No. 608225) against the civil service commission of Rocky River and other city officials, as defendants, claiming he had not been properly graded nor given proper credits in his examination by the civil service commission; and that after hearing, the Common Pleas Court on' February 13, 1950, in said action between Patton and the civil service commission, ordered the latter to make up the eligible list for the position of lieutenant, either by regrading the examination previously given under date of June 23, 1949, excluding certain performance record portions of the test, or by making up such eligible list by a further examination. The court, at the same time, issued an order to the civil service commission to vacate the appointment of Kluth as lieutenant, although Kluth had not been made a party to the action. The commission complied by vacating the appointment and restoring Kluth to his former position of sergeant.

Subsequently, on March 27, 1950, pursuant to snch court order, the civil service commission of Rocky River gave a new examination in accordance with the second alternative offered by the trial court, and Kluth, plaintiff herein, took the examination under protest, and Patton, defendant herein, took the examination at the same time. On April 28, 1950, plaintiff Kluth was notified that defendant Patton rated first in the examination taken the previous month. Plaintiff thereupon, on May 2, 1950, instituted the present action, praying that a temporary restraining order be issued and that upon final hearing a permanent injunction be granted, restraining defendant, the safety director of Rocky River, from removing plaintiff and from appointing defendant Patton as lieutenant, and praying further that a mandatory injunction be granted ordering the civil service commission to withdraw its certification of Patton for the reason that no vacancy existed in the position, and for the further reason that the examination of March 27, 1950, was illegal and void.

The defendant Patton filed an amended answer in which he admitted that he and plaintiff Kluth took the civil service promotional examination on June 23, 1949, and claimed that he was fraudulently graded lower than plaintiff Kluth by the then civil service commission. He also set forth that he had filed a mandamus action (Case No. 608225) in which he asserted that he had named all necessary parties defendant. He set forth further the order of the Common Pleas Court in the action referred to, vacating the appointment of plaintiff and ordering the civil service commission to regrade its previous examination of June 23, 1949, by excluding certain so-called performance records or to grant a new examination.

Plaintiff’s reply denied that all necessary parties were included in defendant’s previous mandamus action, the fact being that Kluth had, at no time, been made a party to that action.

Plaintiff’s reply asserted that in the examination of March 27, 1950, defendant Patton appeared to receive the highest grade but that plaintiff was not given proper credits and ratings. Plaintiff, asserted further that he was then, and had been since August 16, 1949, the holder of the position of lieutenant of police, in the city of Rocky River.

Defendants, members of the civil service commission, filed an answer stating they had taken office as members of such commission in 1950 and had, therefore, not participated in the giving of the promotional examination in 1949; they asserted that they gave the examination in March 1950, pursuant to the court order; and asserted that both plaintiff and defendant Patton, as a result of such examination, claimed the right to be certified for the position of lieutenant and further prayed the determination of the court as to which of the parties, Kluth or Patton, was entitled to be certified to the appointment of lieutenant of police of Rocky River.

The matter came on for hearing in the trial court and at the conclusion of the opening statements of counsel for the parties, plaintiff moved for a finding and judgment in his favor on the pleadings and opening statements of counsel. Defendant Patton made a similar motion for a finding and judgment in his favor.

The trial court granted plaintiff’s motion. The opinion of the trial court, rendered on July 27, 1950, is published (Kluth v. Andrus, 42 Ohio Opinions, 406, 58 Ohio Law Abs., 230, 94 N. E. [2d], 823), and a reference thereto is made for a more detailed statement of the facts in this case. In this court briefs were filed in behalf of the various parties and also a brief amicus curiae of Duggan, chief of the fire department of the city of Rocky River.

The question presented in this case is the interpretation of certain civil service provisions of' the Ohio statutes, and particularly the question of the rights obtained by a member of the police department, under the classified civil service, who has secured an appointment under Section 486-13, General Code, and who has served meritoriously for longer than the three-month probationary period specified in Section 486-13, General Code. More precisely, the question is whether a member of the police department in the classified civil service, who has served the required probationary period of three months in an office to which he had been appointed as result of a promotional competitive examination, can be removed therefrom for any reason other than cause as provided in Sections 486-17a and 486-17&, General Code.

In this inquiry, the pertinent facts are that plaintiff Kluth was appointed lieutenant of police under date of August 16, 1949, as the result of a promotional examination, that he held this position at least until the court order of February 13, 1950, and that the court order vacating his position was based on no claim or charge of fraud, or any other misconduct on his part, but solely because of a claimed incorrect grading by the civil service commission. It is submitted in behalf of plaintiff that, having served more than the three-month probationary period, he acquired “tenure” under Section 486-17a, General Code, and that he can be removed only under and by virtue of that section.

It becomes important, therefore, to examine the precise language of the two sections referred to, to the extent applicable to this case.

Section 486-13, General Code, with reference to appointments under the classified civil service provides, in part, as follows:

“All original and promotional appointments shall be for a probationary period of not to exceed three months to be fixed by the rules of the commission, and no appointment or promotion shall be deemed finally made until the appointee has satisfactorily served his probationary period. At the end of the probationary period the appointing officer shall transmit to the commission a record of the employee’s service, and if such service is unsatisfactory, the employee may, with the approval of the commission, be removed or reduced without restriction; but dismissal or reduction may be ma,de during such period as is provided for in Sections 486-17 and 486-17a of the General Code. * * ®”

Section 486-17, General Code, forbidding reductions, layoffs and suspensions for religious or political reasons, does not here concern us. Neither does Section 486-176, which applies to reductions in case of lack of funds.

Section-486-17a, General Code, provides as follows:

‘ ‘ The tenure of every officer, employe or subordinate in the classified service of the state, the counties, cities and city school districts thereof, holding a position under the provisions of this act, shall be during good behavior and efficient service; but any such officer, employe or subordinate may be removed for incompet-eney, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of the provisions of this act or the rules of the commission, or any other failure of good behavior, or any other acts of misfeasance, malfeasance or nonfeasance in office.

“In all cases of removal the appointing authority shall furnish such employe or subordinate with a copy of the order of removal and his reasons for the same, and give such officer, employe or subordinate a reasonable time in which to make and file an explanation. Such order with the explanation, if any, of the employe or subordinate shall be filed with the commission. Any such employe or subordinate so removed may appeal from the decision or order of such appointing authority to the state or municipal commission, as the case may be, within ten days from and after the date of such removal, in which event the commission shall forthwith notify the appointing authority and shall hear, or appoint a trial board to hear, such appeal within thirty days from and after its filing with the commission, and it may affirm, disaffirm or modify the judgment of the appointing authority, and the commission’s decision shall be final; provided, however, that in the case of the removal of a chief of police or chief of the fire department or any member of the police or fire departments of a municipality an appeal may be had from the decision of the municipal commission to the court of common pleas of the county in -which such municipality is situated to determine the sufficiency of the cause of removal. Such appeal shall be taken within ten days from the finding of the commission. ’ ’

In addition to the foregoing sections, Section 486-15a, General Code, dealing with promotions in the civil service in the case of patrolmen and firemen is to be kept in mind. The portion of that section significant for present purposes is as follows:

“No position above the grade or rank of patrolman or regular fireman in the police or fire department shall be filled by original appointment. Vacancies in positions above the rank or grade of patrolman or regular fireman in a police or fire department shall be filled by promotion from among persons holding positions in a grade or rank lower than the position to be filled. Appointments to such vacancies shall be limited to members of the respective departments. No position above the grade or rank of patrolman or regular fireman in a police or fire department shall be filled by any person unless he shall have first passed a competitive promotional examination. * * *”

In the light of the sections quoted, had plaintiff Kluth, by service of more than three months in his position, acquired tenure? We believe that he had acquired such tenure and that he could, therefore, be discharged only for cause and under procedure provided by Section 486-17o or Section 486-17&, General Code. We find no action taken under those sections on the part of the city authorities in this case. We realize the implications in this holding and have borne in mind, in reaching it, the fact that the vacation of Kluth’s appointment was pursuant to what the municipal civil service commission believed to be a valid order. Recognizing that instances may arise whereby a civil service commission would be required under court order to vacate an appointment, and whereunder another court would be required on the basis of res adjudicaba to accept such ruling, we do not find that Patton’s original action resulted in an order of such nature. The defendant Patton argued forcefully in this court that the decision in case No. 608225 required such action by the civil service commission and ac-' ceptance of it by the trial court, but in that suit Kluth was not a party and Kluth’s status could not be affected by a case in which he was not made a party or given opportunity to be heard. The findings of the trial court in the Patton case could not be res adjudicóla as to Kluth or others not parties to that action. This principle appears to us so fundamental and so thoroughly recognized that we merely cite the following authorities: 23 Ohio Jurisprudence, 836, Section 527, and Auglaize Box Board Co. v. Hinton, 100 Ohio St., 505, 126 N. E., 881.

We believe it clear, therefore, that in the present action in which Kluth sought an adjudication of his status and an assertion of his rights, the trial court was not only not bound by the previous suit on the part of Patton, but properly inquired-into the circumstances of that action, since counsel submitted to the. trial court in this cause the files in Case No. 608225. Under the facts of the pending case, Kluth not having been a party to -the previous action and there being no claim that he was a participant in any fraud in connection with his promotional civil service examination, his rights could not be adjudicated, by a ruling in a case in which he was not represented; furthermore, he had acquired a vested right under the civil service sections of the Code of which he could not be deprived, except in a manner provided by law. Having held a promotional position for more than the probationary period of three months, his occupancy had ripened into a special right recognized, by statute; a right not to be taken away except under procedure and for cause specified in the statute. (Section 486-17<z, General Code.)

In the case of State, ex rel. Wolcott, v. Celebrezze, 141 Ohio St., 627, 49 N. E. (2d), 945, the Supreme Court had before it the case of a captain in the police force whose name was first on the eligible list for promotion to the position of deputy inspector, and he brought an action in mandamus to compel respondent, director of safety of the city of Cleveland, to promote him to an alleged vacancy. In deciding that case, and in interpreting the civil service statutes involved, particularly Sections 486-17& and 486-15a, General Code, Chief Justice Weygandt, in rendering the opinion of the court, declared:

“The respondent comments upon what he considers to be the unwisdom of the provisions of these statutes. However, that is not a judicial problem but rather a matter of legislative policy resting in the discretion of the General Assembly.”

In deciding the present case, this court similarly points out that there is here no question of policy to decide, but an interpretation, in the first instance, of statutes expressing the legislative purpose of the people of Ohio.

There was early recognition of the need for civil service laws in Ohio. As a result of the Constitutional Convention of 1912, one of the amendments to the Ohio Constitution adopted was Section 10, Article XV, which is as follows:

“Appointments and promotions in the civil service of the state, the several counties, and cities, shall be made according to merit and fitness, to be ascertained, as far as practicable, by competitive examinations. Laws shall be passed providing for the enforcement of this provision.”

In conformity with that provision of the Ohio .Constitution the first general civil service law in Ohio was enacted in 1913. (103 Ohio Laws, 698.) The present act, Sections 486-1 [486-la] to 486-31, inclusive, General Code, dates from 1915, except for various amendments since that time.

In Curtis, Safety Dir., v. State, ex rel. Morgan, 108 Ohio St., 292, 140 N. E., 522, decided in 1923, the Supreme Court, in the fourth paragraph of the syllabus, declared the purpose of the act to be as follows:

“The fundamental purpose of civil service laws and rules is to establish a merit system, whereby selections for appointments in certain branches of the public service may be made upon the basis of demonstrated relative fitness, without regard to political considerations, and to safeguard appointees against unjust charges of misconduct and inefficiency, and from being unjustly discriminated against for religious or political reasons or affiliations. m * * ”

See, similarly, the first paragraph of the syllabus in State, ex rel. Buckman, v. Munson, Dir., 141 Ohio St., 319, 48 N. E. (2d), 109.

The sections we have for consideration in the instant case (Sections 486-13, 486-15a and 486-17a) have been in effect substantially in their present form since 1931. Many Ohio cases have discussed the meaning of these sections as they apply to and adjudicate the status of civil service employees comprising two categories, first, employees appointed or promoted from eligible lists and dismissed during the probationary period of three months, and second, employees similarly appointed or promoted and discharged after having satisfactorily served their probationary period. Because of the importance of the question before us and our realization of the possible effect of the present decision on other cases, we shall refer to various Ohio cases heretofore decided which have aided us in reaching the conclusions we here express.

The first case to be noted is State, ex rel. Byrd, v. Sherwood, Dir., 140 Ohio St., 173, 42 N. E. (2d), 889. We content ourselves at this point'with a quotátion of the syllabus but shall return to a more detailed examination of that leading case in connection with the claims of fraud raised by the defendant Patton. The syllabus of the Byrd case is as follows:

“1. The removal of one regularly appointed to a position in the classified service from a list of persons whose names had been duly certified to the appointing officer in accordance with the provisions of Section 486-13, General Code, and who had rendered satisfactory service for more than ninety days is governed by the provisions of Section 486-17®, General Code.

“2. Though an incorrect certification of an eligible list from which appointments to positions in the classified service are to be made may be subsequently corrected, such change does not authorize the peremptory dismissal of an employee who prior thereto had been appointed pursuant to such certification and served satisfactorily longer than the probationary period.”

We believe the facts in the foregoing case cause it to be of particular importance in deciding the present. case.

We also call attention to the case of State, ex rel. Hoornstra, v. Atkinson, Admr., 136 Ohio St., 569, 27 N. E. (2d), 249, decided in 1940. In that case a mandamus action was brought by relatrix to compel the respondent to restore her to her former position of senior interviewer in the classified service of the Ohio Bureau of Unemployment Compensation, she not having been laid off or suspended for cause under the provisions of Section 486-17a, General Code. The facts established were that relatrix successfully passed a competitive civil service examination in the classified service. On December 30, 1938, the Civil Service Commission certified her name to the Unemployment Compensation Commission as eligible for appointment. On December 31, 1938, the Unemployment Compensation Commission appointed her to the position in question, to become effective on the day she reported to the manager of the Cleveland office. Actually, she began work on December 27, 1938, and continued to hold the position until May 10,1939, when she was discharged. Through some apparent error, no report of her appointment was made to the Civil Service Commission as provided by Section 486-13, General Code, until February 10,1939. The question before the court was whether,her appointment became effective on December 31, 1938, or on February 10, 1939, as shown in the records of the Civil Service Commission. It was the claim of relatrix that her position became effective December 31, 1938, while the respondent claimed her appointment became effective February 10, 1939, and that her discharge on May 10, 1939, was within the probationary period of three months specified by Section 486-13, General Code. The question before the Supreme Court was whether, since the report, of her appointment as provided by Section 486-13, General Code, was not made to the Civil Service Commission until February 10,1939, her appointment became effective only as of that date. The court held that her appointment became effective from the date of appointment and not from the date of the report of such appointment made by the appointing authority to the Civil Service Commission. Having determined that point, the Supreme Court allowed the writ as prayed for by relatrix, ending its opinion with the following positive statement:

“In the opinion of the court, the appointment of relatrix became effective as of December 31, 1938, and since her probationary period of employment had expired before May 10, 1939 she could not then be removed, except for cause. Her discharge was, therefore, wrongful.”

It will be noted that the foregoing language clearly holds that the relatrix, having served for more than the probationary period of three months, could not thereafter be removed except for cause. It also appears from the facts that when the court referred to removal for cause, it meant cause under Section 486-17a, General Code.

A subsequent decision by the Ohio Supreme Court is equally persuasive on this point. In State, ex rel. Daly, v. City of Toledo, 142 Ohio St., 123, 50 N. E. (2d), 338, relator brought an original action in the Supreme Court, seeking a writ of mandamus to compel the city officials to restore him to his position as deputy chief of the division of fire for the city of Toledo. Relator had been appointed a regular fireman in the classified service in 1909 and, from time to time during his continuous service, he had been promoted within the department. On November 16, 1938, he was promoted to the office of deputy chief. His original appointment and all promotions were permanent appointments. He held his office of deputy chief until May 9, 1943. At that time, which was his 65th birthday, he was notified by the director of public safety that he would be retired from duty in view of a city ordinance, passed in 1935, providing that no member of the police or fire department of the city of Toledo should remain in service after attaining the age of 65 years. Note, therefore, that under the facts of that case relator was discharged because of a city ordinance and not for any of the causes specified in Section 486-17a, General Code. The Supreme Court declared that relator was entitled to a writ of mandamus, stating that since he was in the classified civil service he was entitled to the full protection and benefit of the state civil service laws, and that, since under Section 486-17a, General Code, he was entitled to tenure during good behavior, the municipal ordinance requiring retirement at 65 years of age was invalid and unenforceable.

In its opinion, the court quoted from Section 486-17a, General Code, and then discussed the meaning of the word, “tenure.” In its opinion, at page 129, the court declared:

“The word tenure and the word term are not synonymous although frequently so used. ‘Tenure’ has a more extended meaning than ‘ term. ’

“Tenure is the right to hold office for an indefinite time.

“Term denotes a period of time within fixed limits.

“It must be presumed that the General Assembly used the word temire in 486-17a, General Code, deliberately and not inadvertently. Such construction is required in view of the further language employed: ‘Shall be during good behavior and efficient service.’ No one could seriously contend that ‘during good behavior and efficient service’ does not denote an indefinite period of time.

“The General Assembly having fixed the tenure of office of all persons in the classified civil service of the state, counties, cities and city school districts, a member of the fire department in such service, therefore, is protected in his tenure and can be removed from service only as provided by the statute.

“The General Assembly having determined and specified the causes for removal, that action amounts to a prohibition of a removal for a different cause. Mechem on Public Offices and Officers, 285, Section 450, and cases cited.”

Various decisions of the Courts of Appeals of Ohio have also pointed out the distinction between the right of discharge of a civil service employee during the probationary period of three months and the status acquired after termination of the three-month probationary period. We call attention to State, ex rel. Noble, v. Atkinson (1940), 31 Ohio Law Abs., 576, decided by the Court of Appeals of the Second Appellate District. That was an action in mandamus in the Court of Appeals by a dismissed classified civil service appointee to compel restoration to his position with the Bureau of Unemployment Compensation. The relator claimed he had been illegally removed after he had served his probationary period of three months. The writ was allowed because the court found from the facts that relator had been appointed on December 31, 1938, and was discharged on May 10, 1939, after he had acquired tenure. The holding of the court is thus stated in the syllabus:

“Where the Bureau of Unemployment Compensation by formal resolution names a person on a regular certified list as a regular probationary appointee on a certain date, and any investigation by the bureau or the Civil Service Commission would disclose such appointment, the probationary period dates from the day such appointment is made, the validity thereof is not affected by the failure of the bureau to make proper report to the commission as required by Section 486-13, General Code, and a later certified list and appointment, not having such indicia of regularity and authority, will not be given effect, so that the appointee, dismissed after the ninetieth day from the prior appointment without justification, is entitled to a writ of mandamus compelling his restoration to his position in the classified service.”

Another case discussing Section 486-13 and Section 486-17a, General Code, is State, ex rel. Crabtree, v. Eichelberger, City Mgr. (1945), 76 Ohio App., 108, 61 N. E. (2d), 818, a decision by the Court of Appeals of the Second Appellate District. That case involved an original action in mandamus in the Court of Appeals by relator seeking restoration of his position as captain in the fire department of the city of Dayton. Relator had been promoted under an eligible civil service list in August 1943 and he was notified of his reduction in rank from captain to lieutenant effective February 19, 1944. He was informed by letter that his services as captain “have not measured up to the standard required for that position ’ ’ and that he was therefore reduced to his rank of lieutenant. Relator claimed that the charges were not definite and certain and that they did not come within the requirements of the General Code or of the charter of the city of Dayton. The respondent in his answer contended that under the provisions of Section 99 of the charter of the city of Dayton, no specific charges were required, that section providing that a promotion should not be deemed complete until a probationary period of six months had elapsed. The Court of Appeals pointed out that that section of the charter of the city of Dayton differed from Section 486-13, General Code, and that the state law therefore prevailed. The demotion was held to have been illegal since more than three months had elapsed since relator’s appointment and no specific charges had been preferred as required by Section 486-17, General Code.

In the case of Zimbelman v. Atkinson (1948), 54 Ohio Law Abs., 47, 86 N. E. (2d), 791, decided by the Court of Appeals of the Second Appellate District, it was held that the mere failure of the Civil Service Commission to make proper formal entry of an appointment, otherwise regularly made and certified to, would not affect the validity of such appointment. The court declared that plaintiff, having attained the status of a regular civil service appointee by service of more than the three-month probationary period, was entitled to retain her position during good behavior and efficient service and could be separated from her position only in the manner prescribed by statute.

The most recent decision in Ohio is State, ex rel. Kelley, v. Hill, 88 Ohio App., 219, 99 N. E. (2d), 1, a decision of the Court of Appeals of the Second Appellate District. The first .two paragraphs of the syllabus are as follows:

‘‘ 1. The provision contained in Section 486-13, General Code, that an original appointment shall be for a probationary period not to exceed three months is for the benefit of the appointing power.

“2. Where, following an appointment, the appointee serves for a period far exceeding the three-month probationary period and the appointing power fails to make any report to the civil service commission indicating that appointee’s services are unsatisfactory, it is presumed that the services of appointee are satisfactory and the appointment becomes permanent. ’ ’

The cases referred to, decided by the Ohio Supreme Court and Courts of Appeals in recent years, reinforce our judgment that Sections 486-13 and 486-17o, General Code, construed together, clearly provide that any appointment or promotion in the classified civil service, after expiration of the three-month probationary period, confers tenure on the employee of such a nature that he can thereafter be discharged or demoted only for the causes mentioned and in the manner provided by the civil service statute. It follows from this conclusion that Kluth, having served more than the three-month probationary period contemplated by the statute, can be discharged or demoted only for the causes provided in Section 486-17a, General Code, and under the procedure outlined. No such cause has been shown as a basis for demotion in this case and the statutory procedure for hearing of any charges against him was not followed by the appointing authority or by the civil service commission of the municipality.

The only question remaining, therefore, is whether any allegations of the pleadings or the opening statements of counsel before the trial judge set forth any such compelling or overriding combination of circumstances as to call for the ignoring of the plain language of the statute. The trial court indicated in its opinion that it gave careful attention to the charges of fraud set forth in the amended answer of the intervening defendant, Patton, it being alleged therein “that all members of the civil service commission, as then constituted, fraudulently lowered his [Patton’s] grade and increased the grade of the plaintiff in this action so as to make it appear that this defendant did not receive the highest grade.” Fraud by the civil service commission is also alleged by Patton’s counsel in his opening statment before the trial judge and this statement is incorporated in the bill of exceptions so that we have it before us. The fraud claim referred to in the bill of exceptions is as follows:

“The evidence will show that by a proper grading of the various questions that were put in there, Mr. Kluth did not receive 100 per cent; that he gave incorrect answers that were graded as. correct and Mr. Patton gave correct answers that were graded incorrect ; that this was done deliberately so as to give Mr. Patton a lower grade than he was entitled to, and to build up Mr. Kluth and cut down Patton. We allege that this was done fraudulently; that the examination and the office were stolen from Mr. Patton.

“Mr. Patton was ahead by nine-tenths of a point. Then the 85 that had been given to Mr. Klnth for performance record was deliberately and fraudulently raised to 89, in order to steal the examination and office from Mr. Patton.”

The trial court in its opinion, in discussing the charges of fraud, also referred to the fact that counsel for the parties submitted to it the files in case No. 608225 (the Patton case).

Parenthetically, it should be added that although no part of that file and no copies of the pleadings in the Patton case were incorporated in the bill of exceptions, and it might, therefore, be questioned as to our authority to examine into the case, were it not for the trial court’s action based on consent of counsel, we have in the light of that action and with that consent taken note that in the early stages of the Patton case the trial court granted an alternative writ of mandamus to show cause, returnable on November 14th. But the record does not disclose that the trial court at that time issued any temporary restraining order or took any other action to interrupt the probationary period of tenure within the three months mentioned in Section 486-13, General Code. The only entry made as the result of the hearing on November 14 was one advancing the case for early trial.

Defendant Patton’s amended answer sets forth what appears to be the pertinent part of the trial court’s decree in the Patton case. Despite the allegations of fraud made by Patton in his amended answer in the instant case, with reference to the grading of the original civil service examination, it is to be observed that neither Patton nor any other party claims any participation by Kluth in any alleged incorrect, illegal, or fraudulent grading. That portion of the opinion of the trial judge in the Patton case, which has been quoted in Patton’s amended answer herein, reveals no finding of fraud on the part of the commission or on the part of any other city official of Rocky River. Where a motion for a finding and judgment based on pleadings and opening statements of counsel is joined in by both sides, as in this case, the function of the trial court in passing on the motions is to assume the truth of all of the facts stated in order to sustain the principle that every litigant is entitled to his day in court. K. & S. Realty Co. v. Rosen (1946), 47 Ohio Law Abs., 316, 72 N. E. (2d), 116, decided by the Court of Appeals of this Appellate District. See, also, the citation and comment upon this case in the Cumulative Supplement to 39 Ohio Jurisprudence, 884, Sections 226, 227.

We are therefore called upon to assume fraud on the part of the civil service commission for the purpose of determining whether the trial court acted properly in granting plaintiff’s motion for a directed verdict at the close of the opening statements of counsel and in overruling the motion of defendant for a finding and judgment.

Assuming such fraud by the municipal civil service commission in the alleged incorrect grading of the original examination, we have hereinbefore pointed out that the trial court had access to the pleadings in the Patton case. The trial court, in its well-reasoned opinion, declared as follows:

“The findings in said cause 608225. were to the effect that the civil service commission had erred in one section of the examination. There was no finding of fraud on the part of any person or body; there was no finding, nor is it even claimed that Kluth had anything whatever to do. with the error or the proceedings beyond his entering the examination.”

Although the finding of the trial court and the portion of the judgment in the Patton case (No. 608225), quoted in Patton’s amended answer in the instant case, reveal no fraud on the part of the civil service commission in the adjudication of the earlier case, we, nonetheless, do have the charges of fraud raised by defendant Patton in his amended answer in this case and the opening statement by his counsel charging fraud .by • the civil service commission, hereinabove quoted from the bill of exceptions.

It might, with pertinence, be inquired as to whether Patton, having once previously chosen to litigate the question of fraud by the civil service commission and having presumptively obtained a judgment in which any finding of fraud was absent, is not bound by such judgment in a later case in which he and the civil service commission are again parties and in which he seeks to adjudicate the same question, for the successor civil service commissioners stand in the shoes of their predecessors.,, Be that as it may, what the trial court had to decide in this case, in view of the allegations of fraud in Patton’s amended answer and in his counsel’s opening statement to the court, was whether, granting fraud by the commission, which might be proven if the case went to trial, would such fraud by the commission vitiate the Kluth appointment, in the absence of participating fraud by the latter? We believe, with the trial court, that it would not, and we base our conclusions on the language of the statutes and the Ohio cases we have discussed.

In this connection we have hereinbefore cited State, ex rel. Byrd, v. Sherwood. That case involved facts very similar to the facts involved in the present case. In the Sherwood case, relator had obtained his appointment as investigator in the Division of Aid for the Aged as the result of a competitive examination which created an eligible list comprising 133 persons. The grade of relator in the. examination caused him to be No. 129 on the list. Subsequently relator was notified of his appointment and he commenced work on August 1, 1941, performing his duties until December 15, 1941. Ifisubsequently appeared, after relator’s appointment, that his appointment and those of 41 others on the civil service eligible list were the result of waivers obtained from 71 individuals standing higher on the list than relator. Upon complaints filed with the state Civil Service Commission on October 20, 1941, it developed that the waivers had been acquired by an agent for the appointing authority, presumably without its knowledge, who had contacted the various persons on the eligible list and persuaded 71 of them to execute waivers of their rights of priority. These waivers were procured by various forms of persuasion, including assurances of later favorable attitude and consideration by the appointing power and threats and misrepresentations. It being difficult to imagine a more assiduous application of effort required than that of securing relinquishment of expectant rights by as many as 71 persons, it is obvious many forms of representation must have been made to the individuals in order to prevail on them to execute waivers. The investigation by the state Civil Service Commission having revealed this improper action, the commission, on November 15, 1941, directed that all appointments made from the previous certification be cancelled and on November 18, 1941, relator was notified of the rescission of the certification of his and all appointments previously made thereunder. Relator thereupon instituted an action in mandamus in the Supreme Court, in which action he asserted that he had served more than the 90-day probationary period and claimed that he had thereby become vested with tenure during good behavior and that he could be removed only in the manner provided by statute and for some cause therein specified. The Supreme Court, in granting the writ, held that relator had acquired tenure by rendering satisfactory service for more than the three-month probationary period provided in Section 486-13, General Code. In so holding, the Supreme' Court declared that no fraud was shown on. the part of relator. In its opinion, at page 179, the court declared:

“If the relator or relatrix had sponsored or participated in any violation of the civil service statutes, Section 486-17a, General Code, provides a ready means for their removal from their positions. It does not appear in this case that either has even been charged with misconduct or with participation in the misconduct of another, either directly or indirectly, though they benefited from the questionable action of the representative of the respondents, or with having .any connection whatever therewith, except to be made the innocent victim of such action. ’ ’

The court declared further on page 180:

“The original list certified was concededly a list of persons, all of whom were then eligible for appointment. The names of the relator and relatrix were on such list and their appointment by the respondents was thereby authorized and accordingly made. Bd. of Trustees of Madison County Children’s Home v. State, ex rel. Laird, 128 Ohio St., 560, 192 N. E., 877. An incorrect certification undoubtedly may be corrected, but this correction cannot be employed to remove employees who theretofore had been appointed pursuant to such certification and who, through satisfactory service for the required period, had acquired a status of members of the classified service of the state. Being in the classified service, they may not be summarily dismissed. State, ex rel. Slovensky, v. Tay lor, Dir., 135 Ohio St., 601, 21 N. E. (2d), 990. To proceed against these persons, the provisions of Section 486-17a, General Code, must be followed. If those provisions are deemed inadequate, the remedy is by legislative amendment and not by administrative or even judicial amendment.

“If it be assumed that fraud would vitiate the original certification and warrant the rescission of the appointment of anyone selected from that list, it must be observed that no finding of fraud was announced, either by the Civil Service Commission or by the officers making the appointment. ’ ’

In comparing the Sherwood case with the present case, note that in the instant case the original court action by Patton was commenced before the termination of the three-month probationary period of Kluth, and that in the Sherwood case the irregularity or fraud in connection with the procurement of waivers culminated in charges filed with the state Civil Service Commission prior to expiration of the three-month probationary period of relator. The publicity in either ease was notice to a diligent appointing authority that the statutory probationary period had not expired but that “time was running,” provided affirmative action to remove the probationary appointee was deemed advisable. In neither case was action taken and we may presume that the appointing authority found no reason for action. It is not, however, the lack of agitation on the part of the appointing authority that causes us to point to similarities in the two cases; we are interested in observing that the Supreme Court in the Sherwood case was not led to suggest, by any analogy to a statute of limitations, that objections taken during the three-month probationary period postponed or interrupted the running of the three-month probationary period. If effective affirmative action by a court during the three-month probationary period would interrupt the statute, the fact is that we do not have such action in this case, as we have previously pointed out.

Analysis of the Sherwood case and of the two paragraphs commenting on fraud, which we have quoted, makes it apparent that the Supreme Court had in mind two kinds of misconduct in the case of a civil service employee having acquired tenure and in which fraud might be involved; the first, covering misconduct vitiating the appointment when participated in by the employee, permitting removal for cause under Section 486-17a, General Code; the second, being fraud by the appointing authority. In the case of fraud of the latter kind, not participated in by the employee, Sections 486-13 and 486-17a, General Code, would apply to prevent his removal unless the courts read an exception into the plain language of the statute. This we are unwilling to do.

Our conclusion should appear in no degree surprising, if it be borne in mind that the prime principle of the Civil Service Act is to provide tenure for persons having been appointed and having served the statutory probationary period. Thus acquiring “tenure” or permanent civil service status, such employees can be discharged only for causes to which they themselves may have contributed, and not because of the fluctuating ebb and flow of political fortunes. To declare otherwise would encourage unending assaults on the virtues of their predecessors by incoming administrations and re-examination and constant charges of fraud in connection with their appointments. The present case indicates the jeopardy in which all individuals in the permanent civil service would find themselves, in spite of statutory “tenure,” if they could be readily displaced by findings or charges of illegal appointment by duly constituted successor authorities. Instead of offering inducements to an attractive and dignified career, civil service would become increasingly hazardous and uninviting.

We have examined all the cases cited by counsel, and in reaching our conclusion we have contented ourselves with nothing less than a complete examination of the law relating to tenure of civil service employees in this and other jurisdictions. We have found no cases from other states which have aided our determination, and rather naturally so, since our problem is the correct interpretation of Ohio statutes. It would unduly prolong this opinion for us to distinguish various cases cited by counsel in their briefs, which we have omitted to mention, believing them not in point. In this category we include State, ex rel. Bigam. v. Hainen et al., Civil Service Commission, 150 Ohio St., 371, 82 N. E. (2d), 734.

We should add one further comment. We do not consider that the present action constitutes a collateral attack on the judgment of the trial court in the Patton case, and, from the evidence before us, that case was undoubtedly correctly decided on the basis of the pleadings and facts there presented. It does not, however, adjudicate the rights of plaintiff in this case, whom we find entitled to the injunction prayed for.

The judgment of the trial court is affirmed.

Judgment affirmed.

Skeel, P. J., and Hurd, J., concur.


source: Caselaw Access Project

author: Wiseman, J.

license: Public Domain

text:
    Moore, Appellant, v. Foreacher, Recr., et al., Appellees.
    (No. 4509
    Decided February 21, 1951.)

      Messrs. Coughlin, Ogier S Lloyd and Mr. Robert A. Ramsey, for appellant.

      Mr. Herbert 8. Duffy and Mr. C. Wm. O’Neill, attorneys general, Mr. James B. Dooley and Mr. J. Rals-ton Werum, for appellees.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Franklin County dismissing an appeal from the decision of the Unemployment Compensation Board of Review denying claimant’s application for unemployment compensation.

During the pendency of the appeal in the Commou Pleas Court the board of review filed a motion to dismiss the appeal for the reason that the notice of appeal failed to set forth the decision appealed from as required by law. ' Before this motion was decided the appellant filed a motion for an order permitting the filing of an amended notice of appeal which was tendered with the motion. The court sustained the motion to dismiss the appéal and overruled the motion to permit appellant to amend the notice of appeal.

Two errors are assigned- — -that the dismissal of the appeal was contrary to law, and that the court erred in refusing appellant permission to amend the notice of appeal.

The principal question for determination is whether the notice of appeal complied with the requirements of Section 1346-4, General Code, the pertinent part of which provides as follows:

“Such appeal shall be taken by the filing by appellant of a notice of appeal with the clerk of such court and with the board of review. Such notice of appeal shall set forth the decision appealed from and the errors therein complained of. ’ ’

The notice of appeal in the instant case states:

“That the decision appealed from is numbered on the appeals docket for the Board of Review — Bureau of Unemployment Compensation No. 105497, 13915— REF. — 49,151—BR—50, and the Social Security number of the appellant herein is [ XXX-XX-XXXX ]. Appellant further says that the decision of the board of review was to the effect that the appellant herein was not available for work, whereas, in truth and in fact, the appellant was available for work.”

Appellant contends that the notice of appeal met the statutory requirement by designating the decision appealed from by its appropriate number and stating the substance of the decision. In support of this contention appellant cites Castleberry, d. b. a. Cedar Hills Farms, v. Evatt, Tax Commr., 147 Ohio St., 30, 67 N. E. (2d), 861, 167 A. L. R., 198, which involved an appeal from the Board of Tax Appeals to the Supreme Court. The sufficiency of the notice of appeal was challenged. The statutory requirement applicable to appeals from the Board of Tax Appeals is'found in Section 5611-2, General Code, the pertinent part being as follows:

“Such notice of appeal shall set forth the decision of the Board of Tax Appeals appealed from and the errors therein complained of.”

The statutory requirement under consideration in the Castleberry case is similar to the statutory provision applicable here.

The notice of appeal in that case is set forth on page 37 in the dissenting opinion by Judge Zimmerman as follows:

“ * * he [appellant] desires and intends to appeal to the Supreme Court of Ohio from a judgment of the Board of Tax Appeals entered in cause number 9523 on November 7,1945, reversing an order and judgment theretofore made and entered by the Hon. William S. Evatt, former Tax Commissioner, wherein a tax assessment was levied against one J. P. Castleberry of Mariemont in the State of Ohio. * * * Sai,d entry of judgment is erroneous and contrary to law in finding as a matter of law and fact that the milk which was the subject matter of the sales was sold to be consumed off the premises where sold.’ ”

Judge Matthias, writing the opinion for the majority, on page 31 said:

‘ ‘ The writer of this opinion entertains the view that the notice of appeal from the Board of Tax Appeals to this court does not comply with the requirement specified in Section 5611-2, General Code, that ‘such notice of appeal shall set forth the decision of the Board of Tax Appeals appealed from’; and therefore that the general provision of Section 12223-5, General Code, which reads, ‘the notice of appeal shall designate the order, judgment, or decree appealed from,’ has no application to this proceeding.

“However, the majority of the court having ruled against the motion'to dismiss the appeal, we proceed to a consideration of the case on its merits.”

Judge Zimmerman dissented on the merits' but agreed with the majority on the question of the sufficiency of the notice. On this question we quote from Judge Zimmerman’s opinion, beginning on page.36:

“As to the first question, Section 5611-2, General Code, relating to appeals from decisions of the Board of Tax Appeals to the Supreme Court, provides in part:

‘ ‘ ‘ Such notice of appeal shall set forth the decision • of the Board of Tax Appeals appealed from * * *. ’

“It is important to note that such section, unlike Section 5611, General Code, pertaining to appeals from final determinations of the Tax Commissioner to the Board of Tax Appeals, says nothing concerning the inclusion of any paper in the notice of appeal by way of attachment or incorporation.

“The terms ‘set forth’ and ‘set out’ ordinarily mean to recite or narrate facts or circumstances; to describe or to. incorporate. See Black’s Law Dictionary (3 Ed.), 1612.

“The principal function of a notice of appeal is to advise the opposite party of the taking of an appeal. Statutes relating to appeals are remedial and should be liberally construed to the end that the right of appeal may not be defeated. Commonwealth Oil Co. v. Turk, 118 Ohio St., 273, 160 N. E., 856; 37 Ohio Jurisprudence, 732, Section 411.

“The notice of appeal here involved was filed with the Board of Tax Appeals within the thirty-day limitation. It adequately describes and sets forth the decision complained of and was sufficient to satisfy the demands of Section 5611-2, General Code. See Capital Loan & Savings Co. v. Biery, 134 Ohio St., 333, 16 N. E. (2d), 450; Trotwood Trailers, Inc., v. Evatt, Tax Commr., 142 Ohio St., 197, 51 N. E. (2d), 645.

“It is the general rule that, although a notice of appeal should comply substantially with statutory requirements, it is usually sufficient if it contains enough information to apprise the opposite party of the particular judgment which is sought to be reviewed. 3 American Jurisprudence, 168, Section 470; 4 Corpus Juris Secundum, 1061, Section 593.”

The essence of Judge Zimmerman’s ruling is that a substantial compliance with the requirements of the statute is sufficient.

This opinion standing alone would lend no support to the contention of counsel for the bureau that substantial compliance is not sufficient. -Counsel for the bureau specifically contends that the statute (Section 1346-4, General Code) requires the appellant to set forth the decision appealed from and that this requirement is mandatory; that the statutory provision requires the appellant to set forth the entire decision appealed from; and that unless appellant complies with the statute the court is without jurisdiction.

In support of this proposition counsel for the bureau cite the case of Zier v. Bureau of Unemployment Compensation, 151 Ohio St., 123, 84 N. E. (2d), 746, the first paragraph of the syllabus of which is as follows:

“An appeal, the right to which is conferred by statute, can be perfected only in the mode prescribed by statute. The exercise of the right conferred is conditioned upon compliance with the accompanying mandatory requirements.”

The opinion, which was written by Judge Matthias, states, on page 127:

“* * # but compliance with the requirements as to the filing of the notice of appeal — the time of filing, the place of filing and the content of the notice as specified in the statute — are all conditions precedent to jurisdiction.

“The notice of appeal involved herein is not sufficient to meet the requirements of the statute in that it fails to set forth the decision appealed from or the errors therein complained of. ’ ’

In that case the same statutory provision was under consideration as in the instant case. The pronouncement of the Supreme Court in that case must be read in the light of the notice of appeal which the appellant filed in that .case.

That notice of appeal reads as follows:

“The undersigned claimant hereby gives notice of appeal from the decision of the board of review denying the right to compensation, in accordance with his right to appeal under Section 1346-4 of the General Code.”

We readily agree that the notice of appeal in that ease did not set forth the decision appealed from or the errors' complained of. The court did not discuss or even cite the Castleberry case.

In the final analysis we are here required to determine the meaning of the statutory words, “set forth.” In the Castleberry case Judge Zimmerman cited Black’s Law Dictionary which defines “set forth” to mean: “To recite or narrate facts or circumstances; to describe or to incorporate.”

We find no opinion of the Supreme Court, or of an appellate court in this state, to the effect that Section 1346-4, General Code, requires the entire decision to be incorporated in the notice of appeal. In our judgment the statute does not require, and we find no plausible reason for requiring, that the decision be set out verbatim.

However, there are a number of Common Pleas Court opinions which take this view of the matter. Modern Builders, Inc., v. Collopy, Admr., No. 176443, Franklin county; Vera B. Roenker v. Board of Review, No. 176609, Franklin county; Ohio Seamless Tube Co. v. Millenbaugh, No. 31947, Richland county; In re Claim of Russell C. McKeever, No. 102129, Montgomery county; Thelma Holtkamp Gordon v. Board of Review, No. A-121258, Hamilton county.

For an opinion contra, see Frigidaire Division Board of Review, 59 Ohio Law Abs., 302, 97 N. E. (2d), 96.

We adopt the view taken by Judge Zimmerman in the Castleberry case holding that statutes relating to appeals are remedial and should be given a liberal construction to the end that the right of appeal is not defeated.

In support of this construction it is important to note that the Legislature, after the decision was announced in the Zier case, enacted Section 1345-33, General Code, effective August 8, 1949, which provides: “Sections 1345-1 through 1346-4, inclusive, of the General Code, shall be liberally construed to accomplish the purposes thereof.” See Amended Senate Bill No. 142,123 Ohio Laws, 197.

This court, rather recently, in the unreported case of Detelich v. Department of Liquor Control, No. 4434, Court of Appeals, Franklin county, decided October 2, 1950, held that under Section 154-73, General Code, which provides that the notice of appeal shall “set forth the order appealed from,” it is not necessary to set forth a true copy of the order.

In our opinion prejudicial error was committed in dismissing the appeal.

If we are correct in our judgment that the appeal should not have been dismissed, no prejudicial error resulted in overruling appellant’s motion to amend the notice of appeal. The appellant is in court on the notice of appeal as filed. If we are incorrect in our judgment and if the jurisdiction of the court was not invoked on the ground of an insufficient notice of appeal, no amendment of the notice of appeal could confer jurisdiction on the court for the reason that the statutory time within which a notice of appeal could be filed had expired. We find no prejudicial error resulting from the action of the court in refusing appellant permission to amend the notice of appeal.

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

Judgment reversed.

IIornbeck, P. J., and Miller, J., concur.


author: Per Curiam.

text:
    Cody et al., Appellees, v. Miller, d. b. a. Miller's Moving & Storage, Appellant.
    (No. 2137
    Decided April 19, 1951.)

      Mr. B. J. Stoecklein, for appellees.

      Mr. Clifford B. Curtner, for appellant.
   Per Curiam.

The petition alleges a contract of bailment of household goods delivered by the plaintiffs to the defendant for storage and safekeeping at a specified monthly rate; that such goods were to be returned to the plaintiffs upon demand; that plaintiffs made a demand on the defendant for redelivery of the goods and tendered the storage charges; and that defendant failed to comply, all to plaintiffs’ damage in the sum of $3,000.

The answer admits that plaintiffs stored certain household goods with the defendant and that the defendant was unable to return the goods because they were destroyed by fire of an unknown origin. Defendant pleads a special contract limiting liability, and a general denial. The reply denies affirmative allegations in the answer.

It is claimed the trial court erred, first, in holding that a warehouseman, in the absence of an agreement to the contrary, is an absolute insurer of the goods bailed, and, second, in placing the burden of proof upon the defendant to dispel a prima facie case when, in fact, plaintiffs failed to prove negligence, the. plaintiffs having elected to prove negligence rather than to depend on a prima'facie case.

All errors are discussed and treated under one heading.

Under Section 8477, General Code, a warehouseman is not an absolute insurer; he is liable “for any loss or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful owner of similar goods would exercise.” See 40 Ohio Jurisprudence, 1305, 1306, Sections 68, 69, and 56 American Jurisprudence, 387, 3.88, Section 144. The record does not support appellant’s contention that the trial court held that a warehouseman is an absolute insurer.

Under Section 8464, General Code, when the plaintiffs established ownership of the goods, delivery for hire to the warehouseman, and failure to redeiiver to the plaintiffs on demand, a prima facie case was made out. The burden was on the plaintiffs to prove these facts. The proof of these facts then cast the burden upon the defendant to explain the loss. It is conceded that the plaintiffs established a prima facie case except'demand. Plaintiffs claim there is sufficient evidence to warrant a conclusion that a demand for redelivery was made. The defendant contends that no formal demand was made. The evidence shows that plaintiffs’ goods, together with other goods in storage, were totally destroyed by fire. One of the plaintiffs, upon learning of the fire, went to the defendant’s place of business and inquired for his furniture. The defendant told the plaintiff that it had been destroyed in the fire. Thereupon plaintiff paid the defendant the charges. The law does not require the doing of a vain and useless thing. Agricultural Ins. Co. v. Constantine, 144 Ohio St., 275, 288, 58 N. E. (2d), 658. Under the circumstances a formal demand to deliver the furniture was not necessary. 9 Ohio Jurisprudence, 495, Section 258; 67 Corpus Juris, 530, Section 158. See, also, Buffalo Grain Co. v. Sowerby, 195 N. Y., 355, 88 N. E., 569. A prima facie case was thus established by the plaintiffs.

The plaintiffs presented evidence in an attempt to prove that defendant did not use due care. The plaintiffs, as a part of their case in chief, called two inspectors of the fire department who testified that the cause of the fire was unknown; that the department had made certain recommendations to the defendant prior to the fire, with which defendant had not complied; that they could not state that the fire was due to the negligence of the defendant or to his failure to comply with their recommendations; and that defendant operated his warehouse in a manner similar to the operation of other warehouses.

Is the plaintiff denied the right to go to the jury on the ground that this evidence was presented in the plaintiffs’ case?

The defendant introduced no testimony. It is claimed by the defendant that the plaintiff lost the benefit of a prima facie case by presenting evidence that the furniture 'was destroyed by fire and in an attempt to show that the defendant did not safely keep the goods. The defendant contends that by attempting to prove more than a prima facie case, the effect was to place the burden on the plaintiffs to prove negligence and if the evidence did not establish the negligence of the defendant that the plaintiffs had failed in their proof. The defendant relies chiefly on the case of Blackburn v. Norris, 46 Ohio App., 469, 189 N. E., 262, and Syndicate Parking, Inc., v. General Exchange Ins. Corp., 17 Ohio Law Abs., 596. Support is found in these two cases for defendant’s contention. However, plaintiffs contend that the law announced in these two cases has been overruled in the later case of Agricultural Ins. Co. v. Constantine, 40 Ohio Law Abs., 569, 56 N. E. (2d), 687, which was certified to the Supreme Court on the ground that it was in conflict with the judgment pronounced in Blackburn v. Norris, supra. The Supreme Court, in 144 Ohio St., 275, 58 N. E. (2d), 658, affirmed the judgment of the Court of Appeals in the Constantine case. The plaintiffs cite also Hanlon v. J. E. Miller Transfer & Storage Co., 149 Ohio St., 387, 79 N. E. (2d), 220. It is the contention of the plaintiffs that, under the doctrine of the Constantine and Hanlon cases, the burden, under the facts in this case, was on the defendant to prove by a preponderance of the evidence-that the loss was not due to the defendant’s failure to exercise due care.

In the Constantine case our Supreme Court, on page 285, held:

“The authorities are uniform in holding that proof of those facts makes out a prima facie case of liability whether the action be based upon breach of contract or upon negligence, and that the defendant must explain the loss of the bailed property.”

On page 286 the court finally stated the rule as follows:

“The rule supported by the weight of authority may be stated thus: A bailee may ordinarily rebut the presumption of' negligence or lack of due care by proof of loss arising from theft or fire. Where, however, the bailee proves loss of the bailed article by theft but attempts no explanation of the circumstances and offers no proof of facts from which an inference of due care may be drawn, he does not rebut the presumption of negligence arising from his failure to return the bailed property. See Brown on Personal Property, 330, Section 87; 8 Corpus Juris Secundum, 348, Section 50; 6 American Jurisprudence, 452, Section 372, and cases cited.”

The Constantine case was not an action brought under Section 8464, General Code. However, it did lay down the general rule on Ohio applicable to bail-ments.

In the Hanlon case the syllabus is as follows:

“Under the provisions of Section 8464, General Code, when a warehouseman refuses or fails to redeliver goods in compliance with a proper demand by the holder or depositor, the burden is on such warehouseman to prove the existence of a lawful excuse for such refusal or failure.

“The proof of such affirmative defense must be by a preponderance of the evidence.

‘ ‘ In an' action ex contractu under favor of this statute, the burden remains on the plaintiff bailor to prove a breach of the contract on the part of the defendant bailee by refusing or failing to redeliver the goods after a proper demand therefor.”

In the Hanlon case, the trial judge instructed the jury that “the burden is upon the defendant to prove the existence of a lawful excuse for its failure to redeliver said goods upon demand, by a preponderance of all the evidence. ’ ’ The Supreme Court, in commenting on this instruction, stated that it was given in almost the exact language of Section 8464, General Code, and that the trial judge was not in error in so instructing the jury.

In that case the court quotes at length from 6 American Jurisprudence, 447, Section 369, 8 Corpus Juris Secundum, 342, Section 50, and 40 Ohio Jurisprudence, 1315, Section 80, which latter says:

“The statutory rule of Section 8464, General Code, removes all doubt from the question of the burden of proving the existence of a lawful excuse for nondelivery and places the burden squarely upon the warehouseman to establish, by a preponderance of the evidence, a lawful excuse for nondelivery.”

See, also, Brenton v. Sloan’s United Storage & Van Co., 315 Ill. App., 278, 42 N. E. (2d), 945, and Benning Warehouseman Co. v. Widener (U. S. C. A.), 172 F. (2d), 910.

This court is of the opinion that in the instant case the plaintiffs were not deprived of the benefit of their prima facie ease by the introduction of additional evidence on the question of whether the defendant exercised due care. The cause of action was in contract and not in tort. . The introduction of this additional evidence did not change the cause of action from one in contract to one in tort. The plaintiffs having established a prima facie case, the burden was then on the defendant to prove by a preponderance of the evidence that he had used due care.

As we find no error in the record prejudicial to tfie rights of-the defendant, the judgment is affirmed.

Judgment affirmed.

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


author: Middleton, P. J.

text:
    In re Estate of Beckman: Department of Taxation of Ohio, Appellant, v. Beckman, Exrx., et al., Appellees.

      (No. 488
    Decided March 28, 1951.)

      Mr. C. William O’Neill, attorney general, and Mr. John J. Burtch, Jr., for appellant.

      Miss Edna L. Theidick, for appellee.
   Middleton, P. J.

This is an appeal from a judgment of the Probate Court of Mercer County, on questions of law.

The questions involved are, first, the authority of the Probate Court, on application after term, to modify its determination of inheritance tax and to order a refund of a portion of taxes previously paid, where assets were, through a mistake of fact, erroneously listed in an application to determine inheritance tax, and, second, the authority of the Probate Court to modify its determination of inheritance tax and order a refund of a portion of the tax previously assessed and paid, where it is alleged to have been excessive by reason of the failure of the executrix to list, in the application for determination of the tax, alleged debts of the decedent owed to the executrix, and the executrix had not presented the claim to the Probate Court for allowance, and the time for presenting the claim had passed.

Mark Beckman died testate on the 3rd day of June, 1949, a resident of Mercer county, and his will was admitted to probate. Letters testamentary were issued on June 10,1949, to Viola A. Beckman, executrix, and on August 4, 1949, the executrix filed with the Probate Court an application and itemized statements of assets and liabilities to be filed for the determination of inheritance tax.

The inheritance tax was determined by the court on the same day, and the tax, less discount, was paid on August 10,1949, to the treasurer of Mercer county, in the sum of $1,868.04.

On January 17, 1950, the executrix filed her application for refund of inheritance tax, claiming a refund of tax paid in the sum of $623.25. On May 18, 1950, the Probate Court granted the application of the executrix in full.

From this allowance of refund, appeal on questions of law is taken to this court by the Department of Taxation of Ohio which submits the following assignments of error :

1. The Probate Court erred in ordering a refund of the portion of the inheritance tax assessed upon the succession to certain stock in various corporations and United States Government bonds, all of which are more particularly described in the application for refund of inheritance tax.

2. The Probate Court erred in ordering a refund of that portion of the inheritance tax alleged to have been erroneously assessed due to the failure of the executrix to list certain alleged debts of the decedent’s estate in the application and itemized statement of assets and liabilities to be filed for determination of inheritance tax.

The executrix claims that as a result of such errors the value of the estate was shown to be $10,387.50 in excess of its true value, and that, by reason of such errors, inheritance tax was overassessed and paid in the sum of $623.25.

It is urged that the determination of the inheritance tax in the first instance is res judicata, for the reason that no exceptions were filed to the determination of the' inheritance tax; that by the failure to file exceptions the applicant lost her right to object to the determination of tax; and that snch determination is now res judicata.

The jurisdiction of the Probate Court to hear and determine questions relating to inheritance tax is found in Section S of Article IV of the Constitution, and in Section 5340, General Code, passed pursuant to the above constitutional provision.

Section 8, Article IV of the Constitution, provides:

“The Probate Court shall have jurisdiction in probate and testamentary matters, the appointment of administrators and guardians, the settlement of the accounts of executors, administrators and guardians, and such jurisdiction in habeas corpus, the issuing of marriage licenses, and for the sale of land by executors, administrators and guardians, and such other jurisdiction, in any county, or counties, as may be provided by law. ’ ’

Section 5340, General Code, provides, in part:

“The Probate Court of any county of the state having jurisdiction to grant letters testamentary or of administration upon the estate of a decedent, on the succession to whose property a tax is levied by this subdivision of this chapter, or to appoint a trustee of such estate, or any part thereof, or to give .ancillary letters thereon, shall have jurisdiction to hear and determine the questions arising under the provisions of this subdivision of this chapter, and to do any act in relation thereto authorized by law to be done by a Probate Court in other matters or proceedings coming within its jurisdiction * * *.”

An examination of other statutes which confer power upon the Probate Court discloses Section 10501-53, the last paragraph of which section, which was enacted by the Legislature pursuant to the constitutional provision, provides as follows:

“The Probate Court shall have plenary power at law and in equity fully to dispose of any matter properly before the court, unless the power is expressly otherwise limited or denied by statute.”

The foregoing provisions of the Constitution and the Code vest in the Probate Court jurisdiction to hear and determine the matters at. issue in this case, provided they are properly before the court.

In the case being considered, the executrix filed no exceptions to the original order determining the tax, and it is claimed that the Probate Court was without authority to entertain the application for refund of the tax paid.

Pursuant to the provisions of Section 5346, General Code, any person dissatisfied with the appraisement and determination of taxes may file exceptions thereto, in writing, with the Probate Court within sixty days from the entry of the order, stating the grounds upon which such exceptions are taken.

Upon the hearing bn such exceptions the court may make such order as to it may seem just and proper in the premises.

Section 5347, General Code, provides that at the expiration of such sixty days if no exceptions be filed, or at any time within such period on the application of all parties, including the Tax Commissioner of Ohio, the probate judge shall make and certify to the county auditor a copy of the order provided for in Section 5345, General Code. If such exceptions are filed within such period, the probate judge shall, within five days after the entry of the final order, make and certify such copy of the original finding and determination, together with any modifications thereof ordered upon the hearing of such exceptions. The county auditor shall thereupon make a charge based upon such order and certify a duplicate thereof to the county treasurer who shall collect the taxes so charged.

The same procedure is followed by the probate judge where no exceptions are filed as is followed after a hearing and ruling where exceptions are filed.

The original order made by the court on the appli-. cation for determination of the inheritance tax is an interlocutory order and becomes a final order and judgment after the court rules on exceptions which may have been filed, or at the expiration of the sixty-day period where no exceptions are filed, and certifies a copy of the order to the county auditor as set forth in Section 5347, General Code.

The Probate Court had jurisdiction both of the parties and the subject matter of the action.

The executrix, by her failure to file exceptions to the interlocutory order determining the tax, did not lose her right to have the final order determining the tax modified for her mistake of fact in erroneously listing assets for taxation. \

Holding, as we do, that such final order is a judgment, the next question presented is the power of the Probate Court to vacate or modify such judgment.

Section 10501-17, General Code, provides:

“The Probate Court shall have the same power as the Common Pleas Court to vacate its orders or judgments.”

The Probate Court can, by virtue of the above section, vacate or modify its orders or judgments the same as the Common Pleas Court, and its jurisdiction in that respect is not limited, either by the Constitution or legislative enactment, to statutory grounds. Such jurisdiction includes equitable grounds as well. Abicht, Exr., v. O’Donnell. 52 Ohio App., 513, 3 N. E. (2d), 993.

Section 11631, General Code, sets forth when a Common Pleas Court may vacate or modify its orders or judgments after term.

It has been held, however, that the power granted the Common Pleas Court to modify or vacate its orders or judgments on the grounds set forth in Section 11631, General Code, is not exclusive, but cumulative. Northern Ohio Power & Light Co. v. Smith, 126 Ohio St., 601, at 611, 186 N. E., 712.

Therefore, the power granted the Probate Court in Section 10501-17, General Code, is not limited to the grounds set forth by Section 11631, General Code, but is the same power as that granted to the Common Pleas Court, and is not exclusive, but cumulative. •

It is the claim of the executrix, as set forth in her application for refund, that the overvaluation of the estate upon which the assessment of taxes was made was due to a mistake of fact.

The relief asked by the executrix can be granted by the Probate Court only in the exercise of its plenary equity power.

The question is then presented whether the Probate Court, in the exercise of its plenary equity power, under the facts and circumstances of this case, was warranted in setting aside its former order and ordering a refund of the overpaid tax, as set forth in the executrix ’s application, ■

It is generally held that courts, in the exercise of equitable powers, will vacate or modify their judgments rendered through a mistake of fact as readily as on grounds of fraud.

If the record in this case supports the claim of the executrix, the Probate Court properly vacated its prior judgment and granted a refund of the overpaid tax.

The courts have repeatedly held that equity will grant relief where to deny it would work an injustice.

The intent of the statute is that a tax shall be levied upon the succession to any property passing to any person from a decedent’s estate. It is not the intent to levy and collect such a tax upon property which was not a part of the estate of a deceased person and never came into the possession of the executor, and where such a tax has been paid upon such property it will be refunded.

There is no vested right to inheritance taxes which have been paid and distributed to the state or a subdivision thereof such as prevents a refund of payment in excess of those warranted by law. State, ex rel. Ellsworth, Exr., v. Mong, Aud., 130 Ohio St., 483, 200 N. E., 516.

The record in the instant case is very brief, but the Department of Taxation does not dispute the facts as claimed by the executrix.

From the record, it must be conceded that through a mistake of fact there was listed in the application for determination of the inheritance tax, fifty shares of common stock in the Mission Oil' Company, valued at $1,937.50, which were in fact fifty shares of common stock in the Pension Oil Company, and of no value; also, that through a mistake of fact there, vyas listed in the application for determination of inheritance tax, United States Government bonds, valued at $400, which were not a part of the estate.

However, other bonds of the value of $300 listed in the executrix’s application for a refund, and included in the Probate Court’s order granting a refund, were not included in the application for the determination of the inheritance tax, and no tax was assessed or paid on them. Therefore, the court’s order granting a refund on these bonds was error.

The record supports the claim of the executrix that there was included in the application for determination of inheritance tax, certificate No. 1122, representing fifty shares of common stock,in Foundation Investment Company, and that through a mistake of fact this stock was listed as preferred stock valued at $3,500, when in fact it was common stock of the value of $150.

The executrix also claims that debts amounting to the sum of $4,400 were inadvertently omitted from the appraisement for determination of inheritance tax, and that such amount was owed to her by the deceased and represented loans she had made to the deceased.

Her claim was not included in the schedule of claims filed in the estate and was not presented to the court and allowed, as required by Section 10509-100, General Code.

The provisions of that section governing the manner of presentation and allowance of the claims of the executor against the estate which he represents are mandatory. Trustees of Masonic Temple Assn. of Sidney v. Emmons, Exr., 49 Ohio App., 87, 195 N. E., 259.

This claim not having been presented to the court and allowed, as required by the Code, could not be allowed as a deductible debt against the estate in the determination of the inheritance tax.

Appellant’s second assignment of error is well taken.

The record thus shows that the value of the estate, as reflected by the order determining the inheritance tax, was excessive in the sum of $5,687.50, and that the inheritance tax paid upon this amount vvas excessive in the sum of $455. Upon this sum, the executrix, at the time of the payment of the inheritance tax, was allowed a deduction of nine per cent, or a sum of $40.95, leaving an excessive payment of taxes in the sum of $414.05.

The executrix is therefore entitled to a refund in the amount of $414.05, without interest, fifty per cent of the amount from the state of Ohio and fifty per cent from the village of Celina and Liberty township, Van Wert county, Ohio.

Section 22 of Article II of the Ohio Constitution provides :

“No money shall be drawn from the treasury except in pursuance of a specific appropriation, made by law; and no appropriation shall be made for a longer period than two years..”

By the provisions of this constitutional prohibition the Probate Court was without .authority to order the state of Ohio to refund the overpayment of inheritance tax, in the absence of specific appropriation therefor by the Legislature.

The Probate Court did have authority to vacate its original determination of the inheritance tax and correct the same, and to determine the amount fcJie estate was overvalued, and the amount of inheritance tax overassessed, and the court had authority to order the village of Celina, and Liberty township, Van Wert county, Ohio, to refund to the executrix the amount of the excessive payment distributed to the above subdivisions.

Therefore, the order and judgment of the Probate Court is modified in the particulars herein set out and, as modified, is affirmed at costs of appellee.

Judgment accordingly.

Jackson and Guernsey, JJ., concur.