author: PIildebrant, J.

text:
    Board of Education of Lynchburg School District, Appellant, v. Pendleton et al., Appellees.
    (No. 154
    — Decided June 10, 1947.)

      Messrs. Smith <3 Kirlt, for appellant.

      Messrs. Hayes S Hayes and Messrs. McBride & McBride, for appellees.
   PIildebrant, J.

A suit to set aside the will of John Smithson resulted in a verdict and judgment sustaining the- will. The appeal is here on questions of law.

The principal errors assigned run to the weight of the evidence, the refusal of the lower court to permit examination of the defendant executor, as on cross-examination, by the plaintiff, the giving of defendants’ special charge No. 7, and the refusal to give plaintiff’s special charge No. 3.

The court finds from a careful reading of the whole record ample evidence to sustain the verdict and the judgment, and that the same are not against the manifest weight of the evidence.

The right to call defendant executor for cross-examination is based on Section 11497, General Code, which reads in part: “At the instance of the adverse party, a party may be examined as if under cross-examination, either orally, or by deposition, like any other witness.”

The executor was made a party defendant in compliance with the provisions of Section 1208Q, General Code, which are:

“All the devisees, legatees, and heirs of the testator, and other - interested persons, including the executor or administrator, must be made parties to the action. ’ ’

The question is whether the executor summoned into the action as a party defendant is an adverse party within the meaning of Section 11497, General Code.

Plaintiff argues that the position of the executor as a defendant in the caption, summoned as a party defendant in the case, coupled with the fact that the executor here was the scrivener of the will, a witness thereto and actively appearing at the triaj as of defense counsel in the case, places him in the category of an adverse party. Cited in support of that contention is the case Chaney v. Coulter, 29 C. C., 177, 35 C. D., 481, the first paragraph of .the syllabus of' ■which reads as follows:

“In an action to contest a will the scrivener may be called for cross-examination, where he is the-executor under the will and is made by the issues ■ raised to appear as an adverse party.”

From a reading of that case it appears that the' petition charged the defendant executor with the-fraudulent creation of'the will, concealment of its contents from testator, and either forging or fraudulently procuring the signature thereto, and contained a second cause of action seeking to enjoin certain acts of defendant as executor. A separate answer was filed by defendant executor so that the issues were raised by the pleadings, even though apparently the court made up the issue of the validity of the will for presentation, to the jury in the statutory way. Upon that record-the adversary position of the defendant executor clearly appeared.

Upon the record here, at the time defendant executor was .called as on cross-examination, no act of' his, either before, at or after the execution of the will, was impugned, questioned or made the subject of any allegation in the petition, nor did the subsequent proof. develop any basis therefor.

It is stated in the first paragraph of the. syllabus of Vance v. Davis, Agt., 107 Ohio St., 577, 140 N. E., 588:

“The parties to a cause are not determined solely by the caption in that cause, but from the entire record in the cause. ’ ’

By analogy we conclude that the record here and not the caption determines the position of the parties,, whether adversary, as well as who the parties are. In the case of Wright v. Schick, 134 Ohio St., 193, 16 N. E. (2d), 321, 121 A. L. R., 882, the Supreme Court looked to the realities as revealed by the whole record in determining the relative position of the parties. See, also, McCord v. McCord, 104 Ohio St., 274, 135 N. E., 548, wherein it is stated in the third paragraph of the syllabus:

“An executor named in a will, is not ‘united in interest’ with the heirs and devisees, and an action to contest a'will is not commenced as to the heirs of the testator and the devisees under the will by the issuance of a summons for the’executor, though duly served upon him.”

•. See, also, Myers, Exrx., v. Hogue, 45 Ohio App., 330, 187 N. E., 127, as bearing on this question.

Here, too, plaintiff made the witness its own, so it may be said it waived its prior claim, and from the testimony elicited on direct and cross-examination it appears that no prejudicial error intervened. The right of defendants’ counsel to cross-examine the witness is not open to question, and argument of counsel thereon, complained about, is not a part of the record.

Defendants’ special charge No. 7, given by the court, was:

“The fact that the defendant, Ira Pendleton, received substantial recognition in this will and the plaintiff received no portion of the property, is not of itself evidence of unsoundness of mind, or of undue influence. A person of full age and of sound mind and not under any restraint, may will his property to whomsoever he desires. You will not find this instrument not to be the last will and testament of John Smithson simply because you ihay think the provisions of the will just or unjust, reasonable or unreasonable; -but you will consider all its provisions, compare them with all the facts and circumstances with the sole purpose of determining whether or not at the time he made this will, he was of sound mind and not under any undue influence.”

Objection is mhde to the above charge as having the effect of withdrawing the provisions, of the will itself from consideration by the jury. In view of the specific instruction contained in the last sentence thereof to consider all the provisions of the will, the objection appears untenable.

The court refused to give plaintiff’s special charge No. 3 as follows:

“If you find from the evidence that at the time of the execution of the will of John Smithson dated December 15, 1945, which leaves all of his estate to Ira Pendleton, he, Ira Pendleton was acting as the guardian of John Smithson, even though he may not have been formally appointed as such guardian by the Probate Court until a few days later, then in the eyes of the law a confidential or fiduciary relationship existed between the said John Smithson and Ira Pendleton which raises the presumption' that such a will was the result of undue influence by Ira Pendleton on John Smithson and if this presumption is not rebutted by other evidence then your verdict shall be that the will of December 15, 1945, is not the last will and testament of John Smithson, deceased.” Plaintiff’s claim of a presumption of undue influence arises out of the fact that defendant Pendleton was appointed guardian of testator on December 18,1945, three days after the will was made.

The record reveals that certain well-intentioned neighbors, observing that testator and his aged sister with whom he lived, due to illness and the infirmities of age, were unable to properly feed and care for themselves in their home unaided, made application in the Probate Court of Clinton county for the appointment of a guardian for each of them' as incom1 petents. On notice of such application, testator had defendant Pendleton take him to the Probate Court, where he protested to the judge that he did not need a guardian and that there was nothing the matter with his mind. The judge explained a guardian could be 'appointed for physical disabilities alone, pointed out to him his failing eyesight and difficulty in walking, and that in such case he might choose his own guardian. Whereupon, he admitted his eye. condition, and, as he expressed it, that he could not get around much, and requested the appointment of defendant Pendleton as guardian. He then stated, referring to defendant Pendleton: “While we have been sick they have been bringing meals down to us, they have been sitting tip with us at night; and farming the land.” He said, “When I am done with it I want them to have, it all.”

The judge testified that in making the appointment, he did not consider or pass upon the mental condition of the testator.

Thereafter, testator requested defendant Pendleton to take him to Hillsboro, where the will was drawn in the office of McBride & McBride, who testified that all instructions were given by testator, and that defendant Pendleton, who was present, remained silent throughout.

The record shows defendant Pendleton was farming the Smithson land and was the nearest neighbor, and that he and his family, by force of these circumstances, were thrown closely in contact with the Smith-sons, during which time they were called upon to and did perform many acts of neighborly kindness for their well-being.

Do the above facts justify the requested charge?

It is stated in 41 Ohio Jurisprudence, 485, Section 341:

“As a general rule, the mere existence of confidential relations between a testator and a beneficiary under his will does not raise a presumption that the beneficiary has exercised undue influence over the testator, and does not cast upon the beneficiary the burden of disproving undue influence.”

In Haley v. Dempsey, Exr., 14 Ohio App., 326, it is stated in the fifth paragraph of the syllabus:

“The so-called presumption of undue influence arising from confidential relations between testator and beneficiary is a mere inference of fact and not a presumption of law regarding which the court should charge the jury.”

And at pages 331 to 333, speaking through Judge Shohl, this court said:

“It is claimed that where a confidential relation is established and a gift made to a person in whom confidence is reposed, and such person participates in the drafting of the will, or makes suggestions for drawing it, a presumption of fraud or undue influence arises which the proponent has the burden of proof to overthrow. The word ‘presumption’ is to some extent an ambiguous word, and many instances are found in the decisions in fraud cases, and in will contests, where it is used in more than one sense. Presumptions may be either of fact or of law. A presumption of law is a rule of law that a particular inference shall be drawn-by a court or jury from a particular circumstance. A presumption of fact is a rule of law that a fact, otherwise doubtful, may be inferred from a fact which is proved. (Lawson on Presumptive Evidence [2 Ed.], 639.) This distinction is adverted to in the case of Hutson v. Hartley, 72 Ohio St., 262, 268, 269, 270.

“Under the Ohio law the order of prohate is prima facie evidence of the due attestation, execution and validity of a will, and when the order of probate is introduced in evidence the burden of proof in respect to all of these subjects rests on the contestants of the will. Mears v. Mears, 15 Ohio St., 90, and Hutson v. Hartley, supra.

“In the further progress of the trial there is no such change in the burden of proof and law as to require the court in its charge to the jury to instruct them that in respect to any particular issue or items of evidence the burden of proof is thrown back from the contestants to the proponents.

‘ ‘ While it is argued here that the effect of a charge as now contended for does not affect the burden of proof, the effect of such a charge would be to require the court to instruct contradictory presumptions in respect to the same subject-matter at the same time. Hutson v. Hartley, 72 Ohio St., 262, 268.

“The so-called presumption of undue influence arising out of confidential relations is neither a conclusive presumption nor a presumption of law. It is a mere inference of fact which the jury may draw.

“ ‘While the jury may find undue influence as a fact from the fact that a beneficiary in confidential relations with testator drew the will, the court must .not charge the'jury as a matter of law so to find/ Page on Wills, Section 414, page 492. -

“See also Hall, etc., v. Hall, 78 Ohio St., 415, at page 416, where the Supreme.Court held that the trial court erred in giving a charge which in substance told the jury what weight they should give to a particular item of evidence of facts which constituted a confidential relation. See also the discussion in the decision (not the syllabus) in Graham v. Courtright, 180 Ia., 394, 405-416.

“It is for the jury to determine what inferences of fact are properly to be drawn from the evidence .adduced at the trial.”

In 2 Page on Wills (3 Ed.), 622, it is stated:

“The so-called presumptions of undue influence which arise out of certain classes of confidential relations between the testator and the beneficiary, and in some jurisdictions, in.connection with additional facts, are presumptions or inferences of fact, in most jurisdictions, and not presumptions of law. It is, therefore, not necessary and not proper to charge the jury that they must find undue influence unless the proponent has introduced evidence sufficient to rebut the presumption. ’ ’

Without extended comment or citation, may we point out that where the confidential relationship of guardian and ward is predicated on physical as distinguished from mental disability,. the implications with reference to undue influence are vastly different.' It has been held that the presumption arising would be exactly opposite to one of undue influence.

In harmony with the above authorities, we find no error in refusing to give the requested charge No. 3.

While fraud was argued to the court, we find no evidence whatever in the record -to substantiate such a charge, nor any error in the record, prejudicial to appellant.

The judgment is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Hornbeck, P. J.

license: Public Domain

text:
    Jacques, Admx., Appellant, v. The Dayton Power & Light Co., Appellee.
    (No. 1896
    — Decided January 31, 1947.)

      Mr. Chester B. Shook, Mr. Bichará T. Carroll and Mr. Andrew S. Iddings, for appellant.

      Mr. William Mills Matthews, for appellee.
   Hornbeck, P. J.

This is an appeal on questions of law from a judgment ■ dismissing plaintiff's second amended petition after a general demurrer thereto had been sustained. We hereinafter refer to the second amended petition as the petition.

Plaintiff’s action was for damages for the wrongful death of her husband who came to his death when a boom scoop came into contact with high-voltage uninsulated wires maintained and operated by defendant.

The demurrer was sustained by the Common Pleas Court upon the proposition that the petition of the plaintiff suggested her decedent’s contributory negligence, and that the inference thus produced was not countervailed by any proper.averment.

It is the claim of the plaintiff, that such conclusion was erroneous for two reasons, first, there is no sup-' port in law for the conclusion that contributory negligence may be inferred from the pleadings alone, and, second, the petition does not permit of the determination as a matter of law that plaintiff’s decedent was eontributorily negligent.

We cannot support the first contention of the plaintiff. It is altogether possible that a petition may aver such ultimate facts as there may be but one conclusion, namely, that the plaintiff was chargeable with contributory negligence which, as a matter of law, will preclude any recovery. However, such determination may be made only if and when the facts pleaded will permit of no other reasonable conclusion. If an inference may be drawn consonant with due care it must be indulged.

Although the demurrer was sustained on the theory ■ of the contributory negligence of plaintiff’s decedent, three questions are presented on the appeal, namely, first, what was the relationship of plaintiff’s decedent in his entrance into and upon the premises of Eby, second, was any actionable negligence chargeable against the defendant, and third, if so, was plaintiff’s decedent chargeable with contributory negligence as a matter of law.

Plaintiff insists that the action of the Common Pleas Court in sustaining the demurrer must be supported by the proper determination of all the foregoing-propositions.

The pertinent facts appearing in the petition are:

The defendant company carried high-voltage uninsulated wires over the land of Jacob and Emma A. Eby, and in a conveyance from the Ebys to the defendant. in January 1942 the defendant agreed that its wires would have a clearance above the ground on the Eby lands of not less than 25 feet.

Oh or about April 2, 1942, plaintiff’s decedent was authorized tq enter the Eby premises “by reason of a requisition issued to Charles IT. Sisson, United States marshal of the Southern District of Ohio, by the United States of America, under Act of October 16, 1941, by which the Metal Reserve Company, its servants, agents and employees, were to 'remove' certain scrap met^l located on said Eby farm, to be used for the war defense of the United States of America. That this decedent was authorized to enter said farm by the authorized agent of the purchaser of said scrap metal from the" government.

“That * f * while decedent * * * together with the driver of crane-truck to which ’ was attached a boom-scoop, was preparing to load said old scrap metal located on said Eby farm onto said truck, * * * in accordance with the aforesaid requisition, * * * said boom-scoop came into contact with high voltage uninsulated wires maintained and operated by this defendant corporation, *■* * causing the immediate death ■of decedent, Norman Jacques.”

The acts of negligence specified are the allowing •of the high-voltage uninsulated wires to sag to within a distance of 22 feet from the fiound in contravention 'of the-terms of the conveyance from the Ebys to the ■defendant that such wires should have a clearance of not less than 25 feet above the ground, the failure to properly supervise or inspect the wires, and the failure to post any signs or other notices by which the driver of the truck and decedent would be warned •of the danger involved.

It is urged by the defendant that, at most, plaintiff’s decedent was a licensee upon the lands of Eby (Hannan, Admr., v. Ehrlich, 102 Ohio St., 176, 131 N. E., 504; Eckert, Admr., v. Refiners Oil Co., 17 Ohio App., 221), and that, therefore, the obligation of the defendant to plaintiff’s decedent was only to refrain from wanton, wilful or reckless misconduct likely to injure him (Soles, Admr., v. Ohio Edison Co., 144 Ohio St., 373, 59 N. E. [2d], 138; Keller v. Ohio Public Service Co., 73 Ohio App., 530, 57 N. E. [2d], 176).

Plaintiff does not discuss this question in her brief but manifestly it is germane and essential because if defendant’s claim is correct, then the demurrer was properly sustained.

It is our judgment that, giving to the allegations of the petition a permissible interpretation, it may be said that plaintiff’s decedent was not a trespasser and licensee but that he was an invitee of Eby. It must be presumed, at this juncture, that the scrap iron which plaintiff’s decedent was about to remove from-the Eby premises was placed there by and with the consent and agreement of the Ebys, and the owner of the iron, his. agent, or representative had the right to remove it by any practical means of removal; and that the means-sought to be employed by plaintiff’s decedent and the-driver of the truck were customary means of loading and removing such scrap iron. It must be presumed,, until the contrary appears, also that any order made-by the federal district court authorizing the employer of decedent to enter upon the Eby premises to remove-the scrap iron was made with the knowledge of and with the full protection of the rights of the owner, Eby. Indulging the foregoing presumptions, it is logical and appropriate to conclude that plaintiff’s decedent and the truck driver were properly upon the premises of the Ebys by express or implied invitation. 29 Ohio-Jurisprudence, 464, Section 60. It is said that “licensees are persons whose presence' is not invited, but toleráted.” The test of an invitee relation is whether the person is invited onto the premises expressly or impliedly by the owner or occupier, for some purpose-of business or of material interest. Latham v. Richard Johnson & Nephew, Ltd. (1913), 1 K. B., 398, 82 L. J.. K B., 258, 108 L. T., 4, 29 T. L. R., 124.

Does the petition set up any specification of. actionable negligence? It is asserted that the defendant company permitted its high-voltage wires which were-uninsulated to sag to a distance of 22 feet from the-ground in violation of the teinns of the deed from theEbys, and that this sagging was of such consequence-as to cause the boom scoop to come in contact with the wires when otherwise it would have cleared them.. The conveyance-contract was made primarily for the benefit and protection of Eby and, undoubtedly, had for its purpose the protection óf not only Eby but of those who, at his invitation, were properly upon his' premises, from the danger of the overhead wires.

May the contract between Eby and the company be the basis of a tort action on the part of the plaintiff against the defendant? A similar question was considered in a well-reasoned opinion by Judge Vickery in Cleveland Ry. Co. v. Heller, 15 Ohio App., 346, and •cases are there cited from many jurisdictions, in support of the third proposition of the syllabus, which is:

“A person who is injured upon a street railway track by reason of a defect in the street, caused by the negligence of the railway company in allowing it to remain in such unsafe condition, in violation of its contract with the city, to keep that part of the street in constant repair, may maintain an action against such railway company for the injuries thus sustained.”

That authority supports the claim that', the Eby •contract may be the basis of the .tort action of the plaintiff against the defendant on the theory that her decedent was a third party for whose benefit the contract was made. It is urged that the status of plaintiff’s decedent under the contract was not like that of one of the public in the Heller case. We are not able to ■make such distinction. The Eby contract was made •not only for the protection of the owner of the land but for those who by his invitation were on the land •about their business which may have been for the mutual benefit of the owner and the lessee of the land.

It is urged that it is not negligence to maintain high-voltage wires uninsulated. This is true but the allegation of negligence is not the maintenance of -uninsulated wires but the maintenance of such wires at an unsafe distance from the ground in violation of ‘the terms of the contract and the failure to inspect the wires, or to warn those properly on the land of the unsafe condition: The averments of the petition, undenied and uncontradicted, state actionable negligence against the defendant.

The last question and the principal assignment of' error discussed is the contributory negligence of plaintiff’s decedent. Both parties cite, discuss at great length and rely upon the case of Henrick, Admx., v. Marion-Reserve Power Co., 141 Ohio St., 347, 48 N. E. (2d), 103. Let us analyze that case not only to learn what it adjudicates but also what it does not determine. The judgment of the Supreme Court was manifestly properly based upon the- proposition that the-facts appearing afforded no substantial support for an inference of any negligence against the defendant company. It did not rest upon any conclusion that plaintiff’s decedent there was chargeable with contributory negligence as a matter of law. The Hetrick case is authority to the effect that the trial court there-erred in submitting the cause to the jury and that the motion for a directed verdict interposed at the conclusion 6f plaintiff’s evidence and at the conclusion of all the evidence should have been sustained. Whether the appellate court which entered judgment for defendant based its conclusion in part upon the contributory negligence of plaintiff’s decedent does not appear from the record, but certain it is that the judgment of the Supreme Court was grounded upon the fact, which is stated in the last sentence of the opinion, that “the plaintiff failed to prove any actionable negligence on the part of the defendant and the judgment of the Court of Appeals therefore is correct and should be affirmed.” But it is contended that Judge Bell, on page 356 of the opinion, said:

“This record discloses that both telephone and light wires carry electrical energy; the difference-•is only in the'intensity of the current. We think that the presence of these suspended wires, in and of them- - selves, is a warning to the adult public of potential •danger.”

That statement was not carried into any proposition of the syllabus, was not necessary to the judgment .and did not require the conclusion that mere failure to refrain from coming in contact with wires strung along poles is contributory negligence as a matter of law. The difference is manifest in the • dangerous nature of a telephone wire and a wire charged' with •electrical energy used for power.

The rule is that generally the contributory negligence of one who receives an injurious shock or is killed by the sagging of an electric wire over the highway is for the determination of the jury. Annotation, 84 A. L. R., 694; 18 American Jurisprudence, 516, Section 120; 29 Corpus Juris Secundum, 606, Section 53.

In Ohio Power Co. v. Fittro, Admx., 36 Ohio App., 186, 173 N. E., 33, the defendants, distributors of electrical energy,' ran lines from Mt. Victory to West Mansfield on a public road". An automobile struck one of the poles along such line, broke it off and caused the wires to sag to within 5 to 6 feet of the ground. One man entering a ditch along the side of the road to render assistance came in contact with a- wire, and was electrocuted. Upon notice, a defendant shut off the current and thereafter the defendant was notified that the wires were clear and ten feet from the ground, whereupon the current was again turned on.' The defendant at the time made no further examination of the wires and placed no warning signs about them. Plaintiff’s decedent learning of the death as the result of the first accident, reached the scene of the accident about six o’clock in the evening, went to the east edge of the road in close proximity to the wires and was electrocuted by an arc of electricity from the wires. Upon those facts the court reannounced the well-recognized principle that a verdict for plaintiff may not be disturbed, unless it is manifestly against the evidence, where different conclusions are possible under conflicting evidence of plaintiff’s contributory negligence, and held that the deceased could not, under the facts appearing, be held, as a matter of law, chargeable with contributory negligence.

So, in the instant case, reasonable minds might differ under the facts appearing in the petition whether plaintiff’s decedent exercised due care at and immediately prior to the time .he was killed. Whether he knew of the presence of the wires, and, if so, should have known that they were highly charged with electricity, whether he should have known that the boom scoop was about to strike the wires, all are questions which must be determined in the light 'of the obligation of a reasonably prudent man under the circumstances appearing. Plaintiff’s decedent was not the operator of the truck, although he was in charge of the boom scoop and was directing the driver of the truck in his movements. Decedent’s position on the truck, whether he was facing the wires or whether there were any facts which would account for his failure to observe the wires, does not appear but contributory negligence is never presumed. On the contrary, the presumption is that plaintiff’s decedent exercised due care and was not at fault.

We cannot support the claim that the knowledge of the presence of suspended wires in and of itself was sufficient to charge plaintiff’s decedent with the further knowledge, that they were dangerous instrumentalities and charged with a high voltage of electrical energy.

We are cited to numerous cases to the effect that ■one who has knowledge óf a dangerous situation may not disregard it and, if he does so, is chargeable with •contributory negligence. Óf course, this is a sound principle, but the cases cited all will permit of the ■differentiation between a condition which, in the ■exercise of ordinary care, may or may not have been ■known to be dangerous.

We briefly consider some of the cases cited in defendant’s brief as authority for establishing the contributory negligence of plaintiff’s decedent. In Stackpole v. Pacific Gas & Electric Co., 181 Cal., 700, 186 P., 354, it is said in the opinion that “both Price and •his foreman k,new that the wires were power wires” which caused the death of Stackpole, and that it was •apparent “that the proximate cause of the decedent’s ■death was not any negligence on the part of the defendant, but was the negligence of Price.” A nonsuit there was granted on the second ground, namely, that •no negligence on the part of the defendant appeared.

In Boudreaux v. Louisiana Power & Light Co. 16 La. App. 664, 135 So., 90, plaintiff’s suit was dismissed on the ground that there was no negligence in the maintenance of the wires although they were uninsulated. The situation was similar in Morton’s Admr. v. Kentucky-Tennessee Light & Power Co., 282 Ky., 174, 138 S. W. (2d), 345, and Buell, Admx., v. Utica Gas & Electric Co., 259 N. Y., 443, 182 N. E., 77.

The judgment in Hayden v. Paramount Productions, Inc., 33 Cal. App. (2d), 287, 91 P. (2d), 231, was ^grounded upon the proposition that defendant company was not chargeable with any negligence proximately causing plaintiff’s injuries but that they were caused ■solely by the negligence of the plaintiff’s employer in ¿bringing its erane into a position where it could touch or come in dangerous proximity to the high voltage wires which were in plaintiff’s view and to which were attached warning signs, ail of which was within the knowledge of the employer.

In Simons v. Pacific Gas & Electric Co., 64 Cal. App., 74, 220 P., 425, it was manifest that plaintiff’s decedent knew that defendant’s 60,000-volt transmission line rah near decedent’s well. Notwithstanding that knowledge, decedent, while repairing his well, pulled a pipe out of the well, which pipe coming near the wires caused electricty to arc, resulting in the death. A demurrer was sustained to plaintiff’s petition.

• In Sweatman v. Los Angeles Gas & Electric Corp., 101 Cal. App., 318, 281 P., 677, there was no négligencé whatever on the paid of the corporation in the maintenance of its highly charged electrical wires but plaintiff’s decedent from the fifth floor of a building-under construction caused a metal rod to be extended out a window, over and into contact with the uninsulated wire. It was held that that occurrence was cyie which, in the exercise of reasonable care, the defendant company could not have anticipated.

In the instant case, the demurrer to the petition should have been overruled. The judgment is reversed and the cause remanded with instructions to overrule' the demurrer.

Judgment reversed.

Wiseman and Miller, JJ., concur. .


author: Putnam, J.

text:
    The State of Ohio, Appellee, v. Jones, Appellant.
    (No. 3930
    — Decided October 14, 1946.)

      Mr. Ralph J. Bartlett, prosecuting attorney, Mr. T. Vincent Martin and Mr. Edmund B. Paxton, for appellee.

      Mr. John A. Connor and Mr. Forrest F. Smith, for appellant.
   Putnam, J.

Lloyd L. Jones, a doctor, was indicted by the Franklin county grand jury on charges of abortion. The indictment contained six counts. No two counts involved the same woman, nor were any of the several women involved in the several counts in any way related. The counts were separated in point of time ■ about 14 months. After a motion for separate trials on the various counts was overruled, trial was had to a jury and defendant was convicted on all six counts. He was thereupon sentenced according to law..

This appeal on questions of law is brought to reverse that conviction. Seven grounds of error are alleged. The first five grounds have to do with the charge of the court to the jury and all are encompassed within the following language of the court as found in the bill of exceptions:

“Instrument, as has been used in the statute, does not mean a physician’s or surgeon’s tool or instrument. It does not have to be metal. It can be of any constituency so long as it is an instrument that would accomplish or bring about the results intended or desired, an implement or tool of any character.

“There has been adduced here evidence — I have forgotten the exhibit — referred to as a catheter. That is an instrument within the meaning of the statute, if all of the other elements were present, and it was used with the intent and purpose at the time it was used, if it was so used, and the results obtained.

“I have given to you the essential and constituent (elements of the offense, which I have said to you it is incumbent upon the state to establish by that, degree of proof heretofore indicated, before you can return a verdict of or find the defendant guilty of the particular or respective count under consideration; also the material facts incumbent upon the state to establish.

“Now, members of the jury, it is a.rule of law that one who aids,- abets, procures, conspires or participates with another in the commission of an offense against the law, is an accomplice.

. “If the defendant herein is found guilty of the count under consideration, and the offense therein alleged, the woman involved in such count is, in the eyes of the law, an accomplice. The court, with reference to the testimony of an accomplice, instructs you that their testimony should be approached with great care and caution. It is unwise and unsafe to convict upon the uncorroborated testimony of an accomplice.

“You will look, therefore, to see if there are corroborating circumstances or facts. It may be by direct or positive testimony, or it may be corroborated, such testimony may be, by .facts and circumstances in evidence before you. It may be corroborated by inferences or deductions, reasonable and logical inferences and deductions, drawn from established facts in evidence that in your opinion are warranted or justified or merited. The court cannot say to you what is corroborative. That is for your ascertainment and determination.

“I, in this connection, also instruct you that each count stands upon its own bottom and the corroborating circumstances or the corroboration must come from thé facts and circumstances in evidence with relation to the consideration of that particular count.

“The finding of the defendant guilty of a particular count under consideration is not evidence, members of the .jury, that he is guilty of any other count set forth in the indictment yet to be considered by you. However, I do instruct you that if the defendant is found guilty by you upon a particular count-, you may use that as reflecting, if you believe, it does reflect, upon the question of intent. ’ ’

Assigned error No. I.

The court erred in refusing to instruct the jury as requested by the defendant before argument in the six special requests submitted and again requested at the conclusion of the general instructions of the court to the jury.

Those six requests were all the same, except as the language was modified to make each applicable to its particular count in the indictment.

In the first place it is to be noted that there is no duty by the court in. a criminal case to give a special request before argument as there is in a civil case.

Second. While a request was made again, after the finish of the court’s charge, to give those special requests, it was not a request to give any particular portion or paragraph thereof but to give them as a whole. That was again denied.

Third. Defendant, upon being inquired of, by the court whether he had any further suggestions as to errors of omission or commission by the court in its charge, made none. The argument of defendant is that admitting all of the above, the special requests correctly stated the law and the court’s charge did not. Consequently, it was error to refuse to give them. 'It is -urged also that it was necessary to give them because of the fact, that six cases were being tried together and it was essential to stress to thd jury the necessity of each case standing on its own bottom. As to the latter, a careful reading of the entire charge, including the portion above quoted, demonstrates to our satisfaction that the court fully covered that phase of the case. The other matters will be considered in dealing with the other assigned errors as to the charge.

Assigned error No. II.

The second alleged error is that the court did not correctly instruct the jury on the subject of corroboration.

The defendant insists that what must be corroborated in the testimony of the alleged accomplices is the actual act of committing the abortive operation, that is the inserting by the defendant of the instrument into the uterus. Defendant contends that a proper charge on that subject in this case would be one based upon the principle announced in the case of Wertenberger v. State, 99 Ohio St., 353, 124 N. E., 243. Defendant incorporated elements of such a charge in his special requests.

We do not agree with that contention. The Wertenberger case was a prosecution of a teacher, under former Section 13671, General Code, for having had sexual intercourse with a female pupil. Under that section,, by the provisions thereof, the requirements as to corroboration were higher than those in the instant case. The pronouncements in that case have no application here. In discussing the subject of corroboration in cases requiring the same degree of proof as the instant case, the strongest language the courts have used is “ other evidence material to the issue. ” It is true the word ‘ ‘material ’ ’ does not appear in the coftrt’s charge.

In the case of State v. Maranda, 94 Ohio St., 364, at page 372, 114 N. E., 1038, the court states:

“* * * It has become the settled practice of our courts to advise juries not to convict upon the uncorroborated evidence of an accomplice, bnt no court will undertake to define- with precision and exactness how much corroboration shall be necessary, or how many elements of the offense charged the corroborating evidence shall tend to prove. It is enough if it tends to prove some material element of the offense. It would be an insuperable handicap to the state if the court were to charge that the corroborating evidence must prove guilt beyond a reasonable doubt, beyond a probability, or even establish a prima facie case. It is enough if under all the evidence, when considered and weighed by the jury, every essential element of the offense has been proven against the defendant beyond a reasonable doubt.”

In that same case Judge Wanamaker quotes from the case of State v. Leuth, 5 C. C., 94, 3 C. D., 48, which he designates as a leading Ohio case in which it is stated:

“This confession before the coroner was not a judicial confession, and it was necessary that tliere should be other proof of the corpus delicti; but it is not necessary that the agency of the accused should be proved by other evidence which alone would prove the guilt of the accused beyond a reasonable doubt.”

Thus it becomes readily apparent that “other evidence material to the issue” does not necessarily include the criminal agency of an accused, as claimed by the defendant. However, in addition, in view of the fact that in Ohio a jury may convict upon the uncorroborated evidence of an accomplice, and that the defendant was in fact convicted, we cannot see that the omission of that word was prejudicial. The court did instruct that it was unwise and unsafe to convict upon the uncorroborated evidence of an accomplice. See, also, State v. Lehr, 97 Ohio St., 280, 119 N. E., 730, and State v. Reichert, 111 Ohio St., 698, 146 N. E., 386.

Assigned error No. III.

The third assignment of error- is that the instructions given on the subject of the consideration the jury should give to the testimony of an accomplice were erroneous. This refers to the sentence in the charge above indicated, viz,

“If the defendant herein is found guilty of the count under consideration, and the offense therein alleged, the woman involved in such count is, in the eyes of the law, an accomplice.”

In the special requests of the defendant, in the second paragraph thereof, the following language appears:

“As to the first count of the indictment in the case the witness, Jacquelin Harris, has. testified that she solicited and procured the. defendant to commit, an abortion upon her, she is therefore, an accomplice.”

Defendant insists that the .charge as given is wrong and prejudicial to him, but that the charge as requested was right. The charge as given requires him to be found guilty before the witness is, in the eyes of the law, an accomplice. By what evidence? Must this be by other evidence? If not, how is the jury to proceed? Can it use the testimony of the witness at its face value, if it so desire, together with other testimony, to find the accused guilty, and then go back to the beginning of its deliberation and reconsider and apply a different rule and perhaps say he was not guilty?

In the charge as requested, how is the jury to proceed? To follow it literally the jury must assume1 or presuppose the guilt of the accused before it can find the witness to be an accomplice. However, that violates the rule of presumption of innocence and also the rule that there can he no accomplice without a guilty principal. ' s

That presents what seems to be a logical dilemma. This reminds us .of a celebrated trial in the court of Areopagus in ancient Athens concerning the contingent fee of one Protagoras, a teacher of oratory, with his pupil Evalthus. The contract was made that the fee was to be payable when Evalthus won his first ease. After a while the teacher pronounced the pupil proficient and the lessons ceased. The pupil claimed he was not finished. The teacher sued. While awaiting trial he boasted to his friends that he was hound to win. He said: “If the judgment is for me, ho must pay; but if it is for him he has won his first law suit and under the contract he must therefore pay.” However, the pupil-said to his friends, “I win either way, for if the judgment is for me, I am not liable, and if the judgment is against me, I have not yet won my first suit.” It is said the judges were so puzzled by those arguments that they adjourned the case for 100 years.

Such a ^solution, however, is not necessary in this case as Judge Marshall has provided the solution in the case of Curtis v. State, 113 Ohio St., 187, 148 N. E., 834. The ultimate question is just who would be prejudiced by which charge, if any prejudice resulted? In that case in the lower court the defendant had requested a charge '(No. 7) similar to the one requested by the defendant in this case,. In upholding the lower court’s refusal to give it, the court said, at page 209:

“Request No. 8 was in all respects similar to No. 7, except that it included Turner, G-oldfuss, Haas, Saunier, Lochary, Chinas and Economopolous.. There are two reasons why these requests were properly excluded. Whether or not these witnesses were accomplices was a question to he submitted to the jury, and that question was properly submitted to the jury as a part of the general charge under a proper definition '.of the word ‘accomplice.’ The jury was also to be the judge of the belief to be attached to their testimony. To single out one witness, or a number of witnesses, for either the prosecution or the defense, and to discuss their credibility, would be manifestly invading the province of the. jury. We are further of the opinion that if the^state had made this request, and it had been granted, or if the court had given this charge without a request on the part of the defendant, it would have been error.' Manifestly those parties could not be assumed to be accomplices of the defendant without assuming the guilt of-the defendant. There could be no accomplices, unless there was a conspiracy, .and there could he no conspiracy unless there was a plan in which the defendant had participated.”

According to that reasoning the requested charge was prejudicial to the defendant because it required the jury to presuppose the guilt of the defendant. Conversely, if those charges are antagonistic, the charge as given would be prejudicial to the state, not to the defendant.

What should he done % Certainly any attempt on the part of the court by detailed instruction to control the mental gymnastics of the jury would be vain. It is much like the situation existing in the old charges on “reasonable doubt” before the definition by statute. Then pages were devoted to that definition. The prolixity of words only added to that confusion of ideas. The safest rule is as stated by Judge Marshall: — define an accomplice and add the usual caution as to how his testimony is to he received. The charge on that point -as given, while not approved, is not prejudicial to the defendant.

Assigned error No. IV.

The fourth error assigned is that the court erred in instructing the jury that a catheter is an “instrument ’ ’ within the meaning of Section 12412, General Code.

That contention is based on the argument that there ■is no evidence in the record to show that a catheter •or a rubber hose is an instrument efficient to the production of .a, miscarriage. There is no merit in that contention. The record shows that each of these •women miscarried and that either a catheter or rubber .hose was used on them. Certainly that is evidence as to its adaptability to that use. The charge was justified.

Assigned error No. V.

The fifth error assigned is the instruction of the -court that a finding of guilty on any one count of the indictment could be considered by the jury as reflecting upon intent, in its consideration of any other counts -of the indictment.

The exact language used is set forth supra. Certainly “intent” is one of the elements of the crimes •charged. Section 13444-19, General Code, provides that .like acts may be proved, whether they are contemporaneous with or prior or subsequent thereto, for the purpose of showing intent. They need not be proven beyond a reasonable doubt. Scott v. State, 107 Ohio St., 475, 141 N. E., 19. Yet in that case the court went beyond the requirement and limited its use to counts upon which a verdict of guilty had been reached. The ■consideration was specifically limited to the question •of intent.

All that is obvious and the law well settled. How-ever, the argument is made that the subject of abortion in one count, after a finding of guilty is arrived at, is an accomplice as to the act of abortion in another count and the court should have so charged. There is ,no evidence that any of the subjects of abortion in one count had anything to do with the act of abortion in any other count. They could not have been accomplices. A charge that they were to be so considered would have been improper.

We have studied this entire record, and it is a complete one. We are convinced that the defendant had a fair trial; that the evidence shows him guilty beyond a reasonable doubt; that there is sufficient corroboration on each count to meet any requirements of the law; and that the verdict is not manifestly against the weight of the evidence; nor did the court abuse its discretion in refusing separate trials on each count. Substantial justice has been done. Let the judgment be affirmed. It is so ordered.

Judgment affirmed.

Sherick, P. J., and Montgomery, .J., concur.

Sherick, P. J., Putnam and Montgomery, JJ., of the Fifth Appellate District, sitting by designation in the Second Appellate District.


author: Wiseman, P. J.

text:
    Jackson et al., Appellees, v. Marshall et al., Appellants.
    (No. 1919
    — Decided April 24,-1947.)

      Messrs. Eyeps, Leyland & Patterson, for appellees.

      Mr. Joseph N. McGrath, for appellants.
   Wiseman, P. J.

‘This is an appeal on questions of law from the judgment of the Common Pleas Court •of Montgomery county, Ohio, reviving a judgment against the defendants, appellants herein, Gale B. Maury and Nettie B. Maury. The error assigned is that the order reviving the judgment is contrary to law.

The action was originally brought in 1932 by Davis S. Jackson and Margaret K. Jackson against Henrietta F. Marshall and others, in which action there was sought a money judgment and foreclosure of a mortgage on a certain tract of land which had been subdivided and platted and the lots sold to various persons, all of whom were made parties defendant. The defendants,. Gale R. Maury and Nettie B. Maury, purchased four lots from the Marshalls, and in the deed, as part consideration, the Maurys assumed and agreed to pay $1,000 of the bla’nket mortgage and the taxes and assessments. Judgment was taken for money due, and the mortgage was ordered' foreclosed. A special master commissioner was appointed to conduct the sale of all the lots in question. Only four lots were sold; the four lots owned by the Maurys and other lots owned by other persons were not sold for the want of bidders. No further effort was made to effect a sale. The money judgment became dormant.

Subsequently the plaintiff, ""Margaret K. Jackson, died, leaving the plaintiff, Davis S. Jackson, as her surviving spouse and sole heir-at-law, who died testate in 1944. The Third National Bank & Trust Company of Dayton, Ohio, was appointed executor of the last will and testament of Davis S. Jackson.

The record shows that Gale B. Maury was adjudged a bankrupt and received his discharge in bankruptcy in August 1940. The trial court found that the trustee in bankruptcy recognized the mortgage lien of the plaintiffs and because of the lien and the taxes due on the lots, the'trustee disclaimed all interest in the real estate. There is no bill of exceptions before ,the court. In the absence of a bill of exceptions this court is required to hold that the finding of the trial court was properly supported by the facts.

Later the four lots owned by the Maurys were sold for delinquent taxes. The sum of $1,349.51 was realized from the tax sale, over and above the amount due for taxes.

On August 5, 1946, The Third National Bank & Trust Company, as executor of the estate of Davis S. Jackson, filed a conditional order of revivor of the judgment. In this order it is first recited that The Third National Bank & Trust Company suggests the deaths of Margaret K. Jackson and Davis S. Jackson, and that it has been appointed and is still acting as the executor of the last will and testament of Davis S. Jackson. The court thereupon ordered The Third National Bank'& Trust Company as such executor substituted as plaintiff in the judgment aforesaid. Then follows a conditional order' of revivor of the judgment against the defendants, Gale R. Maury and Nettie B. Maury. The Maurys answered and set up the discharge in bankruptcy, that the plaintiffs should have sold the property under the order of sale in the foreclosure suit, and that the plaintiffs should be required to exhaust the real property before obtaining an order reviving a personal judgment.

The trial court ordered the judgment revived against Nettie B. Maury for the full amount due, to wit, $2,011.25. With respect to the defendant Gale R. Maury, the trial court revived the judgment only to the extent of the amount of money realized from the tax sale, to wit, $1,349.51, as that amount was covered by the lien of the plaintiffs’ mortgage. The trial court directed the amount to be paid to the executor of the estate of Davis S. Jackson, and further ordered that “upon application of said amount to plaintiffs’ claim, the judgment as to the said defendant, Gale R. Maury,, will be released.”

Thus it appears the trial.court recognized that the discharge in bankruptcy released the defendant Gale R. Maury from any personal liability under the judgment. The mortgage lien, held by the plaintiffs, also-was recognized and the court very properly ordered the amount realized from the tas sale applied in satisfaction of the lien. That was the extent of the liability of the defendant Gale R. Maury. The trial court so held and ordered the-.judgment released against Gale R. Maury upon the payment of the $1,349.51..

The defendants contend that the court was without authority to substitute The Third National Bank & Trust Company, executor under the will of Davis S. Jackson, as party plaintiff, as more than one year had elapsed after the death of Davis S. Jackson.

Section 11411, General Code, in part, provides:

“An order to revive an action in the name of the representative or successor of a plaintiff may be made forthwith, but shall not be made, of right, without the consent of the defendant, after the expiration of one year from the time it might first have been made.”

It is conceded that the order of revivor was filed more than one year after the time it might first have been made, and that the defendant did not consent thereto. It has been held that the provisions of Section 11411, General Code, are not exclusive. Regardless of the provisions of Section 11411, General Code, the court has discretion, after the period of one year has expired, to revive the action in the name of the personal representative of the deceased plaintiff. Pavey v. Pavey, 30 Ohio St., 600; Black v. Hill, 29 Ohio St., 86; Barr v. Chapman, 11 C. C., 196, 5 C. D., 46. See, also, Tuttle v. King, 13 N. P. (N. S.), 547, 30 O. D. (N. P.), 647, and Morris v. Schmidt, 8 N. P. (N. S.), 215, 19 O. D. (N. P.), 469.

Thus we find the law to be that upon the suggestion of the death of Davis S. Jackson the court had authority to substitute the executor of his estate as a party plaintiff, under the provisions of Section 11261 or Section 11402, General Code.

The order substituting the executor as a party plaintiff, although in the same entry in which the court made a conditional order of revivor of the judgment, was a complete and final order in itself. It was- not conditional, but final. - The better practice would have been to have filed a separate order; however, the fact that both orders were part of the same entry does not change the legal effect of the action of the court. The court very properly'exercised its discretion in ordering the substitution.

Since the rights of innocent parties have not intervened, we are of the opinion that the plaintiffs cannot be charged with laches in failing to sell the property under the order of salé, and in permitting the property to be sold at tax sal,e. The regularity and the validity of the tax sale are not in question.

The defendants, in their supplemental brief, raise a question which would have been a defense in the original action. Where the court rendering the judgment had jurisdiction of the parties and subject matter, a defense ydiich could have been set up in the original action cannot be set up in a proceeding to revive the judgment. We cannot in this proceeding recognize such a defense. 23 Ohio Jurisprudence, 1103, Section 929.

As we find no prejudicial error in the record, the judgment of the trial court is affirmed.

Judgment affirmed.

Miller and Hornbeck, JJ., concur.


author: Middleton, P. J. Guernsey, J.,

text:
    Harris, Appellant, v. Harris et al., Appellees.
    (No. 354
    — Decided August 1, 1946.)

      Mr. B. F. Welty and Messrs. Unverferth & Unverferth, for appellant.

      Mr. Charles L. Kaps and Mr. Claud L. Becker, for appellee Pauline Japel.
   Middleton, P. J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Putnam county, Ohio. --

The appeal is from a judgment of the Common Pleas Court dismissing Pauline Japel, one of the defendants, an appellee herein, as a defendant, for want of jurisdiction.

The action was begun by Lenore Harris against Hugh Harris, Eva Harris and Pauline Japel alias Pauline Harris.

Hugh Harris and Eva Harris are residents of Putnam county, and were there served. Pauline Japel is a resident of Cuyahoga county, and was served with summons by the sheriff of Cuyahoga county.

Subsequent to the filiilg of the petition and the service of summons on Pauline Japel in Cuyahoga county, she filed an answer reading as follows:

“Now comes the defendant Pauline Japel and for her answer to plaintiff’s petition filed herein denies each and every, all and singular, the allegations contained in plaintiff’s petition. Wherefore, having fully answered defendant prays she may go hence without day and recover her costs herein.”

Subsequent to the filing of that answer, plaintiff filed ' three amended petitions.

After filing her answer to the original petition, Pauline Japel did not file any further pleading nor did she take any part in the trial or subsequent proceedings in the case until she filed her motion upon which the court acted, and which brings the case into this court.

Upon the trial in the Common Pleas Court, the jury returned a verdict in favor of the plaintiff and against the defendants Hugh Harris, Eva Harris and Pauline Japel.

Motions for new trial and for judgment notwithstanding the verdict were filed by Hugh Harris and Eva Harris.

The court overruled the motion for new trial but sustained the motion for judgment notwithstanding the verdict, as to all three defendants.

From that order of the court, sustaining the motion for judgment notwithstanding the verdict, the plain-' tiff appealed to this court.

The court, on that appeal, made the following order, as shown by the journal of the court:

“This day this cause came on for hearing on the assignments of error, the briefs, the transcript, the original papers, pleadings and arguments of counsel.

“In consideration thereof the court finds that there is no error in any of the particulars assigned or argued in the brief of the appellant, as to the judgment in favor of the defendants-appellees Hugh Harris and Eva Harris and against the plaintiff-appellant and said judgment and proceedings as to the defendantsappellees Hugh Harris and Eva Harris is hereby affirmed at the costs of the plaintiff-appellant.

“On further consideration thereof the court finds that there is error insofar as the judgment in favor of the defendant-appellee Pauline Japel alias Harris against the plaintiff-appellant in that said judgment is contrary to law and said proceedings and judgment insofar as Pauline Japel alias Harris is concerned is hereby reversed and said cause remanded to the Court of Common Pleas for further proceedings according to law, at the costs of the defendant-appellee Pauline! Japel.

“To all of which findings and judgment said plaintiff-appellant Lenore Harris and defendant-appellee Pauline Japel except.

“There being reasonable ground for appeal no damages are assessed as a penalty.”

Thereafter, a motion was filed in the Supreme Court for an order directing the Court of Appeals to certify its record, which motion was overruled.

Subsequent to the remanding of the cause to the Court of Common Pleas, the plaintiff filed her motion for judgment upon the verdict against defendant Pauline Japel, and, at the same time, Panline Jape! filed a motion to dismiss the action against her for want of jurisdiction.

The motion of the plaintiff for judgment on the verdict was overruled, and the motion of the defendant Pauline Japel to dismiss the action for want of jurisdiction was sustained.

This action was instituted by the. plaintiff against the three defendants, charging them with a conspiracy to alienate the affections of her’husband.

The petition contains the following averment:

“Plaintiff further says that defendants Hugh Harris, Eva Harris and Pauline Japel alias Pauline Harris wilfully conspired against this plaintiff for the purpose of alienating the affections of her husband Delmar Harris.” x

The petition then goes on and sets out various- acts that plaintiff alleges were committed by the three defendants, and then avers:

“Plaintiff further says that all of said acts by defendants, as herein set forth, were wilfully and maliciously done for the purpose of defrauding this plaintiff, to her damage im the sum of $50,000. ’ ’

The allegations of conspiracy contained in the third amended petition, upon which trial was had, were contained in the original petition and all subsequent petitions, Eind are identical in form and ° substance except as to minor changes in phraseology.

It will be seen that from the inception of this case the plaintiff has maintained that the acts of the defendants constituted a conspiracy to alienate the affections of her husband and to deprive her of her marital rights.

It was on that theory of conspiracy that summons was served upon defendant Pauline Japel in Cuyahoga county.

While the petition leaves much to.be desired, it contained sufficient averments to charge a conspiracy, and it was on that theory of conspiracy that the case was tried in the Common Pleas Court, and on appeal to this court.

Holding as we do, that the petition charges a conspiracy, the next question is whether defendant Pauline Japel has done anything or failed to do anything which entered her appearance or prevented her from denying the jurisdiction of the court by the motion she filed to dismiss the action against her.

The answer filed by Pauline Japel is a general, denial.

The Supreme Court, in the case of Bucurenciu v. Ramba, 117 Ohio St., 546, 159 N. E., 565, laid down the rule as follows:

“Where the question of the jurisdiction of the court over the person of the defendant is one of fact, not appearing upon the face of the record, objection made thereto by answer of the objecting defendant as his' first act in the case is objection at the first opportunity and saves an exception to the jurisdiction.

“Where the jurisdiction of the court to acquire jurisdiction over the person of the defendant by service of summon§ in a foreign county appears only by the allegations of the petition, a general denial filed by such defendant challenges such jurisdiction, and under such general denial such defendant may at the same time and throughout the trial question both the jurisdiction and the merits of the cause.”

In the case of Gorey v. Black, 100 Ohio St., 73, 125 N. E., 126, it was held:

' “In order to give the court jurisdiction over joint defendants who are nonresidents of the county where suit is brought and for whom summons has been issued to another county, the averments of the petition and the proof on the trial must show that the plaintiff has a valid joint cause of action against the defendants on whom valid service is had as well as against the nonresident defendants.”

In view of that statement by the Supreme Court, Pauline Japel challenged the jurisdiction of the court-over her person at the first possible time, .and having challenged the jurisdiction of the court over her person in the answer there was nothing further that Pauline Japel could do or was required to do until it had been finally determined by 'the court that the plaintiff had failed to prove by the evidence a joint conspiracy.

The trial court found that insufficient evidence existed to show a conspiracy between Hugh Harris, Eva Plarris and Pauline Japel to alienate the affections of plaintiff’s husband. This court, on appeal,- also held there was insufficient evidence to support the claim of joint conspiracy.

When the court found from the evidence that a conspiracy did not exist, as alleged by the plaintiff, and dismissed the resident defendants, that was the first moment a motion by Pauline Japel to dismiss the action against her for want of jurisdiction could be decided in her favor.

The court did not have jurisdiction of the person of the nonresident defendant when it was found from the evidence that there was no conspiracy and dismissed the resident defendants. . The court, not having jurisdiction of the person of the defendant Pauline Japel, did not have jurisdiction to render any judgment against her, and any such judgment would be void.

The Court of Appeals remanded the cause to the. Court of Common Pleas for further proceedings according to law, and when the defendant filed her motion the case stood as it did when the jury returned its verdict.

The defendant Pauline Japel was not required to take any action in the case other than that taken by her. Her status was fixed by the general denial of her answer, and upon the filing of her motion to dismiss her upon. jurisdictional grounds, the court was required to sustain it and to dismiss her as a defendant.

Holding this view of the case, we find no error, and the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Jackson, J.,-concurs.

Guernsey, J.,

dissenting. This is an appeal on questions of la.w from a judgment of the Court of Common Pleas of Putnam county, Ohio, entered upon the journal of that court on March 16, 1946, in an action therein wherein the appellant herein, Lenore Harris, was plaintiff, and an appellee herein, Pauline Japel, was one of the three persons originally made parties defendants, the other two being Hugh Harris and Eva Harris, husband and wife.

In that judgment the Court of Common Pleas overruled the motion of the plaintiff, Lenore Harris, for a judgment on the verdict of the jury against defendant Pauline Japel, sustained the motion of defendant Pauline Japel to dismiss the action against her for want of jurisdiction and dismissed her from the action.

In the judgment entry it' is recited:

“The court'finds that the motion of defendant Pauline Japel is well taken, that the court had no jurisdiction of the person of the defendant, Pauline Japel, and that the service of summons upon her was invalid, she having been served as a nonresident defendant joined with resident defendants against whom there was a failure of proof on an allegation of the petition of a joint enterprise, and the motion is therefore granted and the action is dismissed for want of jurisdiction as to the defendant, Pauline Japel.”

The original petition in this cause was filed on May 27, 1943, and summons for the defendants Hugh Harris and Eva Harris, who are residents of Putnam county, was duly issued for and served upon them in that county. Summons for defendant Pauline Japel was issued to the sheriff of Cuyahoga county and duly served upon her.

Pauline Japel, on June 25, 1943, duly filed her answer to the petition, in which answer she denies, each and every, all and singular, the allegations contained in plaintiff’s petition.

Subsequent to the filing of the petition, the plaintiff filed first amended, second amended and third amended petitions, and the cause was submitted to a jury on the third amended petition and the answer of the defendants Hugh Harris and Eva Harris to the third amended petition. Pauline Japel did not file any answer to any of the amended petitions and did not participate in the trial of the cause.

This cause was tried to a jury in the Common Pleas Court during the month of December 1944, and on December 5 the jury returned a substantial verdict against the three defendants.

'Within the time limited by law, the defendants Hugh Harris and Eva Harris filed motions for a new trial and for judgment notwithstanding the verdict, and the court, on January 25, 1945, rendered judgment overruling the motion for a new trial, sustaining the motion for judgment notwithstanding the verdict, and adjudging “that the defendants go hence without day and recover from plaintiff their costs herein expended. ’ ’

Although the motion for judgment notwithstanding the verdict was made by only the defendants Hugh Harris and Eva Harris, the judgment sustaining the motion was not limited to them, but from the quoted language in the judgment it also applied to and operated as a judgment in favor of defendant Pauline Japel. .

The plaintiff, Lenore Harris, perfected her appeal to this court from that judgment of the Court of Common Pleas.

This court, on the submission of the appeal” from the Common Pleas Court, found no error in any of the particulars assigned and argued in appellant’s brief, insofar as the judgment in favor of the defendants Hugh Harris and Eva Harris and against the plaintiff was concerned, but found error insofar as the judgment in favor of defendant Pauline Japel alias Pauline Harris and against the plaintiff was concerned, in that the judgment, in the respects mentioned, was contrary to law. This court affirmed the judgment of the Common Pleas Court, insofar as the defendants Hugh Harris and Eva Harris were concerned, at the costs of the appellant and reversed the judgment, insofar as defendant Pauline Japel was concerned, at her costs, and remanded the cause to the Common Pleas Court “for further proceedings according to law, on the verdict of the jury.”

In the minutes of the decision of this court, the following recitals appear:

“A careful reading of the bill of exceptions fails to disclose any evidence tending to prove any conspiracy on the part of either Hugh Harris or Eva Harris to alienate the affections of their son Delmar Harris, or any evidence tending to prove any conduct on the part of either of them to cause the affections of their said son to be alienated, so the court did not err in rendering judgment in favor of defendants Hugh Harris and Eva Harris notwithstanding the verdict against them.

“While the action against the three defendants was based on conspiracy to alienate- the affections of Delmar Harris, and service of summons in said action was made on the defendant Pauline Japel in Cuyahoga county, Ohio, on the theory that she was jointly liable with the defendants Hugh Harris and Eva Harris who resided and were served with summons in Putnam county, Ohio, in the Common Pleas Court of which the action was instituted, by reason of such conspiracy, the said Pauline Japel alias Pauline Harris did not in any way object to the jurisdiction of the court .and entered her appearance by filing an answer in said action.

“Although the action was based on conspiracy and there was no evidence tending to prove conspiracy the allegations of the petition were broad enough to charge the defendant Pauline Japel with alienating the affections of Delmar Harris, and the evidence introduced was sufficient to sustain such charge, so the court erred in rendering judgment in her favor, notwithstanding the verdict, and the judgment so rendered was contrary to law.”

The journal entry of the decision of this court shows the affirmance of the judgment of the Common Pleas Court, insofar as defendants Hugh Harris and Eva Harris are concerned, shows the reversal, as contrary to law, of the judgment, insofar as the defendant Pauline Japel is concerned, and recites that the cause is “remanded to the Court of Common Pleas for further proceedings according to law at the costs of the defendant-appellee Pauline Japel.”

The plaintiff, Lenore Harris, duly filed her motion for certification of the record in the cause to the Supreme Court of Ohio. The defendant Pauline Japel did not perfect any appeal from the judgment.

The motion of the plaintiff, Lenore Harris, to certify the record was thereafter overruled by the Supreme Court, and the cause was remanded to the Court of Common Pleas of Putnam county.-

After the case was remanded to the Court of Common Pleas the proceedings were had which resulted in the judgment from which the present appeal is taken.

There are two questions presented by this appeal:

1. Whether the defendant Pauline- Japel is precluded by her failure to appeal from the judgment of this court reversing the judgment of the Common Pleas Court dismissing her as a party defendant to this action, as contrary to law, from having a judgment, similar to the judgment revers’ed, rendered in her favor by the Common Pleas Court, upon the case being remanded to the' Common Pleas Court for further proceedings according to law.

2. Assuming Pauline Japel is not thereby precluded, whether the Common Pleas Court erred in adjudging that because her fellow-defendants had been, adjudged not liable in the action, it did not have jurisdiction to render judgment against her and for that reason dismissing her as a party defendant to the action; and whether the court erred also in not entering judgment against her on the verdict of the jury.

These questions will be considered in the inverse order. .

2. Under the rule as laid down in the case of Gorey v. Black, 100 Ohio St., 73, 125 N. E., 126, it is apparent that the Common Pleas Court of Putnam county did not obtain jurisdiction over the person of the defendant Pauline Japel by reason of the service of summons on her in Cuyahoga county, since the Common Pleas Court adjudged that there was no liability on the part of the defendants Hugh Harris and Eva Harris as to the subject matter of the action, and consequently no joint liability of the defendant PaulineJapel with the resident defendants Harris which would authorize the service of summons on her in the-action, in Cuyahoga county, which judgment was affirmed by this court. If the court obtained jurisdiction over the defendant Japel at all it obtained it by the appearance of Japel in her filing of the answer to the-petition.

It was held in the case of Bucurenciu v. Ramba, 117 Ohio St., 546, 159 N. E., 565, relied upon by the defendant Japel, as warranting the Common Pleas Court in. rendering the judgment it last rendered:

“Where the question of the jurisdiction of the court over the person* of the defendant is one of fact, not appearing upon the face of the record, objection'made-thereto' by answer of the objecting defendant as his first act in the case is objection at the first opportunity and saves an exception to the jurisdiction. .

“Where the jurisdiction of the court to acquire-jurisdiction over the person of the defendant by service of summons in a foreign county appears only by the allegations of the petition, a general denial filed by such defendant challenges such jurisdiction, and-under such general denial such defendant may at the same time arid throughout_the trial question both the-jurisdiction and the merits of the cause. ’ ’

As .above mentioned, the defendant Japel filed a general denial to the petition. Consequently,- if it appears from.the allegations of the petition to which she-answered, that she was subject to being sued in the Common Pleas Court of Putnam county by reason of her joint liability with the resident defendants in the action, the answer by way of general denial to the petition challenged the jurisdiction of the court and she is entitled, upon her fellow-defendants being found and adjudged not liable in the action, to have judgment in ber favor on the ground that the court is without jurisdiction to render a judgment against her. On the other hand, if it appears from the petition that the allegations thereof do not charge her with joint liability with the other defendants, her answer did not challenge the jurisdiction of the court, and the jurisdiction •of the court not being challenged her appearance in the action by way of answer -constituted such an appearance as would give the court jurisdiction to render . judgment ’ against her.

It is therefore necessary to examine the allegations ■of the petition to determine whether they charge joint liability of her and the other defendants.

In the petition, the plaintiff alleges, in substance:

She was married to Delmar Harris on the 27th day • of October 1913, at .'Flint, Michigan, and three children, Beula Kathleen, Harry Allen, now deceased, and Margaret Elizabeth were born as issue of that marriage.

Delmar Harris is the son of the defendants Hugh Harris and Eva Harris.

After the marriage, Delmar Harris and Lenore Harris moved on and occupied certain real estate belonging to Hugh Harris, located in Putnam county, Ohio, ■and Delmar Harris farmed the same on shares until -June 1939.

■ Thereafter, plaintiff’s daughter, Margaret Elizabeth Kleinhens, and her husband, Robert Kleinhens, rented 'the premises.

Plaintiff is residing with her daughter and her husband.

The defendants Hugh Harris and - Eva Harris threaten to eject plaintiff from the home of her daughter unless plaintiff renounces her marriage covenant, with her husband, Delmar Harris, and permits him to ■secure a divorce.

The defendant Pauline Japel, alias Pauline Harris, has held herself out to the public where she resides at 5208 Erwin avenue, Maple Heights, Cleveland, Ohio, as the wife of Delmar Harris, husband of this plaintiff, during the last two years, and as issue of that union a child, Barbara Ann Harris, was born in December 1941 to defendant Pauline Japel and plaintiff’s husband, Delmar Harris.

In March 1943, Delmar Harris filed his petition against plaintiff for divorce in the Common Pleas Court of Cuyahoga county, Ohio, and on the 10th day of May 1943 the plaintiff filed her answer and cross-petition in the action for divorce, and the action is pending in Cuyahoga county Common Pleas Court on the petition and plaintiff’s cross-petition.

“Plaintiff further says that defendants Hugh Harris, Eva Harris and Pauline Japel, alias Pauline Harris, wilfully conspired against this plaintiff for the purpose of alienating the affections of her husband Delmar Harris.”

After Delmar Harris filed his petition for divorce, defendants Hugh Harris and Eva Harris wilfully and maliciously, by threats and otherwise, attempted to entice plaintiff to withdraw her answer and cross-petition in the Cuyahoga county court, renounce plaintiff’s marriage relation with Delmar Harris, permit their son Delmar Harris to secure a divorce from plaintiff on his petition, filed in the Cuyahoga county court, by default, and permit Delmar Harris to marry defendant Pauline Japel, alias Pauline Plarris.

Delmar Harris ceased farming the land belonging to the defendant Hugh Harris for the reason that the defendant Hugh Harris held some of the tenant’s portion under the contract.

The defendant Hugh Harris caused plaintiff’s husband to cease farming lands belonging to such defend-ant, and on May 23, 1939,- delivered a truck to Délmár Harris so as to permit him to leave plaintiff and in •order that he could remain away from the home of plaintiff.

The defendant Hugh Harris by his harsh and unjust treatment of his son in the mattér of the rents and profits, as hereinbefore set forth, caused Delmar Harris to become dissatisfied and discouraged as a tenant ■of Hugh Harris, and while in that state of mind Delmar Harris would frequently become intoxicated and this plaintiff was required to visit drinking places for. ■the purpose of securing the return of her husband.

After the marriage of plaintiff, and Delmar Harris, the defendants Hugh Harris and Eva Harris repeatedly and on numerous occasions accused the plaintiff of marrying their son for money and of being a “gold •digger.”

Delmar Harris has lived in adultery with the defendant Pauline Japel at 5208 Erwin avenue, Maple Heights, Ohio, and is guilty of bigamy under the laws •of Ohio, and the defendants Hugh Harris and Eva Harris, in order to avoid disgrace of the family name, threatened to eject plaintiff off of such premises if rshe would not withdraw her answer and cross-petition in the Common Pleas Court of Cuyahoga county, Ohio.

Delmar Harris and defendant Pauline Japel have ■held themselves out to the public during the last two years as man and wife and fraudulently filed the birth ■certificate of Barbara Ann Harris, alleging, in substance, that defendant Pauline Japel and Delmar Harris were legally married and that Barbara Ann was the legitimate issue of the marriage.

All such acts by the defendants, as set forth, were wilful and malicious and done for the purpose of de-' frauding this plaintiff, to her damage in the sum. of •$50,000.

After the above allegations, plaintiff prays defendant Hugh Harris be enjoined from evicting plaintiff from the premises so long as plaintiff is residing with her daughter and her husband on the premises by virtue of a contract as tenant of Hugh Harris; for damages in the sum of $50,000 for wilfully alienating the affections of her husband; and for costs and such other relief to which plaintiff is entitled in law and equity.

From an inspection of the allegations of the petition it will be noted that there are no allegations of fact showing any joint actions or any concert of actions between the defendant Pauline Japel and either of the-other defendants, or of any acts done by Pauline Japel and either of the other defendants, for which Pauline Japel and either of the other defendants would be jointly liable.

The allegation that' the defendants, Hugh Harris, Eva Harris and Pauline Japel, wilfully conspired against the plaintiff for the purpose of alienating the affections of her husband Delmar Harris, is merely a conclusion of law of the pleader, not warranted by the facts pleaded. To such a conclusion, the followjng rules of law apply:

A pleading properly should state the ultimate facts essential to the right of action or defense asserted, as distinguished from mere legal conclusions or conclusions of law. In the first place, it is the duty of the courts to declare the conclusions, and of the parties to state the premises. • Secondly, as applied to a complaint, an allegation of a bare conclusion'does not comply with the Code requirement that .the complaint set up a plain and concise “statement of the facts” constituting a cause of action. A bare allegation of a conclusion of law raises no issue. It need not be denied, nor is the truth thereof admitted by a demurrer. While a pleading is not rendered insufficient or materially affected merely because it contains legal conclusions in addition to the facts which properly belong in it, in general a bare conclusion is regarded as adding nothing to the value of a pleading. Allegations which stand as mere averments of conclusions of law or legal conclusions are, as a pleading, of no'legal effect or significance and are generally ignored in the construction and consideration of the pleadings of which they are a part. 41 American Jurisprudence, 300, 301, Section 16.

Nor can such allegation be considered as an allegation of actionable conspiracy, as there is no allegation of an overt act invading some recognized right and giving rise to a right of, action. 8 Ohio Jurisprudence, 42, 43, Section 3.

The allegation mentioned being of no legal effect or significance, the petition did not charge joint liability or concert of action of the defendant Japel with either of the other defendants, and consequently the answer by way of general denial did not challenge the jurisdiction of the court. The jurisdiction of the court was not challenged otherwise by the defendant Japel. The answer filed by the defendant Japel constituted an'Objection to the merits only and therefore constituted a general appearance by her, subjecting her to the jurisdiction of the court in the cause. 3 Ohio Jurisprudence, 19, Section 9; Redecker v. Munson, 24 Ohio Law Abs., 523.

For the reasons mentioned, the court erred in dismissing the defendant Japel as party defendant in the case, and also erred in not rendering judgment against her on the verdict of the jury.

1. The defendant Japel was one of the appellees on the appeal of the plaintiff, Lenore Harris, from the original judgment in this action.

The judgment dismissing her from the case was reversed by-this court as being contrary to law and the cause as to her remanded to the Common Pleas Court for further proceedings according to law, that is, the law of the case as established by the decision of this court.

The law of the case, as established by this court, was such as to require the Common Pleas Court, upon the case being remanded to it, to enter judgment against the defendant Japel on the verdict of the jury.

. The defendant Japel as one of the appellees in the case had the right to appeal on questions of law to the Supreme Court from the judgment of this court.

Such an appeal, under the new appellate practice, is similar to the filing of a petition in error under the former appellate practice and would not constitute a waiver of the question of jurisdiction of her person, as such waiver is implied only on appeal from the Common Pleas Court to the Court of Appeals in cases where a trial ele novo may be had in the Court of Appeals. Foster v. Borne, 63 Ohio St., 169, 58 N. E., 66.

As Pauline Japel had the right to appeal and did not appeal from the judgment of this court, she is bound by such judgment and is thereby precluded from hav■ing a judgment, similar to the judgment reversed, rendered in her favor by the Common Pleas Court.

For the errors mentioned, the judgment of the Common Pleas Court should be reversed, and this court, rendering the judgment the Common Pleas Court should have rendered on the motion of the plaintiff for judgment on the verdict, should render final judgment against her on the verdict of the jury, at her costs, and remand the cause for execution.


author: Guernsey, J.

text:
    Rainsburg, Appellant, v. Rainsburg, Appellee.
    (No. 984
    — Decided July 13, 1946.)

      Mr. Roy W. Roof, for appellant.

      Mr. Paul T. Mahon and Messrs. Gubhery, Harmon $ Conlde, for appellee.
   Guernsey, J.

This is an appeal on questions of law from a judgment of the Court of Common Pleas of Marion, county, in an action therein by change of venue from the Court of Common Pleas of Hardin county, wherein the appellant, Edith Rainsburg, was plaintiff and the appellee, David Rainsburg, was defendant.

The parties are residents of Hardin county, and the action was filed in the Court of Common Pleas of Hardin county, and later, on change of venue, was transferred to the court of Common Pleas of Marion county.

In her petition the plaintiff prayed for divorce from the defendant, for certain equitable relief, and for costs of the action.

Defendant filed his answer and cross-petition in the Court of Common Pleas of Hardin county. In his answer he pleaded facts amounting to a general denial; and in Ms cross-petition, after pleading facts constituting a cause of action on his behalf for divorce from the plaintiff, he pleaded, among ofher things, the following:

“Defendant further says that some years ago, he executed and delivered to the plaintiff a quitclaim deed for 22 acres of land, more or less, in Lynn township, Hardin county, Ohio. That although plaintiff now holds the legal title thereto by reason of such conveyance, nevertheless said transfer was without consideration and the defendant is in truth and in fact the owner of said real estate.

“Wherefore, defendant prays that plaintiff’s petition may be dismissed and that said deed for said real estate may be set aside and that the plaintiff be barred and divested of any right, title or interest therein. That he may be divorced from plaintiff and for all other necessary equitable relief.”

To the cross-petition, plaintiff answered by way of general denial, except she admitted that some years ago -the defendant had, in fact,, deeded to her by quitclaim deed the 22 acres of land located in Lynn township, Hardin county, Ohio, and'she. pleaded that she-held the legal title to that land by reason of such conveyance and that she was in fact the owner of the land.

She prayed in her answer that the cross-petition of the defendant be dismissed and that she go hence without day, and again prayed as in her petition.

The case was tried on the issues raised by those pleadings, before the Court. of Common Pleas of Marion county.

That court found, on the evidence adduced and the issues joined, in favor of the defendant upon his cross-petition for divorce, and dismissed the petition of the plaintiff. The court further found the jurisdictional facts necessary to the granting of a divorce to defendant, and further found, upon the evidence adduced, that the plaintiff had been guilty of gross neglect of duty toward defendant and that - by reason thereof defendant was entitled to a divorce as prayed for in his cross-petition. The court then adjudged and decreed that the marriage contract theretofore existing between Edith Rainsburg and David Rainsburg be dissolved and held for naught and that both parties be released from the obligations of the same. '

Following those findings and adjudications, the court made further findings and adjudications as follows:

“And the court, coming now to an adjudication of all the property rights of said parties, finds and decrees that the defendant shall pay the plaintiff the sum of thirteen hundred dollars within ten days from the date of this entry; and that contemporaneously with said payment, the plaintiff shall execute and deliver to the defendant a deed of general warranty, free and clear of all incumbrances, including taxes, for the twenty-two acres of land in Lynn township, Hardin county, Ohio, referred to in plaintiff’s petition.’’

The entry of judgment then sets forth a particular description of the real estate mentioned. Following that description, the following orders and adjudications were made, to wit:

“It is further ordered that upon the failure or default of the plaintiff to execute and deliver said deed, this decree operate as a conveyance of the above described lands.

“It is further ordered and decreed that the defendant pay the balance of one hundred dollars due on a certain note executed by the plaintiff to The Kenton National Bank of Kenton on August 7, 1945, together with the interest thereon.

“It is further ordered and adjudged that the plaintiff have and retain as her own property all the furniture and household goods formerly in the residence occupied by the parties.

“It is further ordered, adjudged and decreed that the plaintiff herein transfer and deliver to the defendant within ten days from the date of this entry, the following described property:

“One Dodge 1935 coupe. One General tractor, together with two-row cultivator. Three plows. One mowing machine. One disc harrow together with the various appliances and equipment used in connection with the same, and also, a chest of carpenter’s and mechanic’s tools, all of which personal property is now in the possession of the plaintiff in this case.

“It is further ordered and decreed that the plaintiff herein pay a certain doctor bill, in the amount of fifty dollars, to Dr. IT. E. Gibson, of Kenton, Ohio, for professional services rendered to her.

“It is further ordered that the plaintiff pay all the court costs incurred by her in this cause.”

Plaintiff assigns error in only one particular and this is: “That the court erred in requiring her to deed her individually owned real property to the defendant-appellee and also erred in requiring her to give possession to defendant-appellee all of the personal property of the parties and also of her individually owned personal property and wherein defendant-appellee did not pray or seek a judgment of the Court of Common Pleas for either alimony or support money.”

While the plaintiff contends that ,the defendant did not, in his cross-petition, pray or seek a judgment of the Court of Common Pleas for either alimony or support money, it will be noted from an inspection of the quoted portions of'defendant’s answer and cross-petition appearing above, that the prayer of defendant’s cross-petition contains a prayer for general relief.

In the third paragraph of the syllabus in the case of Julier v. Julier, 62 Ohio St., 90, 56 N. E., 661, 78 Am. St. Rep., 697, it is held:

“In an action for divorce, properly instituted, where the petition contains a prayer for general relief, the court has jurisdiction to adjust and settle the rights of the parties with respect to the nature and amount of the alimony that shall be awarded, and the terms and conditions of its payment * *

Following that decision, we hold that, as the defendant incorporated a prayer for general relief in his cross-petition, the Court of Common Pleas, on granting a divorce for the defendant’s wife’s aggression, had jurisdiction to adjust and settle the right of the defendant husband with respect to the nature and amount of the alimony that should be awarded to him, and the terms and conditions of its payment.

As the divorce was granted by reason of the aggression of the wife, the power of the Court of Common Pleas to adjudge her a share of the husband’s real or personal property, or both, and the allowance of alimony to the husband, is governed by the provisions of Section 11993, General Code, which reads as follows:

“When the divorce is granted by reason of the aggression of the wife, the court may adjudge to her such share, of the husband’s real or personal property, or both as it deems just; or the husband shall be allowed such alimony out of the real and personal property .of the wife as the court deems reasonable, having due regard to the property which came to the wife by.marriage, and the value of her real and personal estate at- the time of the divorce. Such alimony may be allowed to him in real or personal property, or both, or' by decreeing to him such sums of money payable either in gross or by instalments, as the court deems equitable. ”

It will be noted that under the provisions of that section, when the divorce is granted by reason of the aggression of the wife as was done in the instant case, the court may adjudge to her such share of the husband’s real or personal property, or both, as it deems just, and may allow the husband such alimony out of the real and personal property of the wife as the court deems reasonable, having due regard to the property which came to the wife by marriage and the value of her real and personal estate at the time of the divorce, and that such alimony may be allowed to the husband in real or personal property, or both, or' by decreeing to him such sums of money payable either in gross or by instalments, as the court deems equitable.

The Common Pleas Court, therefore, had jurisdiction to adjudge to the plaintiff wife as her share of her defendant husband’s real and personal property, the property which it adjudged to her under the terms of the judgment. hereinbefore quoted; and it also had jurisdiction to allow to the defendant husband, as alimony, the real and personal property which it adjudged to him; and, as a method of carrying its judgment and decree into effect, had the right to provide that upon ■failure ‘or default of the plaintiff to execute and deliver to the defendant a deed for the real estate adjudged to him as alimony, its decree should operate as a conveyance of the real estate.

As will be noted from an inspection of the judgment entry, the court, immediately preceding its judgments and decrees allocating property to the parties severally; uses the expression: “And the court, coming now to an adjudication of all the property rights of said parties, finds and decrees.”

While the court, in its judgment entry, does not designate the property allocated to the wife as her share of the husband’s real and personal property, and does not designate the property allocated to the husband as alimony allowed him out of the real and personal property of the wife, it must be presumed, the contrary not appearing in the-entry of judgment, that the court acted in conformity with the provisions of Section 11993, General Code, and within the scope of its jurisdiction in the allocation of such property to .the parties severally, and that the property adjudged by it to the wife is such share- of the husband’s real and personal property as the court deemed just, and the property adjudged to the husband was allowed him as alimony out of the real and personal property of the wife, as the court deemed reasonable, having due regard to the property which came to the wife by marriage and the value of her real and personal estate at the time of the divorce. '

The identical' question raised by the assignment of error in this case was considered and decided in the same manner this court has decided it, in the case of Ball v. Ball, 47 Ohio App., 547, 192 N. E., 364. See, also, Kreigbaum v. Kreigbaum, 45 Ohio Law Abs., 548, 68 N. E. (2d), 121.

As the allocation of property to the parties severally was made in conformity with the provisions of Section 11993, General Code, the assignment of error above mentioned is without merit.

The judgment of the Common Pleas Court will, therefore, be affirmed at the costs of plaintiff, and the cause remanded to the Court of Common Pleas for execution.

Judgment affirmed.

Middleton, P. J., and Jackson, J., concur.