author: Stuart, J.

text:
    In re Guardianship of Zimmerman et al.

      (No. 4059
    Decided March 19, 1945.)

      Mr. Ralph Emery and Mr. George Tl. Lewis, for appellees.
    ■ Mr. Louis R. Young, for appellant.
   Stuart, J.

This is an appeal on questions of law from the final orders and judgment of the Probate Court of Lucas county, Ohio, determining an accounting of the guardianship of the estate of three children of Mrs. Celia Zimmerman, who at the time of the commencement of the proceedings in the Probate Court were minors.

Mrs. Celia Zimmerman was, on May 10, 1926, appointed by the Probate Court of Richland county, Ohio, administratrix of the estate of her husband, Max Zimmerman, who died May 3, 1926, the father of their three minor children, Stanley Zimmerman, Florence Zimmerman and Sylvia Zimmerman. Stanley Zimmermán and Florence Zimmerman became of age on or about December 11, 1937. Florence Zimmerman has since married and is now Florence Zimmerman Schall. Sylvia Zimmerman married when she was about eighteen years of age, becoming Sylvia Zimmerman Remer and became of age on or about January 16,1930. Mrs. Celia Zimmerman died on or about April 28,1936.

The administratrix filed her final account therein and was discharged by that court in December 1927. Attached to and filed with her final account were three receipts, dated October 11, 1927, signed by Celia Zimmerman and William H. Gunckel as joint guardians of such minors, for the sum of $8,764.24 each, representing the distributive share of each of the minors respectively therein, Celia Zimmerman and William H. Gunkel having been appointed such joint guardians by the Probate Court of Lucas county, Ohio, in which county the minors then resided, and duly qualified as such with the Massachusetts Bonding & Insurance Company as surety in the sum of $25,000.

This matter was before this court in cause No. 3826 on appeal on questions of law from the order of the Probate Court settling the account of William H. Gunckel as one of the guardians of the estate of the children of Mrs. Zimmerman. William H. Gunckel had filed an account stating that he had received no funds on behalf of the wards, to which exceptions were filed on their behalf. The exceptions asserted that he liad received funds of the wards but the Probate Court found that he had received no such funds. This court reached the same conclusion and affirmed the finding of the Probate Court.

The case was taken to the Supreme Court of Ohio by appeal on questions of law and the allowance of a motion to certify. The decision of the Supreme Court is reported in the case entitled In re Guardianship of Zimmerman et al., Minors, 141 Ohio St., 207, 47 N. E. (2d), 782. The judgment was reversed and the case remanded to the Probate Court for further proceedings according to law.

After the case was remanded by the Supreme Court to the Probate Court, Louis R. Young, an attorney at law, who had been appointed administrator of the estate of Celia Zimmerman, deceased, at the instance of attorneys for the three children, filed an account purporting to be on her behalf as one of the guardians of Stanley Zimmerman, Florence Zimmerman and Sylvia Zimmerman, and stating “that said decedent in her lifetime received the following sums of. money as joint guardian of the property of Stanley Zimmerman, Florence Zimmerman and Sylvia Zimmerman:

‘ ‘ Oct. 11,1927 on behalf of Stanley Zimmerman $ 8,764.24

Interest to August 11, 1943 13,140.33

‘ ‘ Oct. 11,1927 on behalf of Florence Zimmerman 8,764.24

Interest to August 11,1943 13,140.33

“Oct. 11,1927 on behalf of Sylvia Zim- ' merman 8,764.24

Interest to August 11, 1943 13,140.33

“Total receipts $62,712.71

“Total disbursements none

“Balance due wards $62,712.71”

Exceptions were taken to this account by tbe bonding company and upon hearing thereon, and further proceedings in accordance with the mandate of the Supreme Court on the exceptions formerly taken to the account of William H. Gunckel by the children of Max and Celia Zimmerman, the exceptions of the bonding company were overruled, the exceptions of the children sustained and judgment rendered in favor of the children against William H. Gunckel and Louis R. Young as administrator of the estate of Celia Zimmerman, deceased, for the sum of $65,067.50 with interest at the rate of six per cent per annum, and notice of appeal therefrom wg,s duly filed by the bonding company, Gunckel, and Young as such administrator, but no further proceedings were taken by him.

Although no motion to dismiss the appeal of the bonding company was filed herein,, appellees, on the argument, challenged its right to appeal for the reason that no judgment was rendered against it in favor of the appellees.

Section 10506-37, General Code, provides that exceptions to an account “may be filed by any interested party,” and inasmuch as Section 11652,'General Code, provides that “Sureties on the bond of an executor, administrator, guardian, or trustee, may be made parties to a judgment thereon against the principal, by action,” the overruling of its exceptions to the account was a final order as to it in the proceeding.

The Supreme Court having remanded the case “to the Probate Court of Lucas county for further proceedings according to law,” the fact that thereafter a surety filed exceptions to a subsequent account made by the representative of a deceased joint guardian did not expunge or extinguish the proceedings theretofore had therein and therefore appellant’s objections to the consideration thereof by the Probate Court on the further hearing are not well taken.

The refusal by the trial court to state its findings of fact separately from its conclusions of law is assigned as error.

While the Supreme Court has said that the provisions of Section 11421-2, General Code (formerly numbered Section 11470), confer a substantial right and are mandatory, in Oxford Township v. Columbia, 38 Ohio St., 87, it said, at page 94 :

“This provision is one of much importance, and it is in no sense directory. That there was no proper compliance with the request is admitted; and it is clear to us that the action of the court in that respect affords ground of reversal, unless it be shown that the plaintiffs were not prejudiced thereby. But we are of opinion that it is shown that there was no such prejudice as to call for a reversal on that ground. The record contains all the testimony offered on the trial, and .objection is made that the judgment below is opposed to the weight of the evidence. In deciding the case, therefore, we necessarily ascertain the facts.”

In the case of Bauer v. Cleveland Ry. Co., 141 Ohio St., 197, 47 N. E. (2d), 225, decided March 3, 1943, the court, at page 201, reiterated this declaration, citing Oxford Township v. Columbia, supra, and Cleveland Produce Co. v. Dennert, 104 Ohio St., 149, 135 N. E., 531, as authority therefor, and at page 203 says:

“A further purpose of such findings of fact is to avoid the necessity of an extended bill of exceptions on review.”

We have before us a complete bill of exceptions and it does not appear from the record herein that appellant was prejudiced by such refusal.

The Supreme Court says in paragraph two of the syllabus in the case at bar (In re Guardianship of Zimmerman, supra), the Probate Court has plenary power “to require such guardian to account not only for all of the estate of Ms ward wMch came into the guardian’s hands but as well for all the estate of his ward which should have come into his hands through the exercise of reasonable diligence and that care of his ward’s estate which a reasonable man would have used in the conduct of his own affairs.”

And again at page 222 of its opinion:

“The record in the instant case discloses no facts which would excuse Mr. Gunckel under the doctrine of State v. Guilford, 18 Ohio, 500.”

It further says, at page 223:

“What the final record in the case may disclose we do not know but under the record as it now stands this fiduciary, after having solicited the appointment and having receipted for substantial- sums of money on behalf of his wards, cannot be heard to say that the estates of these wards are no concern of his and that he fully accounts for same when he says that contrary to his receipt and his duty in the premises, he received nothing and is not liable to account for anything.”

Celia Zimmerman, when appointed a guardian herein, was administratrix of her deceased husband’s estate from which the assets of the wards’ estates derived. The first paragraph of the syllabus of the Supreme Court’s opinion reads as follows:

“1. Under Section 10917, General Code (108 Ohio Laws, pt. 2, 1162), in effect prior to January 1, 1932, no person who at the time was or had been an administratrix or executrix of a last will prior to the approval of her final account as such executrix or administratrix might be appointed a guardian of the estate of a.minor who was interested in the estate administered upon or entitled to an interest under and by virtue of such will. ’ ’

On page 212 of its opinion in this case, the Supreme Court says:

“ * * * the appointment of the mother may have been void, with the result that she may have been a de fado guardian,”

And again on page 226:

“If it is found that the mother was only a guardian de fado, her personal representatives may be still held to account. Even though it be held that the mother was not even a guardian de fado, her personal representatives may still be called upon to account under Section 10506-67,' General Code.”

The court sets forth in full the section referred to, which prescribes proceedings against any person suspected of having concealed, embezzled or conveyed, away any effects of an estate.

The Probate Court found that she was at least a de fado guardian. Whether she was a guardian de jure, de fado, or neither, she obtained the assets of her wards under color of the appointment for which she was able to qualify by the act of the bonding company in becoming her surety.

Stale v. Carter, 67 Ohio St., 422, 66 N. E., 537, was decided upon exceptions of the prosecuting attorney to the several decisions of the trial court in the trial of Carter upon an indictment for the embezzlement of monies which it was alleged came into his possession by virtue of his office as clerk of the village of Madisonville. It was the contention of the defendant, sustained by the trial court, that the ordinance providing for the payment of certain assessments to him as clerk was void and that'the monies did not come into his hands by virtue of his office. The Supreme Court says, at page 437 therein:

“Carter, the village clerk, availed himself of the provisions of the ordinance so far as to receive from the village taxpayers sums of money which they were required to pay within a certain period to avoid certification of the same by him to the county auditor. He did this under at least colorable authority, and gave receipts as the clerk of the village. Is it any defense to his embezzlement of these funds for him to say the ordinance is invalid! By its provisions he agreed and undertook to be the servant and agent of the village in collecting and disbursing these assessment funds. He discharged that part of his engagement which relates to the collection of the moneys, and after pocketing the same, he asserts that there is no valid law to punish him for embezzlement. Such a defense is brazen, if nothing more.

“Some courts have denied such a defense on the doctrine of estoppel, which they are willing to apply to this class of crimes, as well as in civil actions.”

And again at page 438 of that report:

“If the ordinance was recognized by the clerk as sufficient authority for him to obtain control and possession of the public money, he acted upon it as a valid ordinance, the same as did the lot owners in paying to him their assessments. If it was sound enough to enable him to receive the money, it was sound enough to ‘charge’ him with its safe-keeping and disbursement; and if so ‘charged,’ and he converted the funds to his own use, he is' guilty of embezzlement. ‘If he was officer enough to receive the money, he was officer enough to be punished for embezzling it,’ — as said by the court in one of the above cases.”

And on page 439, the court quotes from State v. Pohlmeyer, 59 Ohio St., 491, 52 N. E., 1027:

“ ‘And the rule that one who receives money or any other thing of value in the assumed exercise of authority as agent for another, is estopped thereafter to deny such authority, applies in criminal prosecutions as well as in civil actions.’ The application of the foregoing to this case is apparent.”

It will be borne in mind that State v. Carter, supra, was a criminal case in which, unlike the instant case, the responsibility of the defendant had to be established beyond a reasonable doubt.

The Supreme Court further says in the Zimmerman opinion, supra, at page 215:

“Passing to the Ohio statutory law, a guardian of the estate of a minor is appointed to take care of the estate in the manner prescribed by statute. If the guardian fails, so to care for the estate of his ward and through such negligence loss results to the ward, the guardian and his bondsman are liable to account for that portion of the ward’s estate so lost.”

And on page 224 of the opinion:

“The Probate Court has a plain duty and plenary power to require Mr. G-unckel, if he be the sole guardian, either by virtue of original appointment or survivorship, and both of the guardians, through the personal representative of the deceased one, if appropriate, to account fully for their care or lack of care of the assets belonging to the estates of these wards. It is the duty of the Probate Court to fix the liability, if any, to the wards of these guardians, and each or either of them, and their bondsmen.”

This the Probate Court has done.

Finding no prejudicial error apparent on the record, the judgment of the Probate Court is affirmed.

Judgment affirmed.

Carpenter and Conn, JJ., concur.


source: Caselaw Access Project

author: Sherick, J.

license: Public Domain

text:
    Sherrets, Admx., Appellant, v. Tuscarawas Savings & Loan Co. et al., Appellees.
    (No. 731
    Decided December 12, 1945.)

      Mr. J. G.'Mitchell and Mr. Jonathan Rare, for appellant.

      Messrs. Bowers, Stafford S Bowers, for appellee Tuscarawas Savings & Loan Company.
   Sherick, J.

Plaintiff, administratrix, filed her petition in the Probate Court, and thereby sought to obtain its declaration of her rights to certain corporate stock which is claimed to be the property of the estate.

After pleading her administrative qualifications, the Tuscarawas Savings & Loan Company’s corporate capacity, and that Ward was the receiver of the Whitehaven Park Association, having been duly appointed by the Common Pleas Court of Cuyahoga county in a proper procóeding, it is averred that plaintiffs decedent, during her lifetime, entered into a verbal agreement with Whitehaven Park Association of Cleveland, Ohio, wherein she agreed to pay it $900 for certain burial lots; that in return therefor decedent was to receive certain guaranteed dividends and premium checks from a fund to be created by resold lots; that decedent paid the sum stated and received a deed for certain lots and certain guarantees; and that she surrendered her deed for resale for which she was to receive certain consideration in money.

Further it is pleaded that a portion of the $900 agreed to be paid by decedent was paid by three shares of stock of the loan company held by her and which she endorsed and surrendered to the park association, and which were of the value of $225.

It is averred that the park association never paid the dividends to her although a fund had been created for that purpose; that all decedent received was excuses; that the park association’s affairs were placed in receivership prior to plaintiff’s appointment; that its transactions were fraudulent; and that.its records have mysteriously disappeared, including decedent’s stock certificate.

It is averred further that decedent made demand on the loan company to issue to her new certificates of stock for the three shares still appearing in her name on the loan company’s books, which it refused for the reason that decedent could not surrender her old certificate although she fully explained its fraudulent loss and destruction; that decedent performed all of her part of the agreement, but that the park association refused to pay dividends and premium checks for lot sales as agreed; and that it fraudulently destroyed her stock certificate and deprived decedent of her consideration money.

Plaintiff concludes with the averment that she is entitled to the three shares of stock in the loan company together with dividends as the property of Viola Bell, the same to be administered as a part of her estate.

Defendants were served with summons in their respective counties of Cuyahoga and Tuscarawas. Neither filed any pleading in the case. The judgment entered was uppn default. The transcript contains a paper, denominated a default entry, which contains a declaration in plaintiff’s favor, that is, that the averments of plaintiff’s petition are found to be true .and by reason thereof, the receiver is barred from asserting any right, interest or title to the. three shares of stock, and that plaintiff is found to be entitled to the immediate possession of the same. The only order made is that the loan company is to reissue the three shares of stock to plaintiff.

That entry is signed by plaintiff’s counsel and the loan company’s counsel. The court, however, refused to sign such tendered entry; but prepared one which is signed by the court and duly journalized. It is from this entry that plaintiff appeals. It recites that both defendants are duly served with summons, and that the court did not ‘hear any evidence. It i's found therein that the ‘ ‘ petition shows on its face that plaintiff has other adequate equitable remedy and that action, by way of declaratory judgment, is unnecessary in order to afford speedy relief and to protect plaintiff’s claims. The court finds that said petition does not state sufficient facts to entitle plaintiff to the relief prayed for.” The petition was, therefore, dismissed.

It is perceived that the trial court reached its conclusion upon two reasons, the first of which is hardly tenable. It is held in Schaefer v. First Natl. Bank of Findlay, 134 Ohio St., 511, 18 N. E. (2d), 263; Radaszewski v. Keating, 141 Ohio St., 489, 49 N. E. (2d), 167; and Freiden v. Western Bank & Trust Co., 72 Ohio App., 471, 50 N. E. (2d), 369, that the right to a declaratory judgment is not dependable upon whether a remedy exists at law or in equity, but that it is an alternative remedy in a proper case.

In regards to the second reason, it is assumed that the insufficiency found was perhaps due to lack of an averment that plaintiff had first obtained leave of court to sue the receiver. In 34 Ohio Jurisprudence, 1079, Section 167, there is stated the general rule “that a receiver cannot be sued, in the absence of statutory authority, without leave of the court that appointed him.” The reason is obvious, for such a course is in fact a suit against the appointing court. The receiver is merely the agent of that court. However, it is held in Tobias v. Tobias, 51 Ohio St., 519, 38 N. E., 317, that a failure to obtain such leave does not affect the jurisdiction of the court in which the suit is brought, but that the requirement is for the receiver’s protection, that he may waive, the requirement, and that the question is in fact one of contempt, and not of jurisdiction. It will be noted from 45 American Jurisprudence, 364 and 365, Section 457, that some courts engraft an exception upon the waiver rule, declaring that where “the suit tends to interfere with the receiver’s possession of the insolvent’s assets, failure to obtain leave to sue is jurisdictional.” Inasmilch as our Supreme Court has never reported an encounter with a state of facts exhibiting the exception to the waiver question when a receiver is sued without leave of the court appointing him, in another jurisdiction, we are hesitant to declare such an exception, as there exists a very conclusive reason why the trial court reached the right conclusion.

As we view the matter, it is pertinent to first inquire as to the extent of the Probate Court’s jurisdiction to render a declaratory judgment. Section 8 of Article IV of the Constitution provides:

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

The emphasized clause fully warranted the enactment of Section 10501-53, General Code, which by its general provision and item 12 thereof, confers jurisdiction on Probate Courts “to render declaratory judgments.” The section concludes:

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

Is this jurisdiction otherwise limited by statute? The first section of the Uniform Declaratory Judgments Act, Section 12102-1, General Code, 'begins as follows:

“Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed * * V’ (Emphasis ours.) -

It is evident, since theJProbate Court is a court of record, that the subject matters over which that court had jurisdiction were not intended to be enlarged, but as said by Borchard on Declaratory Judgments (2 Ed.), 231:

“The language used in the uniform act and embodied by implication in the other acts was designed to indicate that the regular jurisdiction of courts over parties and subject matter was not intended to be altered, and that only a ‘new’ procedural device or vehicle of relief was afforded.”

Further on page 237, the author states:

“In other words, the power to render a declaratory judgment does not empower the courts to expand their jurisdiction over subject matter or impair the statutory administrative process.”

Disgressing for the moment, let us inquire as to the jurisdiction of the Court of Common Pleas. Section 4 of Article IV of the Constitution states that it shall have such jurisdiction as ‘ ‘ shall be fixed by law. ’ ’ As it is the court of general civil jurisdiction in Ohio, we must look to the jurisdiction granted it in civil cases. Section 11215, General Code, is responsive thereto. It prescribes that:

“The Court of Common Pleas shall have original jurisdiction in all civil cases where the sum or matter in dispute exceeds the exclusive original jurisdiction of justices of the peace. * * *”

It has long been settled that distinctions* between actions at law and suits in chancery are abolished; and that under our present system of jurisprudence Courts of Common Pleas have general equitable jurisdiction. It therefore follows as a matter of course that when a statute, as Section 11215, General Code, confers general civil jurisdiction in civil cases, it grants unto Courts of Common Pleas general equity jurisdiction as well.

It has been held repeatedly that Courts of Common Pleas have jurisdiction to entertain actions at law and suits in equity to enforce contracts not in writing, or to set aside such agreements in equity for fraud practiced and to recover back the consideration paid. This truism ought not to require an array of precedent. And it is equally true that this jurisdiction is reposed solely in Courts of- Common Pleas to the complete exclusion of Probate Courts, which never had that jurisdiction.

It must be remembered that the entire transaction of which plaintiff complains occurred prior to the death of her decedent. It is not a case of someone withholding an asset of the estate under a claim of gift or ownership from an estate’s personal representative; but a fully executed transaction whereby decedent parted with title and possession in her lifetime. All the administratrix of her estate had was a right of action to recover property or its money value. It is exactly in the same situation as a promissory note due the estate, or an action for personal injury to the decedent’s person or property, or property withheld which could only be recovered by an action in replevin.

We, therefore, conclude that the trial court was without jurisdiction to declare its judgment on the claim made in plaintiff’s petition, which exhibited on its face that the court whose judgment was invoked did not have jurisdiction thereof. Had its declaration been made it would have pronounced a void judgment. It is well established that the Constitution and law of this state confer jurisdiction of certain subject matter upon courts. It cannot be conferred by parties in litigation. All the court could do was to dismiss the petition.

There is a further reason which justifies the trial court’s order of dismissal. Independent of statutes in special cases, it is the general rule, as found stated in 40 Ohio Jurisprudence, 1204, Section 66, that:

“Where there are several defendants residing in two or more counties, after the venue is laid in one county, in order for summons to issue out of the county where one resides and be served in the other county or counties, the defendants 'must be jointly liable.”

The same authority states further in Section 67, at page 1206, that:

“Under the Ohio statutes relating to venue, it is not within the power of the plaintiff to compel parties residing out of the county where suit is brought to answer out of their own county by uniting with them a mere nominal party, or one not rightly joined with them as a defendant.”

When the court considered the allegation of plaintiff’s petition, it was glaringly apparent therefrom that the loan company was not chargeable with any fraud in decedent’s transaction with the park association. The loan company was not jointly liable for the park association’s misdeeds. It had an undoubted right to insist that plaintiff first establish her right to the stock certificate for three shares of stock before it could be called upon to reissue the stock to plaintiff. It even had a prior right to demand indemnity. It was apparent that there was an improper joinder of parties defendant; that venue of the cause of action stated against the park association properly lay in Cuyahoga county and not in Tuscarawas county; and that the loan company in default, but. which joined in and approved the tendered journal entry, was in fact an interpleader. These matters being clearly apparent, it was the duty of the court to order, as it did, dismissal of plaintiff’s petition.

The judgment must be affirmed.

Judgment affirmed.

Pútnam and Montgomery, JJ., concur.


author: By the Court.

text:
    Stewart et al., Appellees, v. Borden et al., Appellants.
    (No. 6674
    Decided July 1, 1946.)

      Mr. Sietoart S. Cooper and Mr. W. Ray Shirvin, for appellees.

      Messrs. Weinberger & Gracl, for appellants.
   By the Court.

The defendants appeal on questions of law from a decree of the Court of Common Pleas of Hamilton county, adjudicating only the rights of the plaintiffs under a certain contract and dismissing, without prejudice, that part of the answer of defendants seeking affirmative relief under the same contract.

In such decree the trial court attempted to save the rights of the- defendants by the following statement in the judgment entry:

“The. court coming now, to consider the answers of the defendants Sam B. Borden and Julius Payton, hereby dismisses without prejudice that part of their answers which sets up their claims for damages and the return of the $1,500 paid to the plaintiffs.”

In the petition, filed March 29, 1945, the-plaintiffs allege: That they entered into a certain contract with, the defendant Sam B. Borden, acting for a corporation to be formed by him, by which they agreed to sell and the defendant Borden agreed to purchase, on behalf of such corporation, certain real estate; that Borden agreed to form a corporation to which conveyance was to be made by plaintiffs; that Borden failed and refused to form such corporation, or to pay the purchase price or otherwise perform such contract; and that in spite of such failure to perform such contract, the defendant Borden claims such contract is in full force and effect, thereby creating a cloud upon the plaintiffs ’ record title.

A copy of the contract is attached to the petition. Plaintiffs pray the court shall declare that all rights of the defendant Borden under such contract have expired and terminated and that the plaintiffs “be found to be released and discharged from performing all and singular of the promises and obligations contained in said written agreement by them to be performed.”

In the copy of the contract attached to the petition and made a part thereof appears the statement

“It is understood that there is to.be no liability on my part whatever under this offer, which is made solely on behalf of the corporation to be organized.,”

To this pleading, Borden filed an “Answer” admitting the execution of the contract and the terms thereof, and that he had not formed the corporation, and denying all other allegations.

The defendant Borden then proceeds to allege that he advised plaintiffs’ attorney that if the title and survey were satisfactory, he would take the title in the name of his wife, Mae Borden, to which plaintiffs agreed; that thereafter he called the attention of plaintiffs ’ attorney to certain defects in the title and plaintiffs’ attorney stated such defects would be remedied; that plaintiffs have failed to cure such defects; and that by reason of the failure of the plaintiffs to cure such defects, the defendant is entitled to a return of his deposit of $1,500. The defendant further alleges that he was damaged by such failure of plaintiffs in the sum of $10,000 and prays for judgment against plaintiffs in the sum of $11,500.

To the answer of Borden, the plaintiffs filed a reply in which they state that they did not agree to accept Mae Borden as a party to such transaction; that the defendant is not damaged by postponement of the consummation of the sale; and that any delay was acquiesced in by the defendant and was waived by him. The reply contains also what is in effect a general denial.

Thereafter, on motion of the plaintiffs, one Julius Payton was made a party defendant.

The plaintiffs then filed a “Supplemental Petition for Declaratory Judgment” in which they “adopt and reiterate” the allegations of the original petition, and further allege that Julius Payton claims to be the real party in interest in the transaction involved, that they adopt all the allegations of their original petition against Payton and ask that he be required to set up any interest he may have in the subject matter of the litigation, and again iterate the prayer of the original petition.

The defendant Julius Payton filed an “Answer,” in which he admits the execution of the contract, a copy of which is made a part of the petition, and the terms thereof, and that the defendants have n'ot yet formed such corporation. The defendant Payton then denies all other allegations and alleges that Borden in all the transactions involved was acting as his agent.

Payton then makes substantially the same allegations as are found in Borden’s answer, and closes with a prayer for the same relief.

To this pleading the plaintiffs filed a reply in which they deny that Borden was agent for Payton, and allege that they had no knowledge of any such claim until counsel made a statement to this effect in the first hearing before the court. Plaintiffs deny that the defendant is damaged and that any delaj^ in consummation of the sale was. caused by the defendants and waived by them. The pleading otherwise is a general denial.

It will be noticed that the plaintiffs thus joined issue with the defendants, not only as fax' as their own pleadings were concerned, but also upon the cross-petitions of the defendants.

The bill Qf exceptions contains a certificate that it contains all the evidence submitted by the parties. It consists largely of colloquies between counsel and the court. Some of these are important.

“The Court: Now it is agreed here by counsel for defendants that they refused and didn’t care to go ahead with this purchase or the option.

“Mr. Weinberger: That isn’t a correct statement, your Honor.

“The Court: I think it is.

“Mr. Weinberger: I disagree with that.

“The Court: Now, you say you are willing to go on, but you ought not to say that, that’s because they have sold part of this property and you thought they couldn’t go on.

“Mr. Weinberger: We understand they can’t go on. The only question is whether we are entitled to get our deposit back or not.

“The Court: That’s what I thought, that the only question was about the $1,500 so far as you are concerned. Now, what I was going to say was this, I don’t see how you can get any question of that kind into this case. I think that from the agreement of counsel you have a right to have the option canceled so as to straighten your title out and leave that question open as to the $1,500. That wouldn’t affect the rights because .that’s a suit for money.

“Mr. Weinberger: But we filed a cross-petition in this ease for the $1,500. It all grows out of the same transaction. We have a right to set it up, in this same case without a separate suit.

“The Court: Well, it’s.far-fetched. I don’t know why you made him a party defendant.

“Mr. Skirvin: Well, because, your Honor please, I couldn’t get a judgment entry or a«dismissal with prejudice against Mr. Borden from Judge Schwab. That’s the reason I did it.

“The Court: Well, go on with your evidence, put whatever evidence you want in. When I give a declaratory judgment you don’t settle anything.

“Mr. Skirvin: You might settle the rights under the contract, that’s all I want to settle.

“The Court: Go ahead with the case.’’

And, again, in .the cross-examination of Payton by plaintiffs:

“By the Court:

“Q. When they finally got the title all right then you didn’t care to go ahead with it, is that it? A. Your Honor, I couldn’t get no fixtures.

“Q. You may have had a go.od excuse but you dropped it? A. I dropped it, yes.

“Q. You dropped the option? A. Yes.

“Q. You dropped it, you wouldn’t go ahead with it. You may have had good reasons, I don’t care about that, the point is you didn’t want to go ahead with this transaction? A. That’s right, because I couldn’t get started and operate a farm and raise stuff what I had in mind. 207 acres I could raise a lot of stuff.

“Q. You may have had good reasons but you did quit?

“By Mr. Skirvin:

“Q. That was in August, wasn’t it, of last year? A. That was in March when we were supposed to get title and wo couldn’t get a title, it wasn’t clear.

“Q. But I’m talking about when this conversation took place that you decided you couldn’t get the machinery for it, that was about in August, wasn’t it? A. I couldn’t tell you exactly.

“Q. It was in the summer? A. Whenever it was.”

And, again, in the cross-examination of Borden by plaintiffs:

“Q. Were you not requesting in November, 1944, an extension of time of the option? A. I knew nothing about the transaction after I had signed it, everything else was done between Mr. Payton and Mr. Weinberger.

“Q. Now, do you recall your signing any proposed extension of the option about November 27?

“The Court: Why go into that, this option they say is given.up.

‘ ‘ Mr. Skirvin: All right.

“‘The Court: He has nothing to do with it. Mr. Payton says it’s his and he says it’s his. He’s just the agent he says.

“Mr. Skirvin: All right, if that’s the court’s ruling. I know that Mr. Weinberger is trying to go back of that. If he does I will just reserve my right to call him back again.”

And,'again in the examination of Stewart Cooper, attorney for plaintiffs:

‘ ‘ The Court: Of course, I don’t understand why you bother about that. I asked Mr. Payton and I asked Mr. Borden why this deal didn’t go through. They said they didn’t care to go through with it — that he didn’t want to go through with it. He had good reasons maybe, but he gave up the thing. He said that didn’t he, Mr. Cooper?

“The Witness: I think so, your Honor.

“Mr. Skirvin: All right, cross-examine.”

And, again:

“Mr. Weinberger: And I want to take exception to the plaintiff making a motion at the conclusion of his testimony only before defendants have had any opportunity to present any testimony, either in answer to the petition, or on their cross-petition.

“The Court: Well, put your men on. I asked Mr. Payton and I asked Mr. Borden, I asked them right here about the option and they said yes, we have given it up, we refused to go ahead with the property. He went to telling me his reasons, which were probably good, but they were personal. Now that’s all I am deciding. They are asking me to forfeit the money to them and I am deciding in your favor that I have no such right of forfeit. There is no agreement that if they didn’t go ahead they were to forfeit this, and I have kept in mind, I may be wrong, that they are liable for whatever the loss' actually was' to the Stewarts. If they didn’t lose any $1,500 I don’t see any basis for them keeping the $1,500. I am leaving that all open for you to bring a suit to recover it and then they will have -to prove that they were damaged that much. If they weren’t damaged that much they can’t keep that whole $1,500.

“Mr. Weinberger: We have several witnesses. Will the court permit us to put on our testimony?

“The Court: Yes, put on some testimony here. You heard me say to Mr. Stewart why are you going into that if they admit it. Have you got anything more? Put him on. Go ahead with it. I don’t know what you are driving at.

“Mr. Weinberger: I have Mr. Anderson and I have the surveyor.

“The Court: What about?

“Mr. Weinberger: To testify as to the correspondence and to testify as to the fact that he endeavored to clear up this title and that he did not clear it np as requested. I have the surveyor to testify that the description—

“The Court: Now, Mr."Weinberger, you are a good lawyer and you are a good thinker. You had a lot of delays but you agreed to them. You kept corresponding. You didn’t call this off on that ground at all. Finally they got it all ready. You are familiar with all of that. And it finally came up to the time and at that time you said you didn’t want it, you wouldn’t go ahead with it.

“Mr. Weinberger: I am again asking the court to permit us to proceed with our case and to put our witnesses on as we think necessary.

“The Court: You may take your decree canceling this option and an order canceling it from the record and leaving all questions as to the $1,500 or damages, all other questions are left open.

“Mr. Weinberger: I want to take exception to the ruling of the court and to the court’s refusal to permit us to put on our case.

“The Court: .Put in the record what you want to prove.

■“Mr. Weinberger: If the court will permit me, but every time I try the court interrupts.

“The Court: You can state it in the record what I am not allowing you to put on.”

From the foregoing, it would seem that the court concluded that it was not required to consider anything but the petition and the defense thereto. In effect, this was an action in equity to quiet title. The decree of the trial court did far more than merely declare the rights of the parties under the contract. That decree canceled the contract of record and abrogated its terms as far as plaintiffs’ obligations involving the real estate were concerned. Such decree would render any later attempt to litigate the issues determined futile under the rule of res judicata. The reservation in favor of the defendants would go only to the extent of sustaining a claim of inconsistent elements in the decree.

Either the court should have refused to enter any decree, on the ground that it would not terminate the controversy, as is provided in Section 12102-6, General Code, or it should have proceeded to pass upon the claims of the defendants after permitting them to present evidence sustaining their cross-claims, which were permissible under the provisions of Sections 11315, 11317 and 11319, General Code. The cross-claims of the defendants were made issues by the pleadings of the plaintiffs.

It is apparent the parties were 'willing to waive a jury and try their case to the court. The court could have determined whether the defendants had any right to a return of their deposit or were entitled to damages.

Any question of the jurisdiction of the court over the persons of the plaintiffs upon the cross-petitions of the defendants is eliminated by the filing of replies of the plaintiffs.

It appearing that the rights of the defendants will be' prejudiced by permitting the decree of the trial court to remain undisturbed, that the court refused to pass upon the defenses and claims of the defendants raised by the pleadings or permit the defendants to present evidence thereon, the decree of the trial court is reversed and the case remanded for a new trial upon the issues presented by all the pleadings.

Decree reversed.

Hildebrant, P. J., Matthews and Ross, JJ., concur'.


author: Wiseman, J.

text:
    Kintner, Appellant, v. Kintner, Appellee.
    (No. 3820
    Decided January 22, 1946.)

      Mr. W. S. Pealer and Mr. D. Curtis Reed, for appellant.

      Mr. Roscoe R. W.alcutt and Mr. Kenneth Little, for appellee.
   Wiseman, J.

This matter comes before the court on an appeal on questions of law from an order of the Common Pleas Court of Franklin county, Division of Domestic Relations.

The plaintiff, appellant herein, claims error was committed in that the order entered by the trial court was contrary to law because (1) it required the mother, plaintiff, to contribute to the support of the minor child without any finding that the husband was unable to provide such support, (2) the order constituted a reduction of permanent alimony contained in the separation agreement which was incorporated in the divorce decree, and (3) the order was against the manifest weight of the evidence.

That part of the order which forms the basis of the plaintiff’s complaint is as follows:

“Second, that the plaintiff, Helen Marie Kintner, shall contribute the sum of $10 per month from the effective date of this, order toward the care, support, maintenance and education of said child, by paying said sum of $10 to the defendant through the clerk of this court to reimburse him for the full support of said child furnished by him. The payments to be made by the plaintiff to the defendant as soon as there may be an ability on her part to comply with this order.

“This court orders that said payments herein provided shall be effective and be made as of and from the first day of February, 1945.”

The sole question for the court to determine on all three assignments of error is whether the court could properly make the order above set forth.

The record in this case shows that the plaintiff, the wife, and the defendant, appellee herein, the husband, were granted a divorce on March 11, 1939, and the separation agreement which had been entered into between the parties was approved and carried into the decree. The separation agreement which was ratified and confirmed by the court in the decree provided that the defendant should pay to tjie plaintiff “the sum of $70 per month on the first day of each calendar month commencing April 1, 1939, as permanent alimony and permanent child support as follows: $15 per month for the support of each child until the said child reaches the age of majority, namely, 21 years, being a total amount at the present time in the amount of $45 per month, together with the sum of $25 per month as and for permanent alimony, said amount being payable during the lifetime of the plaintiff or until such time as plaintiff remarries.”

The custody of the children was granted to the plaintiff.

Subsequently, to wit, on December 23, 1943, the custody of the second child was changed from the plaintiff to the defendant and later, to wit, on June 9, 1944, the custody of the youngest child was changed from the plaintiff to the defendant. Later, on March 5,1945, an order was entered placing the youngest child in a private home and fixing the support charge at $10 per week. The order further provided that the plaintiff would be required to make a contribution to the support of this child at the rate of $3 per 'week which amount should be deducted from the $25 per month permanent alimony provided in the divorce decree.

On April 7,1945, the trial court “on its own motion” vacated its former order and set the case for hearing. Testimony was taken at such hearing, the record of which has been examined by this court. The record shows that the defendant had ample funds and earning power to support his children and that the plaintiff had little or no income for the support of herself and lacked the necessary income for the support of her children. The court rendered a written opinion in which it found as follows:

“Yet at this time I cannot find an ability to support on her part or contribute to the support, based on the fact that she only has an income of $25.”

However, the court, under date of August 21, 1945, made the order requiring the plaintiff to pay $10 per month to the defendant to reimburse him for the full support of the child.

Did the court commit reversible error? Section 7997, General Code, provides as follows:

' “The husband must support himself, his wife, and his minor children out of his property or by his labor. If he is unable to do so, the wife must assist him so far as she is able.”

By reason of the provisions of Section 7997, General Code, the husband is primarily liable for the support of his minor children. The liability of the wife is secondary to that of the husband. Before the. court can require the wife to support the minor children it must first find that the husband is unable to do so. In the instant case the testimony shows, and the court so found, that the husband was able to support the child in question and also found that the wife had little or no income except that contributed by the husband as permanent alimony in the amount of $25 per month.

The trial court rested its order on Section 8032, General Code, which is as follows:

“When husband and wife are living separate and apart from each other, or are divorced and the question as to the care, custody and control of the offspring of their marriage is brought before a court of competent jurisdiction in this state, they shall stand upon an equality as to the care, custody and control of such offspring, so far as it relates to their being either father or mother thereof.”

We are of the opinion that the provision of Section 8032, General Code, which seeks to place the father and mother on the basis of equality with respect to the care, custody and control of their offspring, does not relieve a father of his primary obligation to support his minor children as provided by Section 7997, General Code. We jare of the opinion that the provision of Section 8032, General Code, places the father and mother on the basis of equality with respect to their relationship to their offspring, but as between the father and the mother, the father still carries the primary obligation of support. See Quigley v. Murphy, 4 N. P., 1, 5 O. D., 680; Young v. Young, 7 C. C. (N. S.), 419,18 C. D., 179; Mieszkalski v. Mieszkalski, 44 Ohio App., 152, 184 N. E., 709.

The plaintiff also contends that the trial court was without authority to require the plaintiff to contribute to the support of the minor child which contribution operated as a reduction of permanent alimony agreed to between the parties before the divorce and which agreement was ratified and confirmed in the divorce decree and made a part thereof. It is a well established principle of law in Ohio that a separation agreement which is made a part of the decree may be modified at a later date by increasing the amount specified for the support of the children in order that /they may receive adequate support, but with respect to the rights between the parties themselves the provision made in the separation agreement with respect to permanent alimony and which was approved and ratified by the court and made a part of its decree cannot thereafter be modified in the absence of fraud or mistake. Campbell v. Campbell, 46 Ohio App., 197, 188 N. E., 300; Ferger v. Ferger, 46 Ohio App., 558, 189 N. E., 665; Law v. Law, 64 Ohio St., 369, 60 N. E., 560; Tullis v. Tullis, 138 Ohio St., 187, 34 N. E. (2d), 212.

In Tullis v. Tullis, supra, the court, in discussing the effect of the separation agreement being made a part of the decree, on page 190, said:

“The contract of separation between the parties in this case was complete and final as between themselves and likewise final as to the support of their minor child so far as they could make it final under the law. The appellant had a legal right to make a contract with the appellee for her permanent support and for the support of their minor child. She had the right to make such contract for the support of the child, not only in its behalf but in her own behalf to protect herself against her secondary liability under the statute for the support of their child. The consideration for such contract was adequate and complete and the contract was mutually and permanently binding on both parties.”

Again, on page 192, in discussing the authority of the trial court to increase rather than diminish the support allowance of the child, the court said:

“This court has also held that even though such a contract has been made a part of the decree of divorce, yet because of the continuing jurisdiction of the court and because of the demands of public policy, the court may subsequently increase the support allowance for children if changed circumstances require it, since a parent cannot by his own contract relieve himself of the legal obligation to support his minor children.”

Accordingly, this court holds that it was within the province of the trial court to modify its former order with respect to the support allowance of the child, but it had no authority to modify the former order with respect to the rights already fixed between the plaintiff and the defendant regarding permanent alimony. Furthermore, this court holds that the trial court was without authority to require the plaintiff to contribute to the support of the child. For this reason this court holds that the trial court committed reversible error in making the order complained of. The case will be remanded to the trial court for further .proceedings.

Order reversed,.

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


author: Sherick, P. J.

text:
    Mathias, Appellee, v. Mathias et al., Appellants.
    (No. 740
    Decided May 1, 1946.),

      Mr. Arthur B. Cunningham, for appellee.

      Mr. Charles Greenlee and Messrs. Boivers, Stafford S Bowers, for appellants.
   Sherick, P. J.

This matter is heard on the motion of the plaintiff, appellee herein, to dismiss the joint appeal of the defendant Martha June Mathias, and of Carrie Walton who was made a party defendant during the course of the pendency of the divorce cause.

Only the transcript of the docket and journal entries, which contains all the original papers, is before this court. It appears that the pleadings filed consist of a petition, an answer by Martha June Mathias, generally denying the allegations of plaintiff’s petition, and a supplemental petition directed against the defendant, Carrie 'Walton. On February 8, 1946, a hearing was had, and on the same day a jotírnal entry was prepared and filed by the trial court. That entry was not submitted to counsel and no exceptions were preserved therein in defendants’ favor. The first and third paragraphs thereof are as follows:

“This day this matter came on for hearing on the petition of plaintiff and the evidence. * * *

“The court further finds upon the petition and the evidence adduced that the defendant wife has been guilty of gross neglect of duty as alleged in the petition. It is therefore ordered by the court that this cause be continued for judgment until the last day of the present term of court at which time, unless the court should otherwise direct in the interim, it is ordered and adjudged by the coitrt that the marriage contract heretofore existing between the said parties be dissolved and both parlies released from the obligations of the same; that the plaintiff be awarded all the property of the parties, including the real estate described in the petition, upon payment by the plaintiff to the defendant-wife of the sum of $300 within five days after the last day of the present term of court, and upon payment of the said sum of $300 said defendant-wife is ordered to convey said real estate to the plaintiff, his heirs and assigns forever, by good and sufficient deed in fee simple free from any right or claim of said defendant-wife to any estate of dower or otherwise therein, and upon failure of the defendant-wife to make such deed, a certified copy of this entry filed.in the recorder’s office of this county shall operate as such conveyance-, that the defendant, Carrie Walton, 1930 East Cook road, Columbus, Ohio, is hereby directed to pay to the plaintiff herein the sum of $900 which she now has in her possession given to her by the defendant-wife, which represents funds received by the defendant-wife from the sale of personal property belonging to the plaintiff, within five days after the last day of the present term of court; and it is further ordered that the plaintiff pay the costs of this proceeding taxed at $-(Italics ours.)

On April 6th, defendants requested the court, in writing, to enter exceptions to the final judgment and entry of the court. On the same day defendants’ counsel filed in the trial court a notice of intention to appeal from the final order rendered on the 8th day of February. That notice of appeal is accompanied by an affidavit of defendants’ counsel, which states in part that the February 8th journal was filed without the approval of defendants’ counsel, and that the trial court had refused' the request of defendants ’ counsel to enter exception to the journal or to let the record show that the request was made and refused. On the 8th day of April there was filed in the trial court a paper denominated “exceptions,” wherein defendants except.to the order of February 8th.

The transcript discloses that no further journal entry was filed in this cause after the February 8th entry.

The motion to dismiss is separately directed as against both defendants. In both appeals it is urged that the appeal was not perfected within the time prescribed by Section 12223-7, General Code. The attempted appeal of Carrie Walton is attacked upon the further ground that there is no final order appealed from as is provided in Section 12223-2, General Code. This last phase of the motion against Carrie Walton is not well taken. She is ordered to pay plaintiff the sum of $900, and it is clearly evident that 'such affects a substantial right, if the order be final.

The question for solution in this court is, Was the notice of intention to appeal filed within. 20 days from the final order made, if any such order was made? The transcript does not show, however counsel have agreed, that the old term ended and the new term began some hour during the 8th day of April. If the order of February 8th was final as of that date, then it is apparent that the notice of appeal was filed too late. If it was final as of the last day of the term, that is April 8th, it is equally clear that the notice of appeal filed on April 6th was prematurely filed. The third horn of the dilemma, as previously suggested, rests in the query, Was there ever any final order?

The solution of the motion’s problem is, of course, clearly not one of effect upon the status of the litigants, but purely one of the right of an unsuccessful litigant to perfect an appeal in a case like the one here presented.

We are confronted with several well settled rules. It is well established that a trial court has full control over its journals during the term. Second, the only form of divorce which Ohio courts may decree under the present statute, Section 11986, General Code, is an absolute divorce. We have no statute recognizing and sanctioning an interlocutory decree. Third, divorce decrees are considered as not having been rendered until journalized. See Cox v. Cox, 108 Ohio St., 473, 141 N. E., 220. Fourth, it is held in Smith v. Smith, 103 Ohio St., 391, 133 N. E., 792, that, where a court, after hearing the evidence, finds a party to be entitled to a divorce and orally grants it, mandamus will lie to compel the journalization thereof upon the record.

The journal entry of February 8th indicates three things. First, a decree of divorce was to be entered on the last day of the term. Second, a certified copy of the entry would operate as a conveyance, which would contemplate that no further entry was to be filed. This is further evident as no such entry was or has been filed. Third, the court on February 8th did not' contemplate entering final judgment at that time, but ordered “that this cause be continued for judgment until the last day of the present term of court at which time, unless the court should otherwise direct in the interim, it is ordered and adjudged by the court that the marriage contract heretofore existing between the said parties be dissolved and both parties released from the obligations of the same.” The court did not otherwise decree in the interim. Hence it is apparent that its order was not only conditionally made, but was not to take effect until the last day of the term.

This court is of opinion that that portion of the entry was of no greater effect than if it had orally stated what the court proposed to do on the last day of the term; that is, that unless the court changed its mind in the interim, it proposed to grant a decree of divorce to plaintiff on the last day of the term in accordance with its conclusions reached in the February 8th entry. The rub comes in the fact that no further entry seems to have been contemplated even though the cause was “continued for judgment.”

Had the defendants a right to presume that the court would enter a final judgment? We think they had. They seem to have been misled by the court’s preparation, and filing of the entry. They had and have a right to preserve their exceptions, even though the wife failed to actively resist the granting of a divorce at trial. It is not now a question as to whether any error intervened in the trial of the. cause which should warrant a reversal or as to whether a failure to demand a new trial precludes review, but purely whether defendants may appeal their cause. The letter and spirit of our appellate procedure is one trial and one review; and rules of court ought to be liberalised to that end.

The entry of February 8th in the respects now under review is not an absolute, decree of divorce. If it were, it would have taken effect as of that date. Neither is it in effect an interlocutory decree, unknown and uncountenaneed in Ohio divorce law. The court in Preston v. Preston, 102 Conn., 96, 123, 128 A., 292, speaking generally, states that:

“It is the office of an interlocutory judgment to order what further steps shall be taken and facts decided in preparation for the final judgment. ’ ’

. The following pertinent comment is found in 30 American Jurisprudence, 824, Section 8:

“Before judicial action may be regarded as a judgment, it must be clear that the action of the court is intended as such, and not merely as an indication of what the judgment is to be.”

Two early Ohio cases consider the distinction between a final decree and an interlocutory order. In Kelley v. Stanbery, 13 Ohio, 408, it is said at page 421:

“A decree is final which disposes of -the whole merits of the cause, and leaves nothing for further consideration of the court. A decree is interlocutory which finds the general equities, and the cause is retained for reference, feigned issue, or consideration, to ascertain some matter of fact or law, when, again, it comes under the consideration of the court for final disposition. When no further action of the court is required, it is final; when the cause is retained for further action, it is interlocutory. ’ ’

In Teaff v. Hewitt, 1 Ohio St., 511, 59 Am. Dec., 634, the question was considered again, and the following comment is found therein:

“A final decree is one which determines and disposes of the whole merits of the canse before the court * '* * reserving no further questions or directions for future determination; so that it will not be necessary to bring the cause * * * again before the court for further decision. * * * An interlocutory decree is one which leaves the equity of the case, or some material question connected with it, for future determination. Where the further action of the court is necessary to give the complete relief, contemplated by the court upon the merits, the decree under which the further question arises, is to be regarded not as final but as interlocutory.”

It is the judgment of this court that a final decree of divorce has not as yet been entered, that defendants ’ attempted appeal is now premature, and that when final judgment is entered defendants may perfect an appeal therefrom in accordance with the statutes made and provided. The first branch of the motion will at this time be sustained and the cause remanded for further proceedings.

Judgment accordingly.

Putnam and Montgomery, JJ., concur.


text:
    The State of Ohio, Appellee, v. Nutt, Appellant.

      (No. 490
    Decided March 15, 1946.)

      Mr. Marcus Shou'p, prosecuting attorney, for appellee.

      Mr. Merritt E. ScMafman, for appellant.
   By the Court.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Greene county, Ohio, wherein the defendant was convicted on the charge_ of operating a motor vehicle while under the influence of intoxicating liquor.

Seven assignments of error are set forth by the defendant, but we will confine our attention to only those covered in the brief of the defendant, to wit:

1. The verdict is not sustained by the weight of the evidence.

2. The court erred in permitting witnesses to testify that defendant had been asked whether he was willing to submit to a urinalysis test and that he refused to do so, over the objections and exceptions of the defendant.

The record discloses that the chief of police of the village of Osborn, Ohio, and also a physician were permitted to testify over the objections of the defendant that the defendant refused to submit to a physical examination, and also that he refused to furnish a sample of his urine for the purpose of an analysis.

The defendant contends that Section 10, Article I of the Ohio Constitution provides that no person shall be compelled to be a witness against himself; and that permitting the foregoing testimony violated the constitutional rights of the defendant.

We have been able to find only one case in Ohio which is on all fours with the ease at bar and which we think to be decisive of this question. The case referred to is State v. Gatton, 60 Ohio App., 192, 20 N. E. (2d), 265. The court held that on a trial on a charge of driving a motor vehicle while intoxicated, evidence that the defendant, after being arrested and confined in jail, had been asked “to submit to having either a blood test or a urinalysis made, to determine the amount of alcohol in his system” and had refused to have such test taken, was properly admitted over the objection that it required the defendant to testify against himself in violation of the state Constitution. The court held further that his failure to testify might be considered by the court and jury and might be the subject of comment by counsel. The court said:

“It will be observed in the instant case that the evidence offered was not required to be given by the defendant himself, but was given by the deputy sheriff and the doctor called by the deputy to make the examination of defendant. We are unable' to observe any merit in the defendant’s claim that the introduction of such evidence violated his constitutional rights, and we believe, and hold, that the constitutional inhibition against self-incrimination relates only, as stated by Greenleaf, to disclosure by utterance. No such disclosure was required of defendant in this case.” See, also, 127 A. L. R., 1514.

We are therefore of the opinion that this assignment of error is not well taken.

We find further that the verdict is' not against the manifest weight of the evidence and that there is ample evidence to support the conviction. The judgment is affirmed.

Judgment affirmed.

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


author: Hornbeck, P. J.

text:
    The State, ex rel. Hodapp, Relator, v. Haines, Aud., Respondent. The State, ex rel. Morgan, Relator, v. Haines, Aud., Respondent.
    (Nos. 1614 and 1630
    Decided December 12, 1945.)

      Mr. Frank W. Krehbiel, Mr. Dale J. Hodapp, Mr. William D. Schaeffer and .Mr. Earle G. Null, for relators.

      Mr. Mathias H. Heck, prosecuting attorney, and Mr.' Albert J. Dioyer, for respondent.
   Hornbeck, P. J.

The above numbered eases submitted as one are taxpayers’ suits in mandamus to require the respondent to investigate and assess against all immunity certificate holders and all other persons who fail to pay their proper and full personal property taxes for the years 1926 to 1930, inclusive, additional taxes and penalties found to be due for such years, as provided by statute, etc.

In case No. 1614 the relator proceeds upon an amended petition and in case No. 1630 the relator proceeds upon a petition. We will hereinafter refer to these pleadings as the petitions.

The petitions aver that Section 5398, General Code, without the certificate of immunity provisions, controls the obligation of respondent to investigate personal property of persons, firms and fiduciaries whose names are listed and attached to the petitions and to assess the property for taxation for the years 1926 to 1930, inclusive. The petitions further aver that some of the persons listed are immunity certificate holders and others listed, who are subject to taxation, are not. Relators further assert that the case of State, ex rel. Hostetter, v. Hunt, 132 Ohio St., 568, 9 N. E. (2d), 676, “declared unconstitutional and void that part of the Intangible Tax Act of Ohio, enacted in 1931, 114 Ohio Laws, 776 and 778, which provided for the issuance of immunity certificates to taxpayers seeking immunity^ from personal property taxes for the years 1926 to 1930 inclusive.” Notice to the respondent of the facts set out in the petitions and request upon him to act is pleaded as is notice to the prosecuting attorney of Montgomery county and request upon him to institute suit.

The answers of respondent, after a general denial, aver that he is precluded from proceeding to assess the taxes on the personal property set forth in the petitions for the years prior to 1932 by Sections 5398-2 and 5398-3, General Code, and further state that there were no assessments pending on the date that the aforesaid sections became effective. There are no replies and it might be well for counsel for relators in view of Section 11331, General Code, to file replies, if desired.

The parties have stipulated certain facts. We also direct attention to the possibility that the facts stipulated do not anticipate all the issues drawn by the general denial. However, we make no further observation respecting this phase of the cause because counsel have presented these cases upon well defined theories which are developed and elucidated in their briefs.

Briefly, the relators claim that Section 5398, General Code, independent of the provisions therein for immunity certificates and independent of Section 5398-1, General Code, controls the obligation of the respondent respecting the investigation and assessment of taxes against the property of the individuals listed in the petition and rely largely upon the case of State, ex rel. Hostetter, v. Hunt, supra. The respondent relies upon Sections 5398-2 and 5398-3, General Code, and the immunity certificate provisions of Sections 5398 and 5398-1, General Code, and upon the cases of Black et al., Exrs., v. Evatt, Tax Commr., 138 Ohio St., 52, 32 N. E. (2d), 843, and Ireland, Jr., Exr., v. Evatt, Tax Commr., 138 Ohio St., 61, 32 N. E. (2d), 847.

Relators assert that Sections 5398-2 and 5398-3, General Code, are unconstitutional as being discriminatory and in violation of the equal protection clause of Section 2, Article I, Ohio Constitution, and as retroactive legislation under Section 28; Article II, Ohio Constitution. Upon the question whether the legislation set up defensively is retroactive counsel discuss Section 26, General Code.

Section 5398, General Code, provides:

“If a county auditor believes or has reason to be-4ieve that a person, required by the law then in force 'to list property or make a return thereof for taxation in any prior year or years beginning ‘with 1926 and ending with 1931, has made a false return, or has evaded making a return, * * * he shall call such person before him for examination * * *. Unless the person so notified produces a certificate of the Tax Commission: of Ohio to the effect that the person whose returns are proposed to be examined, made a return in the year 1932 and fully and in good faith listed therein all the taxable property required by the law in force in the year 1932 to be so listed, the auditor shall proceed with the examination.”

The section provides further for hearings and that the auditor shall assess for taxation all personal property which has been omitted, according to the terms of the section.

Section 5398-1, General Code, provides for application for a certificate of immunity and the issuance of such certificate by the tax commission (commissioner) of Ohio, if it finds that a person whose returns are proposed to be investigated by the county auditor under Section 5398, General Code, in the year 1932, fully and in good faith, listed the taxable property required by the law in force in such year to be so listed. Section 5398-2, General Code, provides:

"No action, * * * or other proceeding to collect taxes on personal property, tangible or intangible, required to be listed and subject to taxation in the years prior to 1932, shall be instituted and carried out, unless a valid assessment of such taxes shall haye been made prior tathe effective date of this act * * *.”

Section 5398-3, General Code, provides:

"That any power of county auditors to assess personal property, tangible or intangible, for taxation in respect of the years prior to 1932 arising from the provisions of Section 5398 or any other section of the General Code be, and the same hereby is terminated, except as hereinafter provided.”

The exceptions are found in Section 5398-4, General Code, no one of which has application to the facts in the instant' cause. Those sections were effective May 14, 1941. The suits herein were instituted before the enactment of the aforesaid sections of the Code.

At the outset we are met with the case of State, ex rel. Apple, v. Pence, 137 Ohio St., 569, 31 N. E. (2d), 841, the syllabus of which is:

“In exercising the extraordinary power of mandamus a court should take into consideration the facts and conditions existing at the time it determines whether to issue a peremptory writ. ’ ’

The rights of the relators rise no higher than those of respondent, the auditor. Obviously, if the auditor should attempt to carry out the provisions of Section 5398, General Code, he would be met with Section 5398-3, General Code, and, if that section is valid and has application to the facts herein, would be precluded from conducting any examination preparatory to placing the personal property mentioned in the petitions upon the tax duplicate. But it is asserted that Sections 5398-2 and 5398-3, General Code, are unconstitutional.

Both of those sections clearly are remedial legislation, the very purpose of which is to prevent a county auditor from conducting- any examination or making any assessment relative to the taxation of personal property for the years 1926 to 1930, inclusive, and likewise to preclude the institution of any action to collect taxes on personal property in the years prior to 1932, unless such taxes have been assessed prior to the effective date of the. act, namely, May 14, 1941. Those sections affect pending actions under Section 26, General Code, because they relate to the remedy and such purpose is clearly expressed.

If those sections are effective, they will preclude the issuance of writs of mandamus without respect to the immunity certificate provisions of Sections 5398 and 5398-1, General Code. They are valid legislation under a pronouncement found in the majority opinion in Blade et al., Exrs., v. Evatt, Tax Commr., supra, independent of the principal question considered in that case. We refer to the second paragraph of the syllabus of such case:

“The authority of county auditors in the matter of conducting examinations relative to intangible personal property taxes for the years beginning with 1926 and ending with 1931 is conferred by statute and may be modified or terminated by statute.”

We then consider the inferential effect on the constitutionality of those sections of the decisions in State, ex rel. Hostetter, v. Hunt, supra; Black et al., Exrs., v. Evatt, Tax Commr., supra; and Ireland, Jr., Exr., v. Evatt, Tax Commr., supra. For the purpose of brevity we will hereinafter refer -to the foregoing authorities as the Hunt, the Black and the Ireland cases.

Manifestly, the holdings in those cases must be differentiated on the facts because one decision, in the Hunt case, holds that the certificate of immunity provisions of Section 5403-2, General Code, as found in 114 Ohio Laws, 776 and 778, were unconstitutional as being discriminatory and retroactive, whereas the decisions in the Black and Ireland cases hold that the Sections 5398 and 5398-1, General Code, in the respect in which they were challenged in those cases, are constitutional and violative of no provision of either the state or federal Constitution. Judge Williams dissented in the Black case and three members of the court, Judge Hart writing the opinion, dissented in the Ireland case and that dissent was predicated, in part, upon the proposition that the decision in the Hunt case was dispositive of the controlling question in the Ireland case. In the situation presented by those adjudications, we recognize that the question is very close as to the constitutionality of the certificate of immunity provisions of the sections, inasmuch as the three members of the court who dissented in the Ireland case retain membership in such court while one member who participated with the majority is no longer a member of the court. We are, of course, bound by the majority opinion which was carried into the judgment of the court. Judge Matthias, who wrote the majority opinion in the Black case, and Judge Zimmerman, who wrote a concurring opinion, marked the distinguishing differences in the facts between the case there under consideration and the Hunt case which in their judgment support the difference in adjudication.

In the Hunt case, the auditor of Stark county was investigating the status of the tax returns of the executors of the estate of Carrie Jacobs Brown, during the years 1926 to 1930, inclusive, by reason of information which came to his attention from- an inventory of the estate of decedent filed by the executors. The auditor continued his examination and assessed personal property of the estate for taxes in the amount of $385,518.21. After that assessment had been made/ so the court determined, the executors made application for and secured from the Tax Commission of Ohio a certificate of immunity from the collection of the omitted taxes, pursuant to the provisions of the Intangible Tax Act of Ohio of 1931 (114 Ohio Laws, 776 [Page’s Code, Section 5403-2]). The certificate was set up defensively against the right of the taxpayer plaintiff to collect the taxes which had been assessed.

Prom those facts the court pronounced the first and second paragraphs of the syllabus, which are:

“1. A statute which confers special benefits upon delinquent taxpayers not equally available to nóndelinquent taxpayers violates Section 2 of Article I of the Constitution of Ohio and is therefore void and of no effect.

“2. That part of the Intangible Tax Act of Ohio enacted in 1931, 114 Ohio Laws, 776, 778, giving the Tax Commission of Ohio power to issue a certificate of immunity from collection of omitted taxes for 1926 to 1930, inclusive, upon condition that the taxpayer fully comply with the personal property tax law in 1932, is unconstitutional and void for the reason that it confers special benefits upon delinquent taxpayers not enjoyed by nondelinquent taxpayers charged with the same obligations.”

In the Black case, Black had died in 1937. The auditor of Richland county conducted an examination, under Section 5398, General Code, of the failure of Black, when living, to return for taxation certain personal property which he was alleged to have owned in the years 1926 to 1930. While the investigation was proceeding, the executors of Black’s estate made application to the Tax Commission of Ohio for a certificate of immunity. The commission found that Black had in 1932 made a return in which he fully, and in good faith, listed his taxable property for that year but it refused to issue the certificate, upon the authority of the Runt case and the case of State, ex rel. Greenward Realty Co., v. Zangerle, Aud., 135 Ohio St., 533, 21 N. E. (2d), 662. The Ireland case presented substantially the same material facts as the Black case. In the Black case, the auditor of Richland county and the taxpayer, relator in the mandamus action referred to in the opinion, were made parties to the action.

The limited question presented by both the Black and Ireland cases was whether the obligation enjoined upon the Tax Commission by Sections 5398 and 5398-1, General Code, to issue certificates of immunity when the operative facts of the section appeared was constitutional. The substantive effect of such certificate, if issued, according to the majority opinion, was not involved although there is much discussion in all the opinions as to the effect of the certificate.

Several distinguishing facts in the cases appear which have been stated.but not stressed, the most significant of which is that in the Hunt case the taxes had been assessed and had become a valid, legal and subsisting obligation against the executors. The certificate had not been issued prior to the assessment of the taxes. The Hunt case brought into consideration Section 5403-2, General Code, which, in terms, provided that the certificate of immunity was a defense in an action brought to recover taxes which had been assessed in 1931 for any prior year under Section 5398, General Code, etc. Sections 5398 and 5398-1, General Code, did not purport to give the certificate of immunity the effect of precluding the collection of taxes which had been assessed but merely of preventing further examination of the certificate holder by the auditor, the purpose of which was to eventually assess taxes for the years under consideration.

Judge Matthias in the majority opinion in the Black case adverts particularly to the fact that there, unlike the Hunt case, the assessment had not been made and that the certificate had been applied for during the conduct of the examination as to the assessment of taxes. The differentiation was sufficient to support a judgment of the majority. The rationale of the majority opinion tends to support the constitutionality .of the immunity certificate provisions of Sections 5398-1 and 5398-2, General Code, to the extent that such certificate, if. issued prior to the conclusion of an investigation of the auditor, under Section 5398, General Code, would be a bar to further investigation and to the assessment of any taxes against personal property of the certificate holder for the years involved.

In none of the cases which we have considered will the judgment preclude the application of the provisions of Sections 5398-2 and 5398-3, General Code, to the facts appearing in the instant cases.

The writs are denied and petitions dismissed.

Writs denied.

Miller and Wiseman, JJ., concur.


text:
    Bockstiegel, Appellee, v. Hix, Appellant.
    (No. 6677
    Decided June 24, 1946.)

      Mr. W. W. Davis, for appellee.

      Mr. Harry Falk, for appellant.
   By the Court.

This is-an appeal on questions of law from a judgment of the Court of Common Pleas of Hamilton county in favor of the plaintiff. A cross-petition of defendant was dismissed. Trial was to the court without a jury. Motion for new trial was duly filed and overruled and final judgment was entered thereafter.

The petition was filed on July 17, 1945.

The action was instituted by the plaintiff to recover a deposit made by her under the terms of a contract by which she agreed to buy and the defendant agreed to sell a certain parcel of real property. It was provided in the contract that the deed from the seller should warrant the title clear, free and unencumbered. The closing date was fixed in the contract as May 20, 1945, and was extended by the purchaser, to June 5, 1945. The plaintiff claimed that defendant refused to convey the property and that she was entitled to the return of her deposit. The trial court so found.

From the bill of exceptions it appears that the trial court was confronted with direct conflict of evidence upon almost every issue presented by the proceedings, in many cases, if not every instance requiring a decision upon the credibility of the witnesses. It would be almost wholly impossible for this court to state any fact which was not the subject of direct conflict of evidence.

For example, there is evidence that plaintiff set a date for the closing of the transaction and the defendant requested more time. This, the defendant vigorously denies.' There is evidence that the defendant was ready to close the transaction on May 18, but the plaintiff claims she knew nothing of this.

There is evidence that plaintiff made arrangements by securing loans to meet the purchase price. There is evidence that on May 21, defendant presented a deed to plaintiff and demanded the purchase price, but plaintiff could not at the moment produce the purchase price. There is evidence that this demand was made at the home of plaintiff, after banking hours. There is evidence that the plaintiff had ample money in bank at that time to pay such purchase price. The tender has all the earmarks of a planned attempt by the defendant to secure a breach of the contract by the plaintiff. The contract required a full warranty deed, but a mortgage existed against the property at the time the tender was made. The defendant claimed she presented a statement of the loan at the time. Under Schaengold v. Dick, 36 Ohio App., 78, 172 N. E., 839, this would not be a ground for refusal to pay the purchase price with allowance for the amount of the un paid mortgage. However, on May 22, the defendant through her attorney declared the contract cancelled and void. The defendant claims thereafter she offered to consummate the sale; this the plaintiff denies. And so through the entire record of the evidence this conflict proceeds.

It seems, therefore, that the trial court was justified in concluding that the plaintiff was ready, willing and able to purchase the property; that the defendant was at first not ready to close the transaction and so indicated to the real estate agent who advised her that •May 18 was the date selected by plaintiff; that this attitude of defendant was communicated to plaintiff, who believed that a later date would be agreed upon by the parties; that the defendant almost immediately sprung a surprise tender of the deed upon plaintiff at a time and place when she knew plaintiff could not possibly respond and immediately thereafter for her own purposes cancelled the contract; and that the plaintiff, therefore, being ready, willing and able to perform, was entitled to the return of her deposit.

This court, upon the state of the record, cannot say that error, prejudicial to defendant appears in the case, and the judgment is affirmed.

Judgment affirmed.

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