author: Ross, J.

text:
    Greenberg, Appellant, v. The L. I. Snodgrass Co. et al., Appellees.

      (No. 7698
    Decided March 23, 1953.)

      Messrs. Paxton & Seasongood, Mr. Joseph A. Segal and Mr. William T. Bahlman, Jr., for appellant.

      Mr. Jerome Goldman and Mr. John P. Strother, for appellees.
   Ross, J.

A motion was filed by tbe plaintiff to dismiss a so-called “cross appeal,” stated to have been filed in tbe case before us by tbe defendant.

An examination of tbe record, including tbe original papers and tbe transcript of tbe docket and journal entries, fails to show the filing of any notice of appeal in this cause by the defendant. Even if such notice of appeal had been filed, it would not be a part of this appellant’s appeal. There is no provision, either in our statutory procedural law applicable to appellate practice in the Courts of Appeals or in the rules of such courts, recognizing the right to file a “cross appeal.”

What the statutes do recognize and permit is the right of any party to file a notice of appeal from a judgment which he considers erroneously prejudicial to his rights in law or equity. Section 12223-15, General Code. When such a notice of appeal is filed and proper steps are taken to perfect the appeal in the Court of Appeals, such action by the party constitutes an appeal from such judgment, separate and distinct from any other appeal which may have been taken therefrom. No party can inject consideration of his appeal into a proceeding instituted and perfected by another party to the cause.

By virtue of Sfection 12223-21a, General Code, any appellee is given permission to file assignments of error, and the Court of Appeals, in case of reversal of the judgment of the trial court, is required to pass upon such assignments of error. The futility of this statute is shown in the case of New York, Life Ins. Co. v. Hosbrook, 130 Ohio St., 101, 196 N. E., 888, 118 A. L. R., 1283, where, in the second and third paragraphs of the syllabus, it is stated:

“The procedural doctrine announced in Gohman v. City of St. Bernard, 111 Ohio St., 726, is not consonant with the principles of judicial procedure upheld by the Supreme Court of this state. The claim that an inferior court can forestall review by our state Supreme Court rests upon a doctrine which is repugnant not only to our established judicial system but also to Section 2, Article IV, Constitution of Ohio, which confers on the Supreme Court express authority to ‘review, and affirm, modify or reverse the judgment of the Court of Appeals.’ (The first and second propositions of the syllabus in Gohman v. City of St. Bernard, supra, overruled.)

“Where, on a first hearing, a Court of Appeals has committed prejudicial error in determining the Taw of the case’ for the guidance of the trial court after remand, and, upon a later hearing adheres to such determination, this court, as the last state court of review, will disturb such former determination of the Court of Appeals and will reverse its judgment, where it results from such erroneous determination.”

What possible salutary effect is produced, therefore, by the provisions of Section 12223-21a, General Code?

In view of the decision of this court to merely modify the judgment of the trial court, the provisions of Section 12223-21a, General Code, are not considered applicable herein.

The motion of the plaintiff to dismiss the alleged “cross appeal” of the defendant is overruled, for the reason that no such appeal is presented by the record before this court.

The motion of the defendant to dismiss the appeal of plaintiff is also overruled, there being no showing that defendant was prejudiced by the delay of six days in filing the assignments of error and briefs of plaintiff.

The appeal of the plaintiff raises the primary question whether a deed to a lot in a city, described by subdivision numbers and metes and bounds, including a boundary along the line of a vacated street adjacent to such lot, transfers all interest of the grantor to one-half of the abutting portion of such vacated street, in the absence of definite reservations by the grantor clearly indicating that the appropriate portion of the vacated street was not conveyed by the deed.

The northern portion of the Stephen Kemper subdivision is located between Kenton street on the west, McGregor avenue (a vacated street) on the north, and Florence avenue on the east. Lots 62, 64, 66, 68, 70, 72, and 74 front on Kenton street. Lots 65, 67, 69, 71, and 73 front on Florence avenue. Lot 75 has a frontage on Florence avenue and McGregor avenue.

It is the one-half portion of vacated McGregor avenue, abutting upon the north line of lot No. 75, which is the subject of this litigation.

It appears from the record that McGregor avenue is 50 feet in width and extends westwardly from Concord avenue (a street extending north and south, which joins Florence avenue at a wide angle and at the northeast corner of lot 75) to Kenton street. The west boundary of lot 75 is a vacated alley, one-half of which has been included in deeds to lot 75. The rear of lot 75 is at the foot of a steep hill, some 50 feet high, which continues across McGregor avenue. It thus appears that the portion of vacated McGregor avenue, to the east of this steep hill, which is the area involved in this litigation, could not possibly be of any use to the property owners on McGregor avenue to the west of the brow of this hill.

The defendant has erected a building, occupying the north one-half of McGregor avenue, opposite lot 75 which is owned by the plaintiff. This leaves a space 25 feet in width and approximately 100 feet in length between the building of plaintiff located on lot 75 and that of defendant. This space extends from Concord street to the foot of the hill in vacated McGregor avenue and to all intents and purposes is a vacant lot 100 feet by 25 feet, to which access could be had only from Concord street. A sidewalk seven feet in width extends from Concord street along the north line of the building on lot 75, to the rear of the building and is the only means of access to the upper floor, north apartment in this building. The north line of this building is seven inches from the south line of MeGregor avenue, so that the major portion of the sidewalk is and has been for many years in McGregor avenue.

The plaintiff is now the owner of lot 75 and claims that he owns one-half of McGregor avenue adjacent to such lot No. 75 in fee, or that he has a right of way over the same, or that he has a right ofway over the sidewalk which extends along the north side of his building located on lot 75.

At the time McGregor avenue was vacated, one Harry Braudy owned lot No. 75.

What interest did Braudy acquire in this cul-de-sac, some 25 by 100 feet in area, upon such vacation?

In Kinnear Manufacturing Co. v. Beatty, 65 Ohio St., 264, 62 N. E., 341, 87 Am. St. Rep., 600, it is stated in the syllabus:

“Where a street or alley is vacated by a city, the vacated portion reverts to the abutting lot owners, subject, however, to such rights as other property owners on the street or alley may have therein, as a necessary means of access to their property.

“A property owner on a street or alley, a portion of which, other than the part on which he abuts, is vacated by the city council, has no right to enjoin the obstruction of the vacated portion by the owners to whom it reverted, where he has-reasonable access to his property by other streets and alleys, although the distance he may have to travel in some directions may be greater than before the vacation. To entitle a party to any relief in such cases, the inconvenience he suffers must differ in kind from that of the general public, and not only in degree.

“The rights of the lot owners in an addition, on the plat of which the' streets and alleys are indicated as dedicated to public use, are no greater than, nor different from, the rights of other lot owners upon other streets of the city.

“The provision in Section 2654, Revised Statutes, that when a street or alley is vacated by a city council, ‘the right of any lot owner shall not be impaired thereby, ’ simply preserves such rights as the lot owner had in the street or alley by existing law. It creates no new rights. ’ ’

To the same effect is New York, Chicago & St. Louis Rd. Co. v. Bucsi, 128 Ohio St., 134, 190 N. E., 562, 93 A. L. R., 632.

Applying these authorities to the question presented, as framed in the facts and circumstances of this case, it appears that Braudy to all intents and purposes owned a fee in such cul-de-sac, i. e., the one-half of McGregor avenue, abutting on lot 75, after it was vacated. No other property owner on McGregor avenue could have any interest in this cul-de-sac, especially as all such owners had access to the general street system of the city of Cincinnati.

It now becomes necessary to review the several incidents which resulted in the plaintiff’s title to lot No. 75.

From the record it appears that on December 10, 1925, Harry Braudy was the owner of lot No. 75, in Kemper’s subdivision in the city of Cincinnati.

On October 27, 1926, McGregor avenue was vacated by' ordinance of the council of Cincinnati.

An alley to the west of lot No. 75 had been vacated previously to the acquisition of such lot by Braudy.

On November 29, 1927, Braudy conveyed lot No. 75 to Incornato Coletta. The description in this deed furnishes a basis for the principal controversy between the parties to this action. Included in this conveyance were lots other than lot No. 75.

The description employed in this general warranty deed is as follows:

“The following described real estate situate in the city of Gincinnati, county of Hamilton, and state of Ohio, and being known as all of lots 67, 69, 71, 73 and 75 of the subdivision made by the heirs of Stephen Kemper, as the same is recorded in plat book No. 1, pages 12 and 15, of the plat records of Hamilton county, Ohio, together with the east half of Farran alley, vacated, which part of said alley is described as follows :

“Beginning at a point in the south line of McGregor avenue one hundred (100) feet west of Florence avenue; thence west along McGregor avenue, ten (10) feet, and from said point extending southwardly between parallel lines at right angles to McGregor avenue a distance of one hundred (100) feet to the south line of lot No. 69 of said subdivision, above mentioned, extended westwardly to the center of said alley, and being the same premises conveyed to the grantor herein by Samuel Goldberg by deed recorded in deed book 1378, page 343 of the deed records of Hamilton county, Ohio.

“Said entire tract being more particularly described as follows, viz: Beginning at a point in the west line of Florence ave. where the same is intersected by the south line of McGregor avenue; thence west with the south line of McGregor avenue, one hundred and ten (110) feet to the center of the vacated alley; thence south along the center of said alley, one hundred (100) feet to a point; thence east on a line parallel with the south line of McGregor avenue ten (10) feet to the west line of lot No. 67; thence south with the west line of lot 67, twenty-five (25) feet to the south line of lot 67; thence east with the south line of lot 67, twenty-three (23) feet more or less to the west line of Florence avenue; thence north along the west line of Florence ave. one hundred and thirty (130) feet, more or less to the place of beginning, and being the same premises conveyed to Harry Braudy by two deeds one from Samuel Goldberg and wife, dated December 10, 1925 and recorded in deed book 1378, page 343, and the other from Morris Kasfir, et al., dated December 10, 1925 and recorded in deed book 1374, page 572, records of Hamilton county, Ohio.

“And all the estate, title and interest of the said Harry Braudy either in law or equity of, in and to the said premises; together with all the privileges and appurtenances to the same belonging, and all the rents, issues and profits thereof. ’ ’

It is evident that Braudy at the time he executed the Coletta deed knew he owned one-half of the vacated alley to the west of lot No. 75, for the metes and bounds description in the deed from Braudy included such one-half, and it is also apparent from facts to be recited that Braudy did not know he owned the abutting one-half of the vacated McGregor avenue at the time he executed the Coletta deed. So, in passing, it is plain that he could not and did not include in his deed to Coletta any words reserving transfer of his interest in the cul-de-sac constituting the one-half of McGregor avenue abutting on lot No. 75.

By various mesne conveyances the plaintiff ultimately acquired the title to lot No. 75.

In the chain of title of the plaintiff appears a deed dated November 29, 1927, from Harry Braudy to Incornato Coletta; a deed dated October 23, 1929, from Incornato Coletta (Braudy’s grantee) to Antonio Coletta; a deed dated January 15, 1937, from the heirs of such grantee to Maurice Stoller; and a deed dated August 6, 1937, from such grantee to plaintiff.

After the vacation of McGregor avenue in 1926, taxes on the abutting south one-half thereof were assessed against Harry Braudy. Such portion of the vacated street was placed on the tax duplicate in the name of Harry Braudy and there remained until sold in 1950 by Braudy to the defendant. The taxes remained delinquent until 1937, when Braudy made arrangements to pay the same, and he continued to pay taxes thereon until 1950.

The defendant, after the conveyance to it, threatened to erect a building on its property, including the abutting south one-half of vacated McGregor avenue. The instant litigation was instituted to secure a declaration of the rights of plaintiff, alternative positions being presented as hereinbefore noted. The manner in which Braudy became aware that the abutting vacated portion of McGregor avenue was listed in the county records in his name for taxes was through a man by the name of McKeehan, who was, successively, a tenant of Coletta, Stoller, the plaintiff, and Braudy. From the record it appears that McKeehan rented a portion of the premises located on lot No. 75 from Coletta in 1930.

McKeehan testified as follows:

“Q. Who was the owner? To whom did you pay rent for the apartment? A. I paid rent, and my dad paid rent for the two lower apartments at 2251 Florence avenue, and second floor, with the idea that wo could use the adjoining lot in our business for parking, and we rented it at that time and continued to use the same until 1937 when we changed and paid rent to Mr. Braudy.

“Q. Now, from 1930 to 1937, to Avhom did you pay rent for that property? A. We paid rent to Mr. Coletta.

‘ ‘ Q. When you moved in there, was anything said by you to Mr. Coletta with regard to the use of the vacated land? A. Yes, he said that that lot belonged to that side of the house and by renting the two flats, we would have possession of the entirety.”

This tenant placed an ice house on McGregor avenue, which he used from 1930 until 1937.

McKeehan testified further:

“A. In 1937 the property had changed hands about a year before, and it was then owned by Mr. Stoller of whom they tried to interest me in tbe purchase of the property.

‘ ‘ Q. When you say property, what property do you mean? A. The house, and the lot of which he represented went with the house. He gave me a card of general information on the property, taxes, etc., and I went down to the court house to check against the card regarding the taxes, and on the plat I found as to where a Mr. Brandy was the owner of the adjoining lot.

“Q. What plat was that, the auditor’s plat? A. In the auditor’s office, that’s right.

“Q. And that showed the adjoining lot in Mr. Braudy’s name? A. That’s right. On Mr. Stoller’s return in regard to the purchase of the property, I told him what that I had found, and he said that evidently * * *.

“Mr. Strother: We object to what he says.

‘ ‘ Q. Did you then go to see Mr. Braudy ? A. He suggested that we look up Mr. Braudy and try to purchase the lot.

“Q. Did you look him up? A. That’s right, so I looked Mr. Braudy up and at the time that I found Mr. Braudy he was in the hotel on Sixth street. I consulted him about the property. Mr. Braudy said that he no longer was interested in the property as he had sold it some years before. '

“Q. What property was that that he was talking about? A. The property on Florence avenue.

“Q. The vacant lot or the building that he said he had no interest in it? A. I didn’t speak of it particularly as the vacant land. I said the property. So I told Mr. Braudy that on my information at the court house, that I found that he was the owner of the lot that adjoined the property. I asked him if he wished to sell it, and he said that he at first would have to consult Ms attorney. Several days later there was a meeting between Mr. Stoller, Mr. Braudy, and myself, and at the meeting Mr. Braudy wanted a thousand dollars for the lot, of which that I refused. I wasn’t interested at that price. So Mr. Braudy said that he then would want to rent it to me at $35 a month, which I told him was too high, that I had made arrangements with the man next door to move on his lot for $10 a month. So he said if I would then consider to stay, that I oould have the lot for $10 a month, of which I have been paying ever since up until April of 1950.

“Q. And when you spoke to Mr. Braudy about buying or purchasing or leasing the lot, that was the first time you had ever spoken to him? A. That’s right, sir.

“Q. And you knew at that time, did you not, that Mr. Stoller owned the building. A. That’s right.

“Q. So that I take it which you were seeing Mr. Braudy about was to buy or lease the lot? A. That’s right.

“Q. And what if anything did Mr. Braudy say as to his ownership of the lot the first time you spoke to him? A. He said thht he had no more interest in it, that he had sold the property some time before.”

This witness testified further that a sidewalk had extended along the north side of the building on lot 75, from Concord street back to the rear of such building, since his occupancy of the upstairs apartment in 1930, so that apparently the sidewalk was in its present position when the property was acquired by Braudy and prior to its sale to Coletta, and when McKeehan became a tenant of a part of it.

The defendant predicates his claim to title and occupancy of the abutting south half of McGregor avenue upon Braudy’s deed to him and Braudy’s title thereto. If Braudy sold his right in such one-half of the vacated street to Coletta, then the plaintiff is entitled to a declaration awarding him all the rights in vacated McGregor avenue which Braudy acquired upon the vacation thereof, which, as has been noted hereinbefore, amounted to a full fee in the abutting one-half portion.

Reviewing the facts stated, it is obvious, as herein-before noted, that when the vacation of McGregor avenue occurred, Braudy was ignorant of the law by which he acquired certain rights in the abutting one-half of the vacated street. This is clearly shown by his failure to pay the taxes assessed against the one-half of the street attaching to lot No. 75, his failure to exercise any dominion over it, although it was obviously occupied by a sidewalk and building (or ice house), which both were openly antagonistic to his rights, his statement of his ignorance of such rights to McKeehan, and his statement that he had no interest whatever in the vacated street. The accretion to lot 75 was not something personal to Braudy. It was an addition by law to the adjacent property, so that when the principal property, lot No. 75, was transferred and conveyed, the vacated abutting area automatically went with it. Although there is authority to the effect that real estate may not be appurtenant to real estate, it is evident from the full terms of Braudy’s deed to Coletta that he intended to convey all of lot No. 75 and anything that was appurtenant thereto. It must be apparent that he concluded that any interest in the culde-sac went with lot No. 75, since he stated he had no interest in it.

It appears from the evidence that Braudy was physically disabled by an infirmity, and it becomes clear that he wished to dispose of all he possessed in connection with lot 75 and the lots adjacent thereto.

The promulgation of a principle of law by which a vacated street abutting real estate should be permitted to dangle indefinitely in a nebulous state of ownership after a deed of the principal lot without reservation would present a state of uncertainty not to be desired as a part of our law pertaining to real property.

This is much more artistically stated by the late Chief Justice Taft in the case of Paine v. Consumers’ Forwarding & Storage Co., 71 F., 626, 632, in an opinion written by him when he was a judge on the Sixth Circuit Court of Appeals:

“The evils resulting from the retention in remote dedicators of the fee in gores and strips, ■ which for many years are valueless because of the public easement in them, and which then become valuable by reason of an abandonment of the public use, have led courts to strained constructions to include the fee of such gores and strips in deeds of the abutting lot.”

Although the authorities are not unanimous upon the subject, we consider the better rule to be that, regardless of whether the boundary lines mentioned in a deed are along the line of a street or simply along a street, in the absence of words of reservation, the grantor conveys title to one-half of that portion of a vacated street abutting upon the property sold, subject to the easement of other property holders on the street who may need the vacated street for purposes of ingress and egress to and from their abutting properties.

In Mount Union College v. Mistelski, 22 N. P. (N. S.), 504, 31 O. D., 219 (a case in which the judgment was affirmed by the Court of Appeals upon the reasoning and conclusions of the judge of the Court of Common Pleas), it is stated in the opinion at page 514:

“Therefrom, I think, it may be deduced that it is very unusual and almost unprecedented for a land owner to sell the abutting property, and at the same time retain the fee of the highway, subject to the easement, and that only in a case where there is an affirmative showing that such was the intention of the parties from the instruments and all the circumstances of the case should such a drastic and exceptional situation be recognized. I, therefore, feel that in the light of Keer v. Commissioners, supra; Atchinson & Topeka R. R. Co. v. Patch, 28 Kansas, 470; Paine v. Storage Co., supra; Holloway v. Southmayd, 139 N. Y., 390; Elliott on Roads and Streets, Section 1190, that the latter authorities recognize the more just rule.

“Applying those principles under which those cases, upon these points, are decided, on both sides of the question, the conclusion that I have reached is that under the Ohio law, a property right which by accretion passed to the owner of the abutting lot, in the absence of any express provision or intention to the contrary, at the time of executing the land contract, must pass to and become the property of the plaintiff under said land contract, as a part of the privileges and appurtenances thereunto belonging.”

To the same effect is Paine v. Consumers’ Forwarding & Storage Co., 71 F., 626, 629, noted, supra, and Finlaw v. Hunter, 87 Ohio App., 543, 96 N. E. (2d), 319.

Bearing in mind that Braudy as grantor was ignorent of his rights in the vacated McGregor avenue; that, therefore, he could have used no words of reservation as to such rights in conveying lot No. 75 to Coletta; and that such conveyance constituted a full and complete transfer of any title and all right, title and interest Braudy had in such lot abutting on McGregor avenue, we conclude that by such conveyance Braudy transferred to Colletta and his heirs and assigns all his interest in the vacated McGregor avenue, which by law may have accrued to such lot No. 75 while Braudy held title thereto.

It, therefore, appears from the authorities noted that Braudy conveyed what interest he acquired upon vacation of McGregor avenue by the deed to Coletta, and that, since the plaintiff through mesne conveyances has acquired all interest so acquired by Braudy, the plaintiff has essentially all the rights in the one-half portion of McGregor avenue abutting on his property which he would have if he possessed the full fee thereof. The only outstanding interest against such fee would be the easements of other property owners on McGregor avenue who had no other means of access to the city street system, and the record shows that none exists.

It is our further conclusion that the undisputed facts show that the plaintiff, as a successor grantee of Braudy, is entitled to all the rights which Braudy had in the vacated McGregor avenue cul-de-sac at the time of his conveyance to Coletta, and that the defendant, claiming under deed from Braudy has no rights in the south one-half of such vacated McGregor avenue and will be enjoined from asserting any rights in such vacated street antagonistic to the rights of the plaintiff acquired by mesne conveyance from Braudy, being all the rights that Braudy acquired by virtue of the vacation of McGregor avenue and his title to property abutting thereon at the time of such vacation.

Manifestly, the defendant has no right to erect a building or other obstruction in the abutting south one-half of McGregor avenue.

The judgment of the trial court is modified in conformity to this opinion, and final judgment in this court entered accordingly.

Judgment accordingly.

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


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Chastang, Appellant, v. The Mutual Life Ins. Co. of New York, Appellee.
    (No. 4631
    Decided April 8, 1952.)

      Mr. Ed. D. Schorr and Mr. Charles J. Chastang, for appellant.

      Messrs. Wright, Harlor, Pur pus, Morris S Arnold, Mr. Wm. Marshall Bullitt and Mr. Louis W. Dawson, for appellee.
   Per Curiam.

This appeal is on questions of law from a judgment of the Common Pleas Court dismissing plaintiff’s action for a declaratory judgment as to his rights as insured under a certain policy of life insurance with double indemnity and permanent disability benefits.

Four errors are assigned, the first of which is:

“The trial court committed prejudicial and therefore reversible error in holding that the petition of the plaintiff should be dismissed and judgment be entered for the defendant.”

The answer to this assignment of error depends upon the correctness of the judgment of the trial court on the merits. If the plaintiff is entitled to the relief prayed for, then, manifestly, the court erred in dismissing his petition and in entering judgment for the defendant. It may be that on the decision of the trial court there should have been a declaration of rights of the parties, which declaration, if entered, would have been in accord with the contention of the defendant as to the meaning and intent of the policy under consideration.

If the trial court was correct in the conclusion reached in its decision, the failure to enter a declaratory judgment in conformity thereto on behalf of the defendant, if erroneous, could not have been prejudicial to the plaintiff.

The trial court based the judgment of dismissal on an interpretation of the meaning of the policy as to the extent of its loan value to the plaintiff and did not give attention to the sufficiency of the proof of the petition in other aspects. Defendant raises the substantial question of whether the proof establishes an essential element of a declaratory judgment action, viz., whether there is a justiciable controversy between the parties. If not, the judgment of dismissal is correct both in form and substance.

The petition alleges that:

“Defendant has refused, and continues to refuse to loan to him, on the sole security of his said policy, a sum of money equal in amount to the amount of the reserve at the end of the current policy year on the policy and on dividend additions thereto, less interest in advance on such loan to the end of the current policy year, contrary to, and in violation of, plaintiff’s contractual rights and defendant’s contractual obligations under.the said policy and the statutes of Ohio applicable thereto.”

This averment is supported by a letter dated January 28, 1948, from plaintiff to defendant and the answer thereto dated February 9, 1948.

We do not doubt that plaintiff had the right to institute an action for a declaratory judgment under Sections 12102-1 and 12102-2, General Code, and his right is not affected by the fact that he may have another remedy. Section 12102-1, General Code; Flowers v. Metcalf, Exr., 4 Ohio Opinions, 301, 4 Ohio Supp., 177; National Bank of Lima v. Squire, 22 Ohio Law Abs., 85; Village of Bay v. Gelvick, 58 Ohio App., 51, 15 N. E. (2d), 786.

Defendant argues that plaintiff may not maintain a class suit. This is immaterial at this juncture of the case because no relief whatever is awarded to him by the judgment under review. If he is entitled to prevail upon his construction of the policy, a judgment in his behalf, at least, would properly follow. Whether he may maintain an action on behalf of others is not presented on this appeal.

The second error assigned is:

“The trial court committed prejudicial and therefore reversible error in failing to sustain exceptions by plaintiff to self-serving declarations made by defendant in answers filed in the trial court to plaintiff’s interrogatories. ’ ’

We do not find this assignment well made. If the objection of plaintiff to a part of the defendant’s answers to plaintiff’s interrogatory No. 1 had been sustained it would not materially affect the answer of defendant nor assist the cause of the plaintiff.

That part of the answer to interrogatory No. 2 to which the plaintiff objected is not responsive to the interrogatory, is a conclusion of the defendant and could well have been stricken, but it does not affect the sufficiency of the factual development in the remaining subject matter of the answers respecting the.issue on the pleadings.

Objection was made by the plaintiff to the answer to interrogatory No. 3 upon the claim that it did not contain competent testimony because, in conjunction with the answer to interrogatory No. 2, the defendant assumed that the form of the policy had been duly filed by the defendant with the division of insurance in the state of Ohio and accepted and filed by said division through its Superintendent of Insurance in compliance with the laws of the state of Ohio. It is urged that the statements were self-serving and contained conclusions concerning which the defendant was not qualified to speak, viz., the acceptance by the division of insurance through its superintendent in compliance with the laws of the state of Ohio. The defendant could properly testify that the policy had been duly filed by it with the division of insurance and the acceptance and filing, no doubt, were evidenced by some formal notation known to defendant which would support the statement that it had been accepted and filed, and it was a permissible conclusion to say that the filing of the policy was in compliance with the laws of the state of Ohio. The fact that the policy was issued raises a presumption that it was authorized to be issued by the Superintendent of Insurance. Section 9410, General Code.

The principal and material assignments of error are those set forth in the third and fourth, viz., that the court erred “in failing to hold that defendant, under the said policy of insurance and said G. C. Section 9420, subparagraph 7, is required to loan to plaintiff on the sole security of his said policy of insurance a sum of money equal in amount to the amount of the reserve at the end of the current policy year on the said policy and on dividend additions thereto, less interest in advance on such loan to the end of the current year, ’ ’ and in entering judgment in contradiction of plaintiff’s claim.

The question presented by these assignments of error is interesting and relates to the meaning of the applicable sections of the policy in the light of subdivision 7 of Section 9420, General Code (99 Ohio Laws, 139, 172), as it affects the right of the plaintiff to secure a loan in the amount to which he claims he is entitled from the defendant company.

Counsel have filed complete and unusually helpful briefs and have included the written opinion of the Common Pleas Court. We have carefully read these briefs, considered the issues, and examined the determinative question at length. We are in accord with the conclusions reached by the trial court in its written opinion and the reasons therefor. Inasmuch as we could add little, if anything, to this opinion, no good purpose would be served by expanding the literature incident to this case by further discussion.

We merely add this observation that the table of cash and loan values set out in appellant’s policy is not required by present Section 9420, General Code, but by a form set out in an earlier section of the chapter. The approval of the Superintendent of Insurance of the form of the policy does not of itself, in our opinion, preclude the construction contended for by the plaintiff.

The pertinent part of subdivision (7) of Section 9420, General Code (99 Ohio Laws, 139, 172), read:

“A provision that after three full years’ premiums have been paid, the company at any time, while the policy is in force, will advance, on proper assignment of the policy and on the sole security thereof, at a specified rate of interest, a sum equal to * * * the reserve at the end of the current policy year on the policy and on any dividend additions thereto, specifying the mortality table and rate of interest adopted for computing such reserve * * (Emphasis ours.)

This provision, in our judgment, is ambiguous. That part reading, “the company at any time * * * will advance * * * a sum equal to * * * the reserve at the end of the current policy year on the policy and on any dividend additions thereto,” without more, lends aid to plaintiff’s contention as to its meaning. If it ended with that part which we have quoted the defendant would be hard put to avoid the granting of a loan on the reserve and on dividend additions, however computed, which have been allocated to the policy. However, “such reserve” refers to a reserve computed upon a mortality table. Manifestly,' the reserve could not be computed on a mortality table as to the double indemnity for accidental death and permanent disability clauses of the policy. The method of computing the reserve specifically required by the proviso resolves the ambiguity in favor of the contention of the defendant.

The judgment is affirmed.

Judgment affirmed.

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


author: Collier, J.

text:
    In re Claim of Kincade in Connection with Elimination of Grade Crossing over Tracks of The Baltimore & Ohio Rd. Co. in Village of Guysville, Athens County.
    (No. 518
    Decided July 15, 1953.)

      Messrs. Rowland, Bridgewater & Gray, for appellee.

      Mr. C. William O’Neill, attorney general, Mr. Hugh E. Kirlcwood, Jr., and Mr. R. W. Fensterwald, for aplants.
   Collier, J.

The Director of Highways, through the Attorney General of Ohio, filed an application in the Common Pleas Court of Athens County for a determination of the damages which should be awarded to the land owners as claimants on account of the relocation of a portion of U. S. route No. 50 in the unincorporated village of Gruysville in Athens county. For convenience the applicant will be designated as the director and the land owner as the claimant. The application included other claimants in addition to Hattie M. Kincade, but in this appeal we are concerned only with her claim.

In the trial court, the director took the position that the claimant was not entitled to any damages for the reason there was no physical appropriation of any of the surface of her land, but merely an impairment or interference with the access to and from her property. Any question that may have existed on this proposition has been definitely settled in the cases of Smith v. Erie Rd. Co., 134 Ohio St., 135, 16 N. E. (2d), 310, and State, ex rel. McKay, Exr., v. Kauer, Dir., 156 Ohio St., 347, 102 N. E. (2d), 703. These cases hold, in substance, that the owner of real property has an easement in the public street or highway on which his property abuts as axx appux’tenanae thereto; that any substantial change of the grade or location of the highway upon which the property abuts renders the buildings thereon less convenient of access and is an appropriation pro tanto of the property right in the easement for which compexxsation may be required; and that a physical taking of the property is not necessary under these circumstances to entitle an abutting owner to damages. In this court, the director concedes this to be the law, and the question is not stressed.

A jury trial was waived by the director and the claimant and the question of damages was submitted to the court. A rather lengthy hearing was had and, upon consideration of the evidence, the eourt determined the amount of damages due the claimant to be $10,500. A motion for a new trial was filed on the ground that the amount allowed is excessive. The motion was overruled and judgment was entered against the director for this amount.

The single issue on this appeal is that the amount of damages determined by the trial court is excessive and against the manifest weight of the evidence.

The case was earnestly contested, 17 witnesses in all giving testimony on the question of the value of the claimant’s property before and after the relocation of the highway. Five witnesses appeared for the state and twelve for the claimant. There is a wide variance in the opinions of the witnesses as to values. The lowest opinion expressed by the witnesses for the state as to the value of the claimant’s property is $2,500 before the improvement and $1,800 after the relocation of the highway. The highest opinion as to value given by a witness for the state is $6,100 before the change and $4,600 after the change. Likewise, there is a wide variance in the amounts suggested .by witnesses for the claimant. The lowest opinion given by a witness for the claimant states $5,000 before the relocation of-the highway and salvage value after the change. The highest opinion expressed by claimant’s witnesses is $15,000 before the change and no market value after the change. At least six witnesses for the claimant suggested the amount of damages due the claimant in a sum higher than the amount determined by the trial court. This evidence was properly received for the reason that in a case of this kind there is a wide discretion in the trial court in the submission of opinion evidence. As the trier of the facts, the trial court was also the judge of the credibility of the witnesses.

For a great many years prior to this project by the director to eliminate a grade crossing, claimant’s property abutted on that portion of old U. S. route No. 50 which was vacated and was designed and occupied as a mill site for the grinding and merchandising of mill feed in trade with the farmers of the surrounding community, and also with the traveling public on' such highway. The property fronting on the highway, there was easy and ample access to claimant’s mill. In making the improvement, U. S. route No. 50, was relocated several hundred feet westwardly, the old route in front of claimant’s property was abandoned, and a bridge across the Hocking river immediately to the north of plaintiff’s mill site was removed. The only access claimant and her customers now have to her property is an indirect, narrow and sloping road which requires all traffic to cross the Baltimore & Ohio Railroad tracks whereas, heretofore, only those traveling from the north to the mill had to cross the tracks. By reason of these facts, it is easily understood why there would be wide variations in the opinions of the witnesses as to the amount of damages sustained by the claimant in the relocation of the highway.

Reviewing courts are reluctant to disturb a verdict for inadequacy or excessiveness in the absence of any showing of passion or prejudice and where the witnesses’ opinions vary widely. Fosdick v. City of Cincinnati, 19 Ohio Law Abs., 574, appeal dismissed, 129 Ohio St., 678, 196 N. E., 425; Gano v. Cleveland, Cincinnati, Chicago & St. Louis Ry. Co., 33 Ohio App., 142, 168 N. E., 566; Batterman v. City of Cleveland, 18 C. C. (N. S.), 446, 33 C. D., 149; and Maxa v. Cleveland Union Terminals Co., 2 Ohio Law Abs., 661.

In the Fosdich case it is said:

“A verdict based on the opinions of witnesses for one side cannot be said to be manifestly against' the weight of the evidence, where sustained by the preponderant opinion of the witnesses in number, and of equal credibility and impartiality. ’ ’

It is said also in the Fosdick case:

“In no case is the court authorized to reverse on the ground of the weight of the evidence excepting when it is able to say that reasonable minds could not differ. In a case where the issue is one that is not susceptible of exact knowledge and rests wholly in opinion or judgment, there is added reason for having regard for the determination of the jury.”

We see no reason why the same rule would not apply where the trial court acts as the trier of the facts.

Applying these rules of law as above set forth to the evidence in this case, especially when we consider that six of the 17 witnesses expressed opinions as to value and damages higher than that determined by the trial court, we cannot say the judgment is not supported by the evidence or is contrary to the weight thereof. Upon this evidence, and taking into account present inflated values of real property, we will not disturb the judgment on the ground of excessiveness of the award. The judgment of the Common Pleas Court is affirmed.

Judgment affirmed.

Gillen, P. J., and McCurdy, J., concur.


text:
    Thompson, Appellee, v. Samuel et al., Appellants. Samuel, Appellant, v. Thompson et al., Appellees.
    (Nos. 7746 and 7747
    Decided June 22, 1953.)

      Mr. John M. McCaslin and Mr. Richard H. Pennington, for appellee Edward Thompson.

      Mr. Sol Goodman, for appellant William M. Samuel.
   Per Curiam.

These two appeals on questions of law arise out of the same action in the Common Pleas Court of Hamilton County.

Case No. 7746 is a proceeding to vacate a judgment rendered in such action, based upon a petition filed in the original action more than three years after such judgment, on grounds other than a conviction for perjury involving false testimony. The judgment in the original action was entered on June 7, 1949. The petition to vacate the judgment in such action was filed on October 31, 1952. No conviction for perjury of one testifying was alleged. Such proceeding to vacate was barred by the statute of limitations, which fact appeared in the pleadings, record, and opening statement of counsel seeking such vacation of the judgment. Section 11640, General Code.

There was no error in the judgment of the trial court in such proceeding in rendering judgment for the defendant therein on the pleadings and the opening statement of counsel. The judgment in ease No. 7746 is, therefore, affirmed.

In case No. 7747, an independent action was commenced seeking to vacate the judgment rendered in the original action. The grounds stated in the petition in such independent action to vacate were:

1. Fraud on the plaintiff.

2. False testimony.

3. Unavoidable illness of the trial judge.

4. Death of such trial judge.

5. Mistake and negligence of the plaintiff's lawyers in failing to file in due time, according to rule, a motion for new trial.

By virtue of the provisions of Sections 11631 and 11640, General Code, a proceeding to vacate a judgment for fraud must he commenced within two years from entry of such judgment. The judgment attacked was entered on June 7, 1949; the proceeding to vacate was instituted on May 17, 1952. More than two years, therefore, elapsed before the commencement of the proceeding to vacate, so that as to fraud under the statute, this claim was barred.

It is true that an independent suit in equity may be instituted, and that this proceeding was such an independent action.

Considering an action in equity to set aside a judgment for fraud, it is stated in 23 Ohio Jurisprudence, 1274, “Judgments,” Section 1216:

“However, the fraud or undue advantage for which a court of equity will set aside a judgment or decree must consist of extrinsic acts outside of and collateral to the matter actually tried by the first court and not related to the matter concerning which the judgment or decree was rendered.”

Nowhere in the pleadings or opening statement are facts stated showing any fraud other than that claimed to have existed in the gist- of the main action. Counsel for the defendant in the principal action, referring thereto, stated: “I claim that the whole case was a fraud — that first case — the whole case was a fraud. It wasn’t the truth at all. That is what I intended to say. ’ ’ Manifestly, the fraud charged was not extrinsic to the main action. Haynes v. United Insurance Co., 48 Ohio App., 475, 194 N. E., 381.

The second ground for vacation is based on false testimony. This does not constitute a basis for an action under the statute until after conviction of the witness or party claimed to have been guilty of perjury. Mason v. Tremayne, 115 Ohio St., 398, 154 N. E., 732.

It is dear that the illness of the judge and his death had no effect on the defendant’s situation.

It appears from the record before this court that in the original action, a jury rendered a verdict for the plaintiff on May 24, 1949. A motion for a new trial was filed by the defendant in the original action on May 27, 1949, just three days after such verdict. It is evident that such defendant erroneously considered the practice authorized before 1945 as applicable. No judgment at the time of filing the motion had been entered. This court in case No. 7369 (Thompson v. Samuels [unreported]), decided March 12, 1951, found that such motion for new trial was improperly filed, and that the trial court was without jurisdiction to grant a new trial, and ordered the motion stricken from the files of the trial court, which, under the mandate of this court, was done. This left the original judgment in full force and effect and the actions here considered were instituted to vacate the same.

Bule X of the Common Pleas Court provides in part:

“Within three days following a jury verdict, counsel for the prevailing party shall prepare and submit to opposing counsel for endorsement, and submit to the court, a journal entry of judgment in conformity with the verdict, unless a motion for judgment notwithstanding the verdict has been filed within such time or the court orders the case reserved for future argument or consideration. If no entry is presented to the court within that time, the clerk of court shall then prepare an entry of judgment which shall be approved by the court and ordered journalized.”

It is apparent, therefore, that the motion for new trial was filed on the day the judgment would normally have been filed or before the time that other contingencies could occur.

Claim is made by the defendant in the original action (plaintiff in the proceeding to vacate the judgment) that counsel for the plaintiff unduly delayed presenting the entry of judgment, thus leading the defendant astray. This contention is untenable, in view of the facts previously stated.

It appears from what is before us that about the time the motion for new trial was erroneously filed and judgment entered, the trial judge became ill and died, and that another judge considered the motion and granted same. Such fortuitous events may not in any way be considered as supporting the position of the party seeking vacation.

The fifth and last claim is, of course, wholly untenable. The plaintiff in the vacation proceeding may not profit therein by his own neglect in the principal action, even though such neglect is based upon an erroneous conception of law. The action of the successor judge in the principal action in entertaining the invalid motion for new trial and granting same was, as this court previously found, erroneous. The error thus occurring was invited by the defendant in the principal action, and he may not complain of any consequence which was the result of his erroneous action. Lester v. Leuck, 142 Ohio St., 91, 50 N. E. (2d), 145.

Some claim is made that by reason of the appeal the time for applying' the statute of limitations should run from the time the mandate of this court became effective, and that this court should not have reversed the judgment of the trial court. Again, the defendant may not profit by a delay which was the result of his own error.

On no basis alleged in his pleading or statement in the vacation proceeding is the defendant in the principal action entitled to a vacation of the judgment therein.

The action of the trial court in the vacation proceeding which was commenced as an independent action, i. e., No. 7747, is, therefore, sustained, and the judgment in such action is affirmed.

Judgments affirmed.

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


author: Hornbeck, P. J.

text:
    Royal Jewelers, Inc., Appellee, v. Tanner; Victory Motor Express, Inc., Appellant.
    (No. 2170
    Decided April 10, 1952.)

      Messrs. Shaman, Winer, Shulman & Ziegler, for appellee.

      Mr. William A. Swaney, for appellant.
   Hornbeck, P. J.

This appeal is prosecuted by the defendant Victory Motor Express, Inc. Tbe judgment under review was entered by tbe Municipal Court of the City of Dayton, on behalf of the plaintiff and against such defendant.

The cause of action is predicated upon a check drawn upon The Farmers Bank, New Lebanon, Ohio, the maker of which was defendant Victory Motor Express, Inc. The check was payable to defendant Maynard Tanner, who indorsed it to plaintiff.

The statement of claim alleges that “ Payment of said cheek was duly demanded at the bank upon which it was drawn at maturity but same was not paid because the defendant, Victory Motor Express, Inc., had the payment stopped on same. ’ ’

A default judgment was taken against defendant Tanner.

There is no dispute in the evidence. The facts developed disclose that there was no consideration for the check, although this was not known when it was drawn by the duly authorized agent of the defendant Victory Motor Express, Inc. However, defendant Tanner received value from the plaintiff when he had it cashed, and if the check is a negotiable instrument the plaintiff was a holder in due course. Prior to the time of its presentment for payment, the maker had stopped payment on the check. Thereafter the indorsee made demand for payment both upon defendant Victory Motor Express, Inc., and upon defendant Tanner. Payment being refused, this action was instituted. As we understand the contention of the defendant, appellant, the determinative question presented is whether the check here under consideration was a negotiable instrument.

It is déveloped further that the check was cashed by the plaintiff on the day it was drawn, and that defendant Tanner indorsed it on that day, applying some of the proceeds on an old account, some on a purchase made at the time, and receiving the balance in cash. Four days after the check was given, the maker instructed the bank not to pay it, and when the indorsee presented it to the bank upon which it was drawn', payment was refused.

We shall not labor the question or attempt to cite extended authorities because we believe the issue is clearly determinable by the applicable and controlling sections of the Negotiable Instruments Act.

Section 8290, General Code, defines a check:

‘ ‘ A check is a bill of exchange drawn on a bank payable on demand. Except as herein otherwise provided, the provisions of this division applicable to a bill of exchange payable on demand apply to a check.”

Section 8231, General Code, defines a bill of exchange as follows:

“A bill of exchange is an unconditional order in writing addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand or at a fixed or determinable future time a sum certain in money to order or to bearer.”

A bill of exchange and a check are included in the term “commercial paper.” 10 Corpus Juris Secundum, 406, Section 3. A check is a complete negotiable instrument. Kullberg Mfg. Co. v. Smith, 173 Minn., 504, 216 N. W., 249, 218 N. W., 99. This check was due and payable on demand at the bank upon which it was drawn.

Section 8165, General Code, provides:

“By making it, the maker of a negotiable instrument engages that he will pay it according to its tenor, and admits the existence of the payee and his then capacity to indorse. ’ ’

Section 8166, General Code, provides:

“By drawing the instrument the drawer admits the existence of the payee and his then capacity to indorse; and engages that on due presentment the instrument will be accepted and paid, or both, according to its tenor, and that if it be dishonored, and the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder, or to any subsequent indorser who is compelled to pay it. * * *”

In Cummings v. Kent, 44 Ohio St., 92, 4 N. E., 710, 58 Am. Rep., 796, it is held that:

“By the act of drawing and issuing a bill of exchange, the drawer contracts that it will be accepted and paid according to its terms, and that if it is not he will pay it. ’

A holder in due course is defined by Section 8157, General Code. The plaintiff here meets all of the requirements of the statute as to a holder in due course. The second condition in the section is applicable, viz., “that he became the holder of it before it was overdue and without notice that it previously had been dishonored, if such was the fact. ’ ’

The extent to which an indorsee of a negotiable instrument in good faith will be protected is illustrated by the syllabus of Miller Brothers Star Shoe Co. v. Griffiths, 11 Ohio App., 277:

“One who purchases of the payee in good faith by indorsement and delivery for value, before maturity, a negotiable promissory note without notice of any infirmity in the instrument or defect in the title, is a holder in due course, even though a receiver of the property of the payee had been appointed and qualified, the purchaser having no knowledge of that fact, and the receiver never having been in actual possession of the instrument. ’ ’

We have examined the cases cited by defendant, but find that they are not applicable to the factual development here. Some of them differentiate between checks and other types of negotiable instruments. Some of them treat of the right of the maker, as between him and the payee, to stop payment on a check. Speroff v. First-Central Trust Co., 149 Ohio St., 415, 79 N. E. (2d), 119, 1 A. L. R. (N. S.), 1150; Kahn, Jr., v. Walton, 46 Ohio St., 195, 20 N. E., 203. One relates to the liability of a bank which honored a check after it had been notified not to pay it. Cincinnati, Hamilton & Dayton Rd. Co. v. Metropolitan National Bank, 54 Ohio St., 60, 42 N. E., 700, 56 Am. St. Rep., 700, 31 L. R. A., 653. No one of them is in derogation of the express terms of the sections of the Code which we have quoted.

There is no error in the judgment from which the appeal'is taken in this case, hence, it is affirmed.

Judgment affirmed.

Wiseman and Miller, JJ., concur.


text:
    The State, ex rel. Simons, Appellant, v. Kiser, Appellee.
    (No. 710
    Decided March 27, 1953.)

      Messrs. Spidel, Staley & Hole, for appellant.

      Mr. T. A. Billingsley, for appellee.
   Per Curiam.

This cause is submitted on the motion of appellee to dismiss the appeal.

The only error assigned by the appellant, Helen Simons, is that the trial court committed error in overruling her motion for judgment non obstante veredicto.

This is a bastardy case. The cause was first tried in 1950, a verdict in favor of complainant resulted, and a motion for new trial was sustained. From the order sustaining the motion for new trial an appeal was taken to this court. After the Supreme Court held, in Green v. Acacia Mutual Life Ins. Co., 156 Ohio St., 1, 100 N. E. (2d), 211, that an order sustaining a motion for new trial is not a final order, this court dismissed the appeal. Abuse of discretion was not involved.

The case was again tried in 1952, and a verdict for defendant resulted. The complainant filed a motion for judgment non obstante verdicto on the ground that it now appears there was no error in the first trial, and that judgment should now be rendered for her. From the order overruling the motion this appeal was taken.

No bill of exceptions has been filed. A motion for judgment non obstante veredicto at the end of the second trial is necessarily directed to the proceedings on the second trial. In ruling on such motion, the trial court cannot consider any favorable legal position accruing to complainant in the first hearing. The granting of a new trial eliminates from further consideration all such matters.

From the state of the record, the appeal should not be dismissed, but the proper order for this court to make is an affirmance of the judgment. It is so ordered.

Judgment accordingly.

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


author:
Matthews, P. J.
      Ross, J.,
      Per Curiam.
     Ross, J.,

text:
    Green et al., Appellants, v. Ryan, Jr., et al., Appellees. Green et al., Appellees, v. Ryan, Jr., et al., Appellees; Board of Directors of the University of Cincinnati, Appellant.
    (Nos. 7780 and 7782
    Decided November 2, 1953.)

      Mr. Robert Adair Black and Mr. Oliver M. Dock, for James Albert Green and others.

      Mr. G. Watson Hover, for the Board of Trustees of Public Library.

      Mr. Leo J. Brumleve, Jr., for Walter A. Ryan, Jr., and Roland P. Ryan, trustees.

      Messrs. Waite, Schindel & Bayless, for Ohio Mechanics Institute.

      Mr. Henry M. Bruestle, city solicitor, and Mr. Maurice M. Jacobs, for Board of Directors of the University of Cincinnati.
   Matthews, P. J.

The Court of Common Pleas sustained a demurrer to the petition and, the plaintiffs not desiring to plead further, the court entered judgment dismissing the “petition of the plaintiffs and amended prayer thereto” and ordering that “the defendants, Walter A. Ryan, Jr., recover from the plaintiffs their costs herein incurred. ’ ’ As will appear later, it seems that the name of Roland P. Ryan was omitted from this judgment for costs.

We do not find the demurrer among the papers, but are advised by counsel that the grounds of demurrer were that the court had no jurisdiction over the persons or subject matter and that no cause of action was alleged.

This appeal is from that judgment by the plaintiffs who constitute the Board of Trustees of the County Library District, Hamilton County, Ohio.

The petition to which the court sustained a demurrer discloses that Ploris Armstrong Sackett died in 1911, leaving a will by which she created many trusts. This will was duly probated by the Probate Court of Hamilton County, and Walter A. Ryan, Sr., and Arthur R. Morgan were appointed executors and trustees. They duly administered the estate and under the order of the court delivered to themselves as trustees the securities constituting the corpus of the various trusts. They, as cotrustees, continued to administer the various trusts until the death of Arthur R. Morgan, and, thereafter, Walter A. Ryan, Sr., as sole trustee continued the administration of the trust until his death in 1947. After his death, the Probate Court appointed Walter A. Ryan, Jr., and Roland P. Ryan, as his successors, and they have continued to act as trustees to this date under the orders of said court.

The petition recited extensive allegations of maladministration, that the purposes of the trusts had been accomplished, that the trustees had no duties to perform, and that the trust should be terminated and the funds delivered to the beneficiaries. A copy of the will was attached to the petition and made a part thereof.

Based on these allegations the plaintiff prayed that the trusts “be declared to be free of all claims or interest therein of said Walter A. Ryan, Jr., and Roland P. Ryan as trustees or otherwise ’ ’; that an accountant be appointed to examine the records to disclose excessive charges and deductions; that the trustees be required to account for all charges and deductions not authorized by the Probate Court; and that a temporary order be issued against the trustees restraining them from disbursing any funds belonging to the trusts, and for such other relief as may be proper.

It will be observed that there is no mention of a declaratory judgment in the prayer. The only mention of a declaratory judgment is found in the caption of the case, in which the petition is described as one ‘ ‘ for a declaratory judgment.” It is true that the prayer is that it be “declared” that Walter A. Ryan, Jr., and Roland P. Ryan have no interest in the trust funds, but that is no more than a prayer for a finding as a predicate for the present affirmative relief thereafter prayed for.

In its opinion on the demurrer to this petition, the Common Pleas Court pointed out that if Walter A. Ryan, Jr., and Roland P. Ryan had been improperly appointed, or had improvidently administered the trusts, the exclusive remedy was in the Probate Court to secure their removal and an accounting of their trusteeship and the appointment of another trustee, and that the Common Pleas Court had no original jurisdiction over such matters.

The Common Pleas Court in its opinion then concluded that it did have jurisdiction to determine whether the trusts had reached the status where they should be terminated, and then proceeded to analyze the facts as disclosed ,by the petition and apply the law to those facts. After doing so, the court reached the conclusion that the trusts were charitable in their nature, that they were active, that the purpose of the trustor had not been fulfilled, that the trustees had active duties to perform, and, finally, that no case was alleged for a decree terminating the trusts. The court, therefore, sustained the demurrer.

We agree with the Common Pleas Court that these trusts are active charitable trusts and that no cause of action to terminate them and deliver the trust funds to the beneficiaries is alleged. We also agree with the court’s conclusion that the Common Pleas Court would have jurisdiction to decree their termination had a cause of action therefor been alleged.

By Section 2107.46, Revised Code (Section 10504-66, General Code), the Probate Court and thé Common Pleas Court are given concurrent jurisdiction of actions for direction or judgment in any matter respecting a trust, estate, or property of a decedent. However, before anyone other than the fiduciary can maintain such an action, request in writing must be made upon him to institute the action and 30 days given for compliance. There is no allegation of demand having been made, but we assume that the failure to demur specifically on that ground constitutes a waiver.

We concur in the opinion of the trial court that the petition states no cause of action within the jurisdiction of the Common Pleas Court, unless the fact that the petition is described in the caption as one for a declaratory judgment requires a specific and detailed declaration of rights, even though no conceivable purpose now or at any time in the future would be sub-served thereby.

In the first place, we are of the opinion that the prayer shows this petition is not an action for a declaratory judgment. It is an action for relief upon an alleged existing cause of action. No inchoate right is asserted requiring a declaration now, so that the rights of the parties will be settled against that time when, if ever, the inchoate right matures. At most, it prays for the construction of a testamentary trust to determine whether at the present time it is a passive or active trust, and whether there has been maladministration by the trustees, whose present right to administer the trust is challenged. It is our judgment that it is an action seeking present relief based on -alleged matured existing rights. Had . the petition alleged a cause of action within the jurisdiction of the court, the only appropriate judgment would have been the granting of the present relief without anything other than a general finding for the plaintiff in the absence of a request for a separate finding of facts and conclusions of law.

But assuming that this is an action for a declaratory judgment, and that such an action imposes an inexorable duty to make a declaration, we are of the opinion that the judgment in this case satisfies the requirement. Indeed, it is our view a bare dismissal upon the sustaining of a demurrer to a petition when plaintiff disclaims any intention to amend is a sufficient declaration of the rights. This question has been before this court on several prior occasions. The latest case is that of Alf v. Hunsicker, Clerk, 82 Ohio App., 197, 80 N. E. (2d), 511, in which no specific declaration of rights was made. In the opinion in that case, at pages 202 and 203, appears the following quotation from our opinion in Samuels v. United States Holding Co., 76 Ohio App., 163, 63 N. E. (2d), 445:

“In 16 American Jurisprudence, 287, Section 14, it is stated:

“ ‘It is generally considered that the jurisdiction to render a declaratory judgment is discretionary in character. ’

“And at page 288:

“ ‘In general, the courts refuse to grant declaratory judgments unless it appears that such a judgment will fulfil the purpose of the declaratory judgments acts, by being of some practical help in ending the controversy or stabilizing disputed legal relations.’

“See, also, Schaefer v. First National Bank of Findlay, 134 Ohio St., 511, 18 N. E. (2d), 263.

“The dismissal upon the opening statement was a declaration that the plaintiff has no cause of action for relief upon any theory of law applied to the facts. And as to a finding or declaration on the subject of trust relationship, the petition does not allege such a relationship. As to the relation of shareholder and corporation, that status was never in dispute. Not only was it admitted, but it was also found by the court. Under such circumstances,- a declaratory judgment could be no more specific or efficacious than the Corporation Code itself. ’ ’

It is said further in the Alf case:

“It should be said in conclusion that as the pleadings allege no accrued or inchoate cause of action for other relief, no possible prejudice could result to the plaintiff from failure to make an express affirmative declaration of rights, duties, and status in relation to the situation portrayed in the pleadings. ’ ’

It has been suggested that there is a contradiction in law, where the court in terms “dismisses” the action and in the same order purports to declare rights.

The word, “dismiss,” is appropriate in a judgment upon the merits. In 14 Ohio Jurisprudence, 315, Section 2, it is said: ;

“The term ‘dismissal,’ ‘dismissed,’ is commonly used in the decree or order of the court in disposing of actions on demurrer and in sustaining defenses raised by way of plea or answer; and in equitable actions especially are these terms frequently used in the decree rendered.”

For these reasons, the judgment is affirmed.

Judgment affirmed.

Matthews, P. J., and Hildebrant, J., concur.

Ross, J.,

dissenting. An examination of the docket and journal entries shows that a petition was filed and a demurrer filed thereto by the appellees. Thereafter, an amended petition was filed and the transcript of the docket and journal entries shows no demurrer filed to such amended petition by appellees. No demurrer to such amended petition by appellees is found among the papers, nor is there any stipulation that the original demurrer shall apply to the amended petition. The opinion and judgment of the trial court indicate that such judgment is predicated upon a demurrer to the amended petition. It is, to say the least, doubtful if the validity presumed to attach to the judgment of a court may overcome this deficiency in the record. As far as the record before this court is concerned, it would seem, therefore, that the judgment is not appropriate to the pleadings.

The trial court in its opinion and judgment properly adjudged and declared the respective rights of the parties.

It had full jurisdiction as a Court of Chancery to do so under the Declaratory Judgment Act, Chapter 2721, Revised Code, and as an appropriate court collateral to the Probate Court. The fact that the trust was being administered in the Probate Court did not oust the Court of Common Pleas of jurisdiction to declare rights of parties interested in a will, no such proceeding having then been instituted in the Probate Court. Kane v. Kane, 146 Ohio St., 686, 67 N. E. (2d), 783, citing Radaszewski v. Keating, Exrx., 141 Ohio St., 489, 49 N. E. (2d), 167. In the opinion, in the Kane case, at page 691, it is stated:

“It is to be observed that in the case just cited, the ancillary proceeding was instituted in the Probate Court. But since, in the instant case, no proceeding had been instituted or was pending in the Probate Court for determination of heirship, the plaintiff, under the Uniform Declaratory Judgments Act, was within his legal rights to bring such a proceeding either in the Probate Court or in the Common Pleas Court as a court of general jurisdiction, both courts having concurrent jurisdiction in such matters. ” See, also, Section 2107.46, Revised Code.

It must be admitted that the prayer of the amended petition is inartistieally drawn in that instead of simply asking for a construction, it requests a specific instruction.

In many cases the plaintiff in such a proceeding has a definite position upon what construction should be given by the court. His request, nevertheless, should be for a construction, not Ms construction. The fact that he inappropriately prays, however, for a definite construction, in the absence of some appropriate motion, should not militate against his right to a construction of the trust provisions in a will. Undoubtedly, chancery would have entertained such a request. Such jurisdiction was entertained in equity long before the Declaratory Judgments Act was considered. The fact that the relief afforded in chancery is incorporated in legislative enactment does not oust chancery of its jurisdiction as, for example, actions to quiet title, partition, etc.

Section 2721.02, Revised Code, provides:

“Courts of record may declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding is open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect. Such declaration has the effect of a final judgment or decree. ’ ’

It will be noticed that, “No action or proceeding is open to objection on the ground that a declaratory judgment or decree is prayed for.” As a corollary it is apparent that no objection may be maintained to a proceeding for a declaratory judgment because other affirmative relief is prayed for.

It is a well-established rule that the prayer is no part of the cause of action, and that if the plaintiff is entitled to any relief in law or in equity, he shall be granted such relief if the facts stated show that he is entitled thereto.

Certainly, the facts stated show that plaintiff was entitled to a declaration of rights involved in the will containing the trust provisions alleged. It will be noticed also that, “the declaration may be either affirmative or negative.” Even though the court disagrees with the construction insisted upon by the plaintiff, he is entitled to such negative declaration. The court, in the instant case, could not have made a declaration of rights upon the demurrer of the appellees (even if one had been filed).

The questions presented to the trial court by the demurrer of appellees (if one was filed addressed to the amended petition) were: Did the facts alleged in the petition show that the plaintiffs were entitled either in chancery or under the Declaratory Judgments Act, to a declaration of their rights under the trust provisions of the will; and, did the court have jurisdiction of the subject matter of the action?

If a demurrer had been filed raising these questions, it should have been overruled. Even if there was in the amended petition a defective cause of action stated, the demurrer (if filed) could not operate upon another cause of action effectively stated, since such demurrer was addressed to the entire petition.

It is obvious that the court could not make either an affirmative or negative declaration of rights upon a demurrer (as it did in the judgment), since such demurrer would not raise the issues involved in disputed constructions of the will — but only the right of plaintiff to relief in chancery or under the Declaratory Judgments Act.

The same conclusions upon the general questions involved are discussed in the dissent in the case of Alf v. Hunsicker, Clerk, 82 Ohio App., 197, 203, 80 N. E. (2d), 511.

By virtue of Section 2107.46, Revised Code, a revised combination of Sections 10504-66 and 10504-67, General Code, a legatee may initiate an action to construe a will upon failure of a fiduciary to bring such action within 30 days after written request.

Such a cause of action may, therefore, be prosecuted by a legatee.

All that we know about the alleged demurrer to the amended petition is that a “demurrer” was filed. It is to be presumed, if filed at all, that such demurrer was a general demurrer.

Section 2309.09, Revised Code, provides:

“The demurrer shall specify the grounds of objection to the petition. Unless it does so, it shall be regarded as objecting only that the court has no jurisdiction of the subject of the action, or that the petition does not state facts which show a cause of action.”

The allegation that a request upon the fiduciary had been made and refused directly or by mere failure to act is not a part of the cause of action. Such allegation merely is concerned with the capacity of the legatee to sue. The legatee is given a right to file such action upon complying with a precedent condition.

Section 2107.46, Revised Code, a revised combination of Sections 10504-66 and 10504-67, General Code, provides:

“Any fiduciary may maintain an action in the Probate Court or the Court of Common Pleas against creditors, legatees, distributees or other parties and ask the direction or judgment of the court in any matter respecting the trust, estate, or property to be administered and the rights of the parties in interest.

“If any fiduciary fails for thirty days to bring such action after a written request from a party in interest, the party making such request may institute the suit. ’ ’

This section was amended by the 1953 Legislature, but such amendment does not change the applicability of the old General Code sections.

It is apparent that a legatee is given the right to institute such cause of action in the Court of Common Pleas, upon complying with the precedent conditions stipulated in the statute. His failure to allege compliance with such conditions does not constitute a defect in the cause of action, which, by virtue of the statute, he may include in a petition filed in the Court of Common Pleas. Such failure to allege compliance with the stipulated precedent conditions deals merely with his capacity to sue. Such a defect in the capacity of the plaintiff cannot be raised by a general demurrer. State, ex rel. Spiker, v. Industrial Commission, 141 Ohio St., 174, 47 N. E. (2d), 217.

All we know about the alleged demurrer to the amended petition is that in the judgment it is stated that a demurrer was filed. The presumption, if any is permitted, is that it was a general demurrer, and, therefore, ineffective to raise capacity to sue.

In Douglas, Admx., v. Daniels Bros. Coal Co., 135 Ohio St., 641, 22 N. E. (2d), 195, 123 A. L. R., 761, a widow instituted an action for wrongful death, without having been- appointed administratrix. Upon attack upon the petition, she was given leave to amend after her appointment. In the opinion, at page 647, the court said:

“In the instant case the cause of action set up in the petition is in no way affected by the corrections contained in the amendment. The amendment corrects the allegations of the petition with respect to plaintiff’s capacity to sue and relates to the right of action as contradistinguished from the cause of action. A right of action is remedial, while a cause of action is substantive, and an amendment of the former does not affect the substance of the latter. See 1 Bouvier’s Law Dictionary (Rawles Rev.), 295; Pomeroy’s Code Remedies (5 Ed.), 526 et seq., Section 346 et seq.; 1 Cyc., 642. An amendment which does not substantially change the cause of action may be made even after the statute of limitations has run.”

So in the instant case, had a special demurrer been addressed to the amended petition raising the right of the plaintiffs to sue, upon request, the plaintiffs would have been permitted to comply with the precedent conditions stipulated in the statute, amend their petition, and proceed with the case.

See, also, Canterbury v. Pennsylvania Rd. Co., 158 Ohio St, 68, 107 N. E. (2d), 115.

So, by virtue of Section 2107.46, Revised Code, the plaintiffs had a right to institute the action and their failure to comply with the precedent conditions merely abated the action pending compliance with the mandate of the section. Had the fiduciaries complied with their request, the action would have been changed to comply with the new plaintiffs. See Canterbury v. Pennsylvania Rd. Co., supra.

The amended petition also contained causes of action independent of that designed to obtain a construction of the will. The “demurrer” (if filed) was, as has been said, addressed to the entire amended petition. While the language of the statute is definite and specific, it would seem to be a most futile thing under the circumstances involved in the instant action to have made request upon the fiduciaries to bring this action. However, there is nothing in the record to show that the absence of proper allegations of compliance with the precedent conditions was ever properly raised by the defendants.

The judgment should be reversed and the cause remanded to the trial court, with instructions to overrule the demurrer.

(Decided November 16, 1953.)

On Application for rehearing.

Per Curiam.

The appellants have filed with the judges an application for a rehearing, which would have been appropriate before the rules of the Courts of Appeals were amended, effective January 1, 1949, whereby the provision for application for rehearing (Eule XI) was repealed. Since then, there has been no express provision for rehearing, although rehearings have been granted on it being made to appear that some vital fact or controlling principle of law may have been overlooked which resulted in an erroneous conclusion. We have examined this application to determine whether it presents any reason for a rehearing or a change in our conclusion.

In the application for a rehearing, counsel call our attention to the fact that the demurrer was to the petition, and not, in terms, to the amended petition. However, neither in the trial court, nor in the assignment of errors, nor in oral argument, nor in the briefs in this court was this fact mentioned or relied upon as an error. In fact, just the contrary is shown by the record. As a matter of fact, the “amended petition” was the same as the original petition, excepting that the prayer was elaborated to show clearly that in addition to the affirmative relief originally prayed for, they asked for a declaratory judgment. That the trial court as well as the parties treated the demurrer as directed against both pleadings of plaintiffs is shown by the express reference in the judgment to the “amended petition.” In this court, all the parties presented the cause as raising the one question of the sufficiency of the plaintiffs ’ pleading, challenged by the demurrer of Walter A. Ryan, Jr., and Roland P. Ryan. No one suggested any defect in the demurrer preventing it from raising this objection to the plaintiffs’ pleading.

Under such circumstances, the parties clearly waived whatever objection they might otherwise have raised on this ground. Their conduct would clearly be a basis for an estoppel. They invited the court to take the course, and can not complain after it has done so.

Furthermore, the appellants after having failed to assign this error, can not now present it for the first time and ask this court, as a matter of right, to consider it. The court did not mention the point in its opinion, because it had not been presented. We are not sure that we are asked to do so by the application for a rehearing. If we should do so we find in it no reason for changing the conclusion which we reached.

By Section 12223-21, General Code, it is provided that “Errors not argued by brief may be disregarded.”

For these reasons, the application for a rehearing is denied.

Application denied.

Matthews, P. J., and Hildebrant, J., concur.

Ross, J.,

concurring. The court, in the majority opinion and dissent, having fully covered the point raised by the request for reconsideration, I see no value in again presenting the case for argument. I, therefore, concur in denying the request for reargument, still retaining my position stated in the dissent.


author: Ross, J. Matthews, P. J.,

text:
    Overesch, Appellant, v. Campbell et al., Appellees.
    (No. 7800
    Decided October 19, 1953.)

      Mr. Sol Goodman, for appellant.

      Mr. G. Watson Hover and Mr. Wm. J. Schmid, for appellees.
   Ross, J.

Defendants filed a demurrer to the petition, which was sustained, and, plaintiff not desiring to plead further, judgment was entered accordingly, from which an appeal on questions of law and fact was taken. Only a question of law being involved in the appeal, it is reduced to an appeal on questions of law only and so considered. LeMaistre, Admr., v. Clark, 142 Ohio St., 1, 50 N. E. (2d), 331.

Briefly stated, the plaintiff alleged,in the petition that the county commissioners, in contravention of Section 2921, General Code, accepted a higher bid than that of plaintiff, although both bids were upon identical specifications, that such county commissioners are about to consummate this transaction, and that unless enjoined they will be guilty of misapplication of public funds.

The prayer is for an injunction.

Through some misunderstanding with the prosecuting attorney’s office, after judgment was rendered in the trial court and an agreement made by one of the assistants to withhold action, the accepted bid was followed by delivery and payment.

It is asserted by the defendants that regardless of possible error in the trial court, this court cannot do other than dismiss the appeal or affirm the judgment because the case has now become moot.

The appeal now here considered is upon questions of law and not upon questions of law and fact. It is not a de novo trial of the entire case. There can be no question that upon such latter appeal, where the basis for the relief sought by plaintiff, through change of circumstances, has ceased to exist, as where that which it is sought to enjoin has been accomplished, the reviewing court sitting as a court in chancery will follow the ancient maxim that ‘ ‘ equity will not require a vain thing. ’ ’

On the other hand, in an appeal on questions of law only, the reviewing court i's confronted with a judgment the effect of which is to establish an illegal precedent if such judgment is affirmed or the appeal therefrom dismissed.

Although the law of a case may be found in the syllabus or opinion of the court, it is the judgment that gives such statement the effect of a judicial precedent.

In reviewing such a judgment, the court of review does not do a vain thing when it sets aside and vacates that which would otherwise be a precedent for erroneous rules of law.

It is said in 2 Ohio Jurisprudence, 891, Appellate Review, Section 497:

“Under some circumstances, however, the reviewing courts will refuse to dismiss a review proceeding even though the questions involved have all become academic so far as they relate to the rights and liabilities of the parties to the action. It has been suggested as a ground for such refusal to dismiss that the judgment of the lower court, if erroneous, ought not to be left to stand as a precedent.”

In Randall v. State, ex rel. Hunter, 64 Ohio St., 57, 59 N. E., 742, a petition in mandamus was filed in the Circuit Court of Warren County on October 26, 1900, to compel the board of deputy supervisors to place a certain ticket on the ballot at the election of November 6, 1900. The defendant demurred to the petition. The case was decided in the Supreme Court on January 22, 1901. The judgment of the Circuit Court was reversed, the demurrer sustained, and the petition dismissed. The same rule was followed in Beachman v. State, ex rel. Deitz, 64 Ohio St., 577, 61 N. E., 1140. See, also, Board of Deputy State Supervisors of Election of Cuyahoga County v. State, ex rel. Green, 16 C. C. (N. S.), 244, 26 C. D., 521.

In 3 American Jurisprudence, 310, Appeal and Error, Section 733, it is stated:

“It is not every change in circumstances which might be said to render the case a moot one so as to require a dismissal of the appeal or error proceeding, however. Thus, there will be no dismissal where the question involved is a matter of public interest.”

Certainly a judgment, the effect of which is to sustain the principle that county commissioners may, without any justifiable excuse, purchase property from a high bidder when other lower bids are received upon the identical specifications should not be allowed to remain undisturbed. The public interest in preventing misapplication of public funds presents ample reason for vacating such a judgment.

Support for this conclusion is found in an annotation in 132 A. L. R., 1185, and the supporting authorities, where, on page 1186, it is stated:

“The proposition that an appellate court may retain an appeal for hearing and determination if it involves questions of public interest even though it has become moot so far as the parties or the particular action are concerned or though the parties desire that it be dismissed, is supported, either directly or by implication, by the great weight of authority.”

In 14 American Jurisprudence (Cumulative Supplement), 35, Courts, Section 49, it is stated:

“It has been held that questions of public interest originally encompassed in an action should be decided for future guidance although they have become abstract or moot in the immediate contest.”

It is asserted that the Court of Appeals lacks judicial power to reverse a decree based upon an erroneous conception of the law, if, by reason of changed conditions since the entering of the decree, the relief sought in the trial court could not be granted.

“The judicial power of the state is vested in a Supreme Court, Courts of Appeals, Courts of Common Pleas, Courts of Probate, and such other courts inferior to the Courts of Appeals as may from time to time be established by law.” Section 1, Article IY, Ohio Constitution.

The General Assembly having failed to take any action since November 7, 1944, affecting the jurisdiction of the Courts of Appeals, those courts, under the Constitution of 1912, still have jurisdiction to review, affirm, modify, or reverse the judgments of the Courts of Common Pleas, Superior Court and other courts of record.

Although reviewing courts especially have in the vast majority of cases applied the moot case principle and dismissed appeals, it appears from such authorities that such action is not based upon a finding of lack of judicial power to act, but rather upon the ground that action under such circumstances is not required, and would be a futile exercise of judicial power. The authorities hereinbefore noted indicate that courts have no doubt that they possess such judicial power, since it has been exercised in moot cases where the public interest is involved.

In Wick v. Youngstown Sheet & Tube Co., 46 Ohio App., 253, 188 N. E., 514, it is held, as stated in the first paragraph of the syllabus:

“When issues become moot, court does not refuse to hear them because it has lost jurisdiction, but because courts decide actual controversies by judgment which can be carried into effect.”

At page 257, ibid., it is stated:

“When the issues in an action become'moot, the court does not refuse to hear the issues in the case because it has lost its right or jurisdiction to do so, but because, as stated in Mills v. Green, 159 U. S., 651, 16 S. Ct., 132, 40 L. Ed., 293, which is cited in the opinion in Miner v. Witt, supra, courts ‘decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions.’ Further, in the opinion, just referred to, it is said:

“ ‘When * * * without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.’ ”

In the instant case, by virtue of the judgment against the plaintiff, he has been assessed with costs in the trial court, and, if his appeal here is dismissed or the judgment affirmed, will be required to pay the costs of his appeal.

The granting of a new trial would be a futile thing owing to the circumstances occurring since the entry of judgment, but this does not prevent the reversal of the judgment. 5 Corpus Juris Secundum, 1445, Appeal and Error, Section 1933, note 26, citing Hasselbach v. Kleissle, 224 S. W., 75. In the text at page 1445, it is stated:

“At any rate an appellate court, on reversal, will usually exercise its discretion by ordering a new trial or further proceedings whenever it appears that the ends of justice will best be served by such course, but will refuse to make such an order where it appears that it is unnecessary and would serve no useful purpose * *

Nothing stated in this opinion shall be construed as in any way limiting the discretion reposed in the county commissioners by the provisions of Section 5549.01, Revised Code (Section 7200, G-eneral Code), except only where it is made to appear that the county commissioners have accepted a higher bid upon an article identical in every detail and specification, and that there are no circumstances or conditions shown to exist indicating that the bid accepted is the best bid.

The judgment of the trial court is, therefore, reversed and the case is remanded to that court with instructions to render judgment against the defendants for all costs incurred incident to the appeal to this court, and for such costs in the trial court as were incurred subsequent to the filing of the petition and service of summons.

Judgment reversed.

Ross and Hildebrant, JJ., concur.

Matthews, P. J.,

concurring. I concur in the reversal of the judgment on the ground that the court erred in sustaining the demurrer to the petition, and in entering judgment thereon. I think this action, rather than the dismissal of the appeal is required, because the incidental right to costs including attorney’s fee remains to be determined, notwithstanding the inability of the court to grant the primary relief prayed for resulting from the action of the defendants during the pendency of this appeal.

By Section 2923, General Code, the court is required to award costs including attorney’s fees to a taxpayer in this sort of an action if it is found that he is entitled to the relief prayed for in his petition. As the case now stands, he is entitled to that relief. If it should later be determined that at the time he commenced the action, he was entitled, his right to his costs including attorney’s fee could not be defeated by defendants’ later action, making it impossible to grant the relief. Of course, if it should be determined that the plaintiff had no cause of action at the time the action was commenced, he not only could not recover his costs or attorney’s fee, but would be adjudged to pay all costs.

While under the rule of de minimis non curat lex, some courts have refused to entertain actions or appeals that involved trifling sums, this rule cannot be applied in the presence of a statute giving an absolute right to costs including attorney’s fee to a taxpayer in litigation commenced by him upon a worthy cause for the benefit of the public.

After stating the general rule that an appeal cannot be prosecuted from a decree for costs only because the allowance of costs is ordinarily discretionary, it is said in 2 American Jurisprudence, 906, Section 98, that:

“An exception to this rule is made in some cases where the right to costs is determinable as a matter of right. * * * And where the case involves the award of extraordinary costs, such as the costs of a receivership, or attorneys’ fees, it has been held that an appeal will lie. ’ ’

I assume that if an appeal could be instituted from such a decree, a pending appeal involving such issues should not be dismissed until they are disposed of.

Therefore, it seems to me that it was necessary for this court to determine whether the petition stated a cause of action, and finding that it did, to remand the case for further proceedings according to law and the mandate. The judgment should assess all costs incident to this appeal against the defendants and should leave the issue as to all other costs including attorney’s fee to depend on the determination of whether the plaintiff was entitled to the relief prayed for at the time of the commencement of this action.