author: Stevens, J.

text:
    The State, ex rel. Wunderly, v. Sine et al.
    (No. 3723
    Decided June 15, 1945.)

      Mr. Alexander S. Oreenbaum, for plaintiff.

      Mr. Roy E. Browne, director of law, and Mr. Nathan Koplin, for defendants.
   Stevens, J.

A petition in mandamus was filed originally in this court, seeking the issuance of a writ requiring defendants to pay to relator the payments alleged to be due him under the rules of the police pension fund of the city of Akron, Ohio, in effect at the time his pension was granted.

The petition sets out that defendants are the duly constituted board of trustees of the police relief and pension fund of said city of Akron, and that John D. Currie, as director of finance of said city, is the custodian of said fund.

That the rules of the fund in effect on September 1, 1940, provided that a lieutenant of police should receive, as pension, upon retirement, $110 a month.

That on September 1, 1940, relator was retired on pension, and the board of trustees of said police relief and pension fund ordered that relator be paid out of said fund the sum of $110 a month thereafter.

That on February 16, 1945, defendants notified relator that further pension payments would be withheld from him.

That the acts on the part of defendants are arbitrary, unjust, „and contrary to law.

For answer to plaintiff’s petition, defendants admit their respective official capacities, and that on September 1, 1940, relator was duly placed upon the pension rolls of the police relief and pension fund of thé city of Akron, Ohio, and was thereby eligible to receive thereafter $110 a month.

They further allege that relator, as the recipient of a pension from the city of Akron, is subject to such rules and regulations as are duly adopted by the board of trustees of the police relief and pension fund of said city.

That one of the rules and regulations duly adopted by the trustees of said police relief and pension fund on December 18, 1944, provided in part as follows:

“The board of trustees shall have the power to pay pensions, in whole or in part, to the families of those who are drawing pensions in case such pensioner neglects or refuses to properly provide and support his or her family. Retired members or dependents, if found guilty of committing a felony or of such a course of conduct which is inimical to the public interest, shall upon a majority vote of the board of trustees be deprived of their pensions and shall forfeit all further claims on the pension.or relief fund.”

That on February 15, 1945, the board of trustees voted to withhold from Oscar Wunderly further pension payments pending an investigation of a written charge made by Lora Wunderly, wife of said Oscar Wunderly, that he had failed to contribute to her support since he was placed on the pension rolls on September 1, 1940.

Plaintiff has demurred to the answer of defendants on the ground that the answer is insufficient in law, in that it does not state a defense to the-petition of plaintiff.

The chronology of this controversy is of importance.

On May 26, 1937, Section 4628-1, General Code, became effective. That section provides as follows:

“The granting of a pension to any person hereafter pursuant to the rules adopted by the trustees shall operate to vest a right in such person, so long as he shall remain the beneficiary of such pension fund, to receive such pension at the rate so fixed at the timé of granting such pension.”

In State, ex rel. Lemperle, v. McIntosh, 145 Ohio St., 107, at page 111, 60 N. E. (2d), 786, the Supreme Court stated:

“A pension, granted after the statute [Section 4628-1, General Code] took effect, is vested insofar as the power of the-trustees is concerned. The provision deprives the trustees of power to take away or impair the right to a subsequently granted pension * * *.”

On September 1, 1940, relator was placed upon the pension roll of the city of Akron, under the rules then in force.

On December 18, 1944, the rule hereinabove set out was promulgated by the board of trustees of said fund, and under that rule the relator’s pension has been withheld.

In our opinion, the withholding of said pension payments because of the later-enacted rule of said board, Is contrary to the interpretation placed upon Section 4628-1, General Code, by the Supreme Court of Ohio. Said rule, adopted after the accrual of relator’s pension, which accrual was subsequent to the enactment of Section 4628-1, General Code, has no application to relator’s right to receive his pension in accordance with the rules in effect at the time of its allowance.

' Said rule being the only alleged justification for a withholding of the pension payments due relator, and said rule constituting no defense to relator’s claim as stated in plaintiff’s petition, it follows that the demurrer to defendants’ answer must be sustained.

And defendants not desiring to plead further, it is ordered that a writ issue ordering defendants to pay to relator the payments due in accordance with his pension award.

Defendants to pay all costs herein.

Writ allowed.

Doyle, J., concurs.

Wasi-iburn, P. J., not participating.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

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

      (No. 111
    Decided May 24, 1945.)

      Mr. Donald M. Gibbs, for appellee.

      Mr. Lowell G. Bodey and Mr. Richard P-¿ Faulkner, for appellant.
   By the Court.

The defendant was .indicted and tried in the Common Pleas Court for embezzling public funds and altering public records. The entry of April 21, 1944, discloses that after trial, which lasted about fifteen days, the jury was unable to agree upon a verdict and the court discharged it. Thereupon, the plaintiff, the state of Ohio, moved the court to change the trial of the action from Champaign county, Ohio, to some other county in the state for the reason that a fair and impartial trial of this cause could not be had iii Champaign county.

The questions raised by the motion were elaborately argued by counsel for both the state and the defendant, and the court held that a fair and impartial trial of the case could not be had in Champaign county, sustained the motion and ordered and directed that the venue be changed to Clark county, an adjacent county.

Defendant moved the court to vacate the order granting a change of venue and to grant defendant a new trial. The court overruled defendant’s motion and ordered that the venue of further proceedings be changed to Clark county.

The defendant gave notice of appeal on questions of law to this court from the order rendered by the court of Champaign county on October 24, 1944, and also gave notice of appeal on questions of law from the overruling of his motion for a new trial.

The state filed a motion to dismiss the appeal because it was not taken from a final order.

We are of opinion that we may not properly consider this appeal for the reason that the order sought to be. reviewed is not a judgment or final order under the statute, Section 12223-2, General Code, and upon the authority of the fifth paragraph of the syllabus in Snell v. Cincinnati Street Ry. Co., 60 Ohio St., 256, 54 N. E., 270, which is as follows:

“An order overruling an application for a change of venue is not an order made in a special proceeding which may be made the foundation of aii independent proceeding in error, but is properly reviewable on error prosecuted to the final judgment in the action. # # # ? 5

The court in that case held that the order was but an interlocutory one in the progress of the case, which could not be made the foundation of an independent proceeding in error, but was properly reviewable on error prosecuted to the final judgment.

In the instant case, the order granting the state’s change of venue is not final under the following definition in Section 12223-2, General Code:

“An order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment, or an order affecting a substantial right made in a special proceeding, ’* * * is a final order *

The order does affect a substantial right in the action, but does not determine the action, does not prevent a judgment, and was not made in a special proceeding.

Inasmuch as we do. not have an appealable order, it is not necessary or proper to consider the errors assigned because no appeal is pending before us.

The appeal is dismissed.

Appeal dismissed.

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


author: Matthews, J.

text:
    Blaustein et al., Appellees, v. Blaustein et al., Appellees ; Bullock, Admr., Appellant.
    (No. 6607
    Decided January 14, 1946.)

      Messrs. Nichols, Wood, Marx é Ginter and Mr. Harry Kasfir, for appellees Anna Blaustein, Jean Blaustein Scherer and appellant.

      Mr. Joseph L. LacJtner and Mr. Sanford A. Headley, for appellee Madge Fisher Blaustein.
   Matthews, J.

This is an appeal from a judgment rendered by the Probate Court of Hamilton county in a proceeding to determine heirship as applied to the estate — consisting solely of personal property — of Aaron Blaustein, deceased.

There is no dispute that Anna Blaustein is his lawful widow and that Jean Blaustein Scherer is his daughter, the issue of that marriage.

While that marriage was in existence, Madge Fisher Blaustein went through the form of a ceremonial marriage with Aaron Blaustein, and thereafter they lived together as husband and wife to the time of his death.

Michael Blaustein is the son of Madge Fisher Blaustein, but is not the natural child of Aaron Blaustein. Michael Blaustein has died during the pendency of this action.

While Aaron Blaustein and Madge Fisher Blaustein were citizens of New York state, residing in the county of Bronx, they joined in a petition to the Surrogate Court of that county in 1939 for a judgment of adoption of Michael Blaustein, then known as Michael Fisher. Upon that petition, the court entered a judgment that Michael Fisher “shall henceforth be regarded and treated as the child of Aaron Blaustein and be known and called by the name of Michael Blaustein. ’ ’

Madge Fisher Blaustein knew that Aaron Blaustein had a wife and child. During his acquaintance with her and before the ceremonial marriage between them was performed he secured a decree of divorce from a Mexican court from Anna Blaustein. It is now conceded that that decree was void and had no effect on the marital status which it purported to dissolve.

At the time this proceeding was pending, there was also pending in the Probate Court, in the estate of Aaron Blaustein, deceased, a proof of claim by Madge Blaustein against his estate.

The Probate Court held on the subject of heirship •that Anna Blaustein was the widow of Aaron Blaustein and Jean Blaustein Scherer was his daughter and that as such they were entitled to inherit the net estate after costs, debts, and expenses of administration “including the award and judgment to Madge Fisher Blaustein on her claim against said estate filed with this court, and after deducting therefrom the sum of $2,600 for the first year’s support of the plaintiff widow, Anna Blaustein, and the sum of $2,500 exempted from administration under the provisions of Section 10509-54, General Code, to be distributed to said plaintiffs, Anna Blaustein and Jean Blaustein Scherer by the administrators of this estate in the proportion and in the manner provided by law for the distribution on intestate estates. ’ ’

Madge Fisher Blaustein excepted generally to this order and Anna Blaustein and Jean Blaustein Scherer and Joseph C. Bullock, one of the administrators of the estate of Aaron Blaustein, deceased, excepted severally to the. inclusion in the order of the following “including the award and judgment to Madge Fisher Blaustein on her claim against said estate filed with this court. ’ ’

We are of the opinion that the court was co.rrect in holding that the proceeding by which Aaron Blaustein attempted to adopt Michael Fisher was void under New York law. There is no provision in the law of that state authorizing a married man, acting alone or in conjunction with some one other than his wife, to institute adoption proceedings. The statutory authorization is found in Thompson’s Laws of New York of 1939 under the heading “Domestic Relations Law.” By Section 110 under that heading it is enacted that: “An adult unmarried person or an adult husband and his adult wife together may adopt another person. An adult husband or an adult wife may adopt the child of the other spouse, whether born in or out of wedlock.”

The right to adopt is dependent on statute. In the absence of a statute no right exists, and while the modern rule is one of liberal construction, there must be substantial compliance with the terms of the statute.

Reference to the statute shows that there is no authority conferred upon a married man acting alone to adopt a child. His wife must join in the petition. There are sound reasons for that requirement, because by virtue of the adoption, the adopted child becomes a member of the family with substantially all the rights of inheritance from the foster parents and foster brothers and sisters, as though there existed a blood relationship. And the foster parents assume the legal respon-sibility of natural parents toward the foster child.

Certainly, the wife should not be required to assume such responsibility and have her natural children required to assume a family relationship with a blood stranger with mutual rights of inheritance from their parents, and by and through one another, as though the relationship was one based on blood. And when applied to the circumstances in this case it would produce rather strange results under the provisions of Section 10503-4, General Code, providing the order of descent and distribution.

In 1 American Jurisprudence, 638, it is said r “Where joinder of the husband or wife is so specifically required by statute as to warrant the conclusion that the law does not recognize such a thing as an adoption by one spouse alone, failure so to join in the petition is a jurisdictional defect rendering the decree of adoption void. This is so although the reason for the failure so to do was that such spouse was insane, and although the adopting parent was the conservator of such insane person and this fact was recited in the petition for adoption.”

Our conclusion is that under the laws of New York a married man is not authorized to institute adoption proceedings alone; that the'proceedings must be the joint action of husband and wife; and that the joinder ■ of the wife is a jurisdictional fact, without which the court has no authority to proceed to a decree.

Now, Anna Blaustein, his legal wife, did not join in the - adoption proceedings. Madge Fisher Blaustein did join and it was recited that she was his wife and mother of the child which was the subject of the adoption proceedings. As the jurisdiction of the court to order an adoption was dependent upon the joinder of the 'wife, that brings us to the question of whether Madge Fisher Blaustein had the legal status of a wife for any purpose in the state of New York, and, if so, whether the state of Ohio would accord the same recognition or give effect to any governmental act by any department of the state of New York, based on its recognition of such a relationship.

We find nothing in the statutory or case law of New York which indicates that it gives any validity to a marriage ceremony under such circumstances. Many cases hold that, a foreign divorce granted by a court without jurisdiction is absolutely void. People v. Baker, 76 N. Y., 78, 32 Am. Rep., 274; Williams v. Williams, 130 N. Y., 193, 29 N. E., 98; and Hubbard v. Hubbard, 228 N. Y., 81, 126 N. E., 508. See, also, In re Holmes’ Estate, 291 N. Y., 261, 52 N. E. (2d), 424, 150 A. L. R., 447; In re Lindgren’s Estate, 293 N. Y., 18, 55 N. E. (2d), 849, 153 A. L. R., 936.

And the status resulting from the attempt to marry during existence of a prior marriage is fixed by Section 6 of Thompson’s Laws of New York, 1939 (Pt. 1), under the heading “Domestic Relations Law,” by which it is enacted that “A marriage is absolutely void if contracted by a person whose husband or wife by a former marriage is living,” with certain exceptions inapplicable here.

We find no necessity for recourse to any rule of comity in case of conflict of law in different jurisdictions, because the Ohio and New York laws are in harmony on the subject. 14 Ohio Jurisprudence, 536 el seq.; Van Fossen v. State, 37 Ohio St., 317, 41 Am. Rep., 507; mid Smith v. Smith, 72 Ohio App., 203, 50 N. E. (2d), 889.

The validity of any claim by Madge Fisher Blaustein as a creditor was not an issue in this case. The only issue was heirship — who occupied such a relation to the decedent as entitled them to take his estate under the statute of descent and distribution. It was error for the court to include in the judgment in this* case any reference to the claim against the estate presented by Madge Fisher Blaustein or the court’s conclusion as to its validity.

For these reasons, the judgment of the court is modified by deleting therefrom the following: “including (he award and judgment to Madge Fisher Blaustein on her claim against said estate filed with this court,” and, as modified, the 'judgment is affirmed.

Judgment modified and affirmed as modified.

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


text:
    In re Estate of Blaustein : Blaustein et al., Appellants, v. Blaustein, Appellee, et al., Appellant.

      (No. 6606
    Decided January 14, 1946.)

      Messrs. Nichols, Wood, Marx & Ginter and Mr. Harry K as fir, for Anna Blaustein, Jean Blaustein Scherer and Joseph C. Bullock, Admr.

      Mr. Joseph-L. Lachner and Mr. Sanford A. Headley, for appellee Madge Fisher Blaustein.
   Matthews, J.

This is an appeal from an order of the Probate Court of Hamilton county finding in favor of Madge Blaustein, a coadministrator of this estate, upon her affidavit and supplemental affidavit in proof of a personal claim against the estate.

There is pending in this court an appeal from an order of the Probate Court determining that Madge Blaustein is not the widow of the decedent, but we are not concerned with that issue on this appeal.

This appeal involves the sole question of whether Madge Blaustein has a provable claim against the estate.

The notice of appeal recites that the appeal was taken on questions of law and also on questions of law and fact. The appeal now comes before the court upon appellee’s motion to dismiss the appeal on questions of law and fact, on the ground that the claim does not present a chancery case, and, that therefore under the Constitution this court has no jurisdiction to hear the claim de novo.

There is no doubt that under the new Probate Code (Section 10501-53, General Code) the Probate Court has plenary power in equity as well as at law to fully dispose of any matter properly before it in the administration of an estate.

Section 6 of Article IV of the Constitution conferred appellate jurisdiction upon this court in chancery cases from courts of record, of which it could not be deprived by legislative enactment. Legislative enactment could properly recognize this constitutional jurisdiction as was done in Section 10501-56, General Code, as amended, effective August 22, 1941. In view of that section there can be no doubt of the present jurisdiction of this court to entertain appeals on questions of law and fact from the Probate Court in chancery cases, notwithstanding the amendment of Section 6 of Article IV of the Constitution in 1944, effective January 1, 1945.

The motion, therefore, presents the question of whether the claim asserted by Madge Blaustein ■ presented a case in chancery for decision by the Probate Court.

In her original affidavit in proof of claim she averred that, relying on the decedent’s representation that he had secured a divorce and was free to marry her, she had rendered certain services, expended certain sums, and surrendered certain rights for the benefit of the decedent in his lifetime for which she claimed to-be justly entitled to be reimbursed and compensated. She averred that the decedent was engaged in the plumbing business, but that at the time he was without money and in fact insolvent, that she paid the rent of $52 per month for the apartment in which they lived, that she loaned him $7,500, to enable him to perform a contract he had entered into with the Federal Housing Authority, and that he still owed $2,000 of this amount. She averred that he made a profit of $48,000 on that contract. She averred also that he entered into contracts with Federal Housing Authority to do work in Cincinnati and vicinity and it required that he reside in Cincinnati, and, to accompany him she was required to liquidate her beauty parlor business in New York city at a great loss. She averred also that decedent was sick much of the time and that she devoted a long period to nursing him. She then itemized her claim as consisting of $97,500, the value of her business which she had lost, $2,400 of money loaned which had not been repaid, $4,576 expended for rent and household expenses, and $25,000 for services rendered in caring for decedent and his home, making a total of $129,476.

In her supplemental affidavit she reiterated she had married decedent, relying upon his representation that he had been divorced. She averred that at the time the decedent was insolvent and the owner of very little property, that the property in the hands of the administrators was accumulated through the joint efforts of herself and decedent, and that the decedent was enabled to accumulate the property through financial and other assistance by her.

The Probate Court found in favor of the claimant and as to the amount adjudged as follows:

“The court coming to fix the amount thereof which the claimant is entitled to recover does order, adjudge and decree to the claimant a sum of money equal to one-half of the net estate of the deceased after the deduction of $5,100 this day adjudged to Anna Blaustein, the widow, as and for her first year’s allowance, and the sum to which she is entitled as assets not subject to administration under Section 10509-54, G-eneral Code. And the said administrators are hereby ordered to pay her said amount in full settlement and satisfaction of her said claim.”

Enough has been set forth to make it clear that the claimant, both in her original affidavit and in her supplemental affidavit, and the Probate Court in its judgment, treated the subject matter as a personal obligation to pay money and not as a claim of title, legal or equitable, to any assets in the hands of the administrator. No equitable relief of any sort was sought or granted.

As indicating the chancery character of the claim, appellants’ counsel refer to certain expressions in the brief of Madge Fisher Blaustein’s counsel,-filed in the Probate Court, and also to expressions in the opinion of that court to show that counsel and the court regarded the claim as based on equitable principles. The brief and opinion are no part of the record upon which the appeal must be decided. If they were it would not change the result. The equitable principles referred to have long since been recognized and appropriated by the law and an adequate legal remedy provided on the theory of an implied or gmsi-contractual obligation.

In Borton v. Earhart, 144 Ohio St., 34, 59 N. E. (2d), 37, the test of what is a chancery case is stated in the first paragraph of the syllabus :

“Where a money judgment is the main relief sought, the fact that plaintiff seeks incidental and ancillary equitable relief does not convert the action to one in chancery and such action is not appealable on questions of law and fact. ’ ’

If that is correct, certainly where a money judgment is sought and no equitable relief of any sort is asked, there is no basis for the claim that a chancery case is presented, appealable to this court on questions of law and fact. See, also, Nordin v. Coulton, 142 Ohio St., 277, 51 N. E. (2d), 717, and La Bounty v. Brumback, 126 Ohio St., 96, 184 N. E., 5.

For these reasons, the motion to dismiss the appeal on questions of law and fact is sustained, and the appeal is retained on questions of law only.

Motion sustained.

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


author: Hildebrant, P. J.

text:
    Laurens et al., Appellants, v. Jenney’s, Inc., Appellee.
    (No. 6585
    Decided November 13, 1945.)

      Messrs. Graydon, Head & Ritchey, for appellants.

      Messrs. Rendigs é Fry, for appellee.
   Hildebrant, P. J.

This is an action for damages for the value of a fur coat bailed to defendant by the plaintiff Laurens for summer, storage. The defendant offered no evidence and the court instructed the jury to return a verdict limiting liability to the valuation of $100, fixed by plaintiff Laurens in the storage receipt. Plaintiff (Laurens) claims to be entitled to recover the entire value and appeals on questions of law.

Plaintiff (Laurens) claims the action to be one for a conversion of the coat by defendant and that the-court erred in instructing a verdict for the limited liability — first, because under the facts such limitation was not provided for in the contract; and, second, that this is a case of conversion by the bailee, hence, the limitation as to value does not apply.

The parties are in substantial accord on the statement of the case in plaintiffs’ brief, which is as follows :

“On November 15, 1943, G-abriella Laurens owned a black persian lamb fur coat having a reasonable value of $900,- and was entitled to immediate possession thereof.

“On May 1, 1943, she had placed the coat in storage with Jenney’s, Inc., declaring a value of $100 for storage purposes.' The coat was accepted for storage by Jenney’s, Inc., subject to certain conditions and provisions set forth in the storage receipt. The agreement, among other things, provided that if the goods stored were to be delivered to any other person than the owner, it would only be upon the written and signed order of the owner accompanied by the receipt duly endorsed, and that the delivery of goods to the person named or the delivery of the goods to any address given by said owner, would be considered conclusively a delivery of the goods- shipped to the owner personally.

“The agreement further provided that in case the property stored was to be shipped, the responsibility of .Jenney’s, Inc., would cease upon delivery of the article to the express company'or other carrier, ,and Jenney’s, Inc., would declare to the express company or other carrier for insurance purposes while in transit, the value shown by the schedule unless otherwise instructed by the owner.

£ ‘ On November 15, 1913, contrary to the instructions of Oabriella Laurens, who had ordered the coat held for her call, Jenney’s, Inc., turned the coat over to United Parcel Service, Inc., for delivery to her, but the coat was never delivered, to her by United Parcel Service, Inc., nor was it delivered to her when she made demand for it at Jenney’s, Inc.”

In addition, the record shows that plaintiff (Lauren's) telephoned to defendant her intention to store the coat and delivered it to the United Parcel Service, Inc., acting for defendant, for storage and requested the minimum value of $100 for storage purposes be'placed thereon, for which the minimum charge of $3 was made; that she called personally at defendant’s store, instructing that the coat be taken out of storage and held for delivery to her on personal call. In disregard of that instruction, defendant attempted to deliver the coat to her by means of the United Parcel Service, Inc., and the same was lost. Plaintiff Laurens further testified she was satisfied to have the coat taken from defendant for delivery back by the United Parcel Service, Inc., at the same $100 valuation, and had she known of defendant entrusting it to United Parcel Service, Inc., for delivery she would have made no objection.

Pertinent provisions of the storage receipt agreement are:

“Jenney’s, Inc., 8 W. Fourth street, Cincinnati, for and in consideration of the storage and insurance charges herein accepts the above named article or articles for storage upon the terms and conditions stated herein, as follows: * * *

“V. In no event shall the liability of the company for any articles mentioned in the schedule above exceed the agreed valuation as stated therein. In case of partial loss, the liability shall be in proportion to said' agreed valuation. The agreed valuation appearing in said schedule above, as fixed by the owner of said articles, his agent or servant shall be binding and conclusive on the owner. * * #

“VIII. * * * Goods will be delivered to the owner named herein, or his or her authorized agent upon surrender of this receipt.

• “If the goods stored are to be delivered to any other person than the owner, it shall only be upon the written and signed order of the owner accompanied by this receipt duly endorsed, and the delivery of the goods to the person named, or the delivery of the goods at any address given by said owner shall be considered conclusively a delivery of the goods to said owner personally. In case the property stored is to be shipped, the responsibility of the company ceases upon delivery of the article or articles to the express company or other carrier and Jenney’s, Inc., will declare to the express company or other carrier for insurance purposes while in transit, the value shown by the schedule unless otherwise instructed by the owner.”

It seems to the court that plaintiffs’ conception of the use of the word “delivery” both in paragraph VIII of the storage receipt and in Sections 8465 and 8466, General Code, cited in argument, fails to be accurate. As used in the receipt and the Code, it contemplates a delivery terminating the bailment and concluding the responsibility of bailee, and under the receipt, it states that’ the responsibility ceases. However, defendant does not argue against responsibility for the declared value, but only against a greater liability. When the manager of the storage department took the coat from storage, had it then been passed to another employee for inspection and wrapping, that procedure too could be described as a delivery from one employee to another, but still among the employees and agents of defendant. When plaintiff Laurens turned the coat over to United Parcel Service, Inc., for storage with defendant, can there he any doubt that it was in possession of defendant through its employee or agent? Following the above conception, it is clear that the coat never left the possession of defendant through its employees or agents. Under such circumstances, it is obvious that the theory of conversion to own use, doing away with the limited liability, must fail. The violation of plaintiffs’ instructions to hold the coat until personally called for indicates a failure to communicate the same along the usual line of handling such transactions in defendant’s organization, hence, may be considered as negligence fixing liability according to contract. But handing to another employee or agent for local transportation to redeliver to plaintiff Laurens, certainly cannot be a conversion contemplated by the law, ignoring the limited liability in such cases.

The legality of the contract limiting the liability is established, so that no discussion on that point is deemed necessary.

The judgment is, therefore, affirmed.

Judgment affirmed.

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


text:
    The State, ex rel. Jenkins, Atty. Genl., v. Houchin et al.

      (No. 3885
    Decided January 26, 1946.)

      Mr. Hugh 8. Jenhins, attorney general, and Mr. Paul T. Key, for relator.

      Mr. Fórrest F. Smith, for respondents.
   By the Court.

This is an action in quo warranto in which a motion has been filed for temporary injunction. Actions in quo warranto fall within the exclusive jurisdiction of the Supreme Court and the Court of Appeals. Sections 2 and 6, Article IV, Ohio Constitution; Section 12311, General Code. We. recognize the principle of law that under certain circumstances the court may grant ancillary injunctive relief in an action of quo warranto pending disposition of a case on the merits. State, ex rel. Ellis, Atty. Genl., v. Bd. of Deputy State Supervisors, 70 Ohio St., 341, 71 N. E., 717.

Should the court grant a temporary injunction in the instant case? The motion is addressed to the sound discretion of the court. Because of the nature of the relief sought, the court should exercise its discretion sparingly and cautiously. The relief should be granted only when refusal would result in serious and irreparable injury. Ño facts are alleged in the petition or presented to this court, from which the court can reasonably conclude that irreparable injury would result by refusing to sustain the motion. In the petition the following allegation is made:

“Said defendants are threatening to and will, unless restrained, dissipate and waste the assets of said corporation. ” - "

This allegation in the petition is a conclusion of the petitioner and no facts are set forth in support thereof. Under circumstances such as are found in this case, it is apparent that the business of the corporation must be conducted by one particular group of officers. The business of the corporation should not be thrown into a state of confusion by two sets of officers attempting to conduct its affairs. Usually ancillary injunctive relief is granted to'preserve the status quo or to place one particular group in charge of the operation of the corporation until the principal issue is determined. This has been achieved by the Common Pleas Court of Franklin county in issuing a temporary restraining order in an action pending in that court. Under the protection of the Common Pleas Court order, the persons who have been conducting the business of the corporation oyer a period of many years have been placed in charge of its affairs. The control of the business has not been changed. If this court wore to sustain the motion, it would result in removing the officers who have been conducting the business of the corporation and placing in charge of its affairs another set of officers. To do so would not be in the exercise of sound discretion.

Furthermore, the provisions of Section 11877, Ueneral Code, do not permit the court to grant injunctive relief until there is first filed an affidavit showing that the plaintiff is entitled to such relief. True, Section 348, General Code, permits the Attorney General of the state to file his petition without being verified. However, this court is of the opinion that the Attorney General is amenable to the provisions of Section 11877, ’General Code, in the same manner as any other litigant, as there are. no exceptions, and if he seeks ancillary injunctive relief in this case, the requisite affidavit must be filed. However, this court rests its judgment on the discretionary power of the court to grant or not to grant ancillary injunctive relief in any given case.

Taking this view of the matter, we do not reach for determination the question of the alleged conflict of jurisdiction between this court and the Court of Common Pleas of Franklin county.

Accordingly, the motion for temporary injunction is overruled.

Motion overruled.

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


text:
    The State of Ohio, Appellee, v. Joiner, Appellant.
    (No. 6584
    Decided November 13, 1945.)

      Mr. John D. Ellis, city solicitor, Mr. Robert J. Paul and Mr. Ralph E. Gors, for appellee.

      Mr. Melvin Schaengolcl, for appellant.
   Matthews, J.

The appellant was convicted in the Municipal Court of Cincinnati of speeding, in violation of Section 74-57 of the Code of Ordinances, was fined $10 and his driving license was suspended for ten days. During the ten days he was arrested and charged in the same court with driving an automobile while his license was suspended, in violation of Section 6296-29, General Code. He was sentenced to the Cincinnati work house for 60 days, fined $100 and his driver’s license suspended for one year.

The appellant appealed from both convictions to the Common Pleas Court. In that court the two appeals were consolidated and upon hearing the court affirmed both convictions.

This appeal is from that judgment of affirmance.

It is contended that the state of Ohio has pre-empted the field as to granting and suspending drivers’ licenses and that, therefore, the municipal ordinance on that subject is void. In view of Section 6296-30, General Code, we are of the opinion that we are not confronted with the necessity of determining whether there is any conflict between the state law and the municipal ordinance. By that section, it is enacted in part that:

“(b) Whenever a person is found guilty under the laws of this state or any ordinance of any political subdivision thereof, of operating a motor vehicle, in violation of such laws or ordinances, relating to reckless operation, the trial court of any court of record may, in addition to or independent of,' all other penalties provided by law, suspend for any period of time or revoke tlie license to drive of any person so convicted or pleading guilty to such offenses for such period as it may determine, not exceeding tlie period of one year.”

That section expressly confers power upon all courts of record to suspend a driver’s license for not to exceed one year. The Municipal Court of Cincinnati is a court of record. And we think that an ordinance prohibiting speeding is an ordinance relating to reckless operation of an automobile within the meaning of the statute.

A somewhat more difficult problem is presented by the second conviction and suspension. It raises the question of whether this statute providing for punishment for driving while the license is suspended is a law “relating to reckless operation” of an automobile.

It should be observed that Section 6296-29, General Code, making it a misdemeanor to drive while the license is suspended, and Section 6296-30, General Code, empowering all courts of record to suspend drivers’ licenses, are sections of the “driver’s license law of Ohio,” which was enacted “To regulate the use of public highways.” Their juxtaposition would also seem to indicate that the General Assembly thought it was dealing with related matters.

Certainly, the power to suspend for speeding has relation to reckless driving and, if so, the power to enforce the 'suspension has equal relevancy.

For tlioso reasons, the judgment is affirmed.

Judgment affirmed.

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


author: Conn, J.

text:
    Hatsio, Appellant, v. Red Cab Co., Appellee.
    (No. 4089
    Decided April 9, 1945.)

      Mr. Marcus Friedman and Mr. John J. Barone, for appellant.

      Mr. Frank M. Blackett, for appellee.
   Conn, J.

This is an action against the defendant to recover damages for its alleged negligence. From the judgment therein on the verdict in defendant’s favor, plaintiff appealed on questions of law. The parties will be referred to as they appeared in the trial court.

At about 3:30 a. m. on the morning of December 1, 1943, plaintiff became a passenger in one of defendant’s cabs and, while he was being transported as such passenger, the cab in which he was riding was involved in a collision, at the intersection of Superior and Adams streets in the city of Toledo, with a motor vehicle operated by another and approaching from defendant’s left. As a result of this collision, plaintiff sustained certain personal injuries.

The petition of plaintiff contains six specifications of negligence on the part of the defendant as the proximate cause of plaintiff’s injuries. Defendant,, in its answer, denied negligence and that the collision occurred in the manner claimed by plaintiff, and averred that the sole cause of the collision was the negligence of the driver of the other motor vehicle. The answer contains a further defense that plaintiff failed to exercise ordinary care for his own safety.

Plaintiff assigns a number of errors which we shall consider .so far as may be necessary to briefly set forth the conclusions we have reached.

Immediately following the opening statements of counsel, plaintiff asked leave to amend his petition by pleading Section 64(a) of the Ordinances of the city of Toledo. That section contains provisions for traffic-control signals at street intersections. Defendant objected and its objection was sustained by the court.

The'provisions of the ordinance in question appear to be in conflict with the new traffic act of Ohio, effective September 6, 1941, and particularly in conflict with Section 6307-15, General Code, relative to flashing traffic signals. The act provides that it "shall be applicable and uniform throughout this state and in . all political subdivisions and municipalities therein. ’ ’ Section 6307-6,' General Code. It appears that the objection was properly sustained.

Counsel for defendant in his opening statement to the jury said, in substance, that his client did not have insurance and if a judgment were rendered the shareholders would have to pay such judgment. An objection was interposed. No court reporter was present when the opening statements were made, but, before the introduction of any evidence, the matter was brought to the attention of the court. In the discussion between counsel in open court, and in the' presence of the jury, it was tacitly conceded that the statement complained of was made and objected to at the time. However, the trial judge ruled' that this was a controversy between the lawyers and that the record could not now be encumbered. Exceptions ' were saved by plaintiff.

We call attention to the provisions of the General Code as to trial procedure, Section 11420-1, and particularly subdivisions 1 and 2 thereof, as follows :

‘ ‘ 1. The plaintiff concisely must state his claim, and briefly may state his evidence to sustain it;

lf2. The defendant must then briefly state his defense, and briefly may state his evidence in support of it * *

Those provisions of the code place a definite limit on the range or amplitude of opening statements. In the instant case, the statement complained of was foreign to the “defense.” of any issue raised in the pleadings, and likewise alien to any “evidence in support of it.”

Where a brief and concise summary of the issues and what the evidence to be offered will tend to establish is made, the jury, the trial judge and opposing counsel may readily apprehend the nature and character of the controversy. Furthermore, the members of the jury at this stage of the trial are peculiarly alert and impressionable,, and this lends emphasis to the propriety of observing the provisions of the General Code.

The purpose motivating the statement complained of as well as its impropriety'is apparent. It was calculated to influence the jury in its deliberations on a verdict to the prejudice of plaintiff. It does not appear that its manifest purpose was sterile. .

Plaintiff complains that the court erred in the admission of certain testimony offered by defendant. This testimony concerned the operation of the Buick automobile which collided with the cab in which plaintiff was a passenger, and was to the effect that on the night of the collision, and many times prior thereto, this motor vehicle was observed on the city streets, occupied by “kids,” ambling around town and passing through intersections at excessive rates of speed. Timely objections were made to this line of testimony and overruled.

The rule is well known that all evidence offered and received must be relevant to the issues. This rule excludes collateral matters. The reason for the rule is that evidence of collateral matters directs the minds of the jurors away from the issues, tends to mislead them and creates bias and prejudice. 17 Ohio Jurisprudence, 172, Section 133, and cases therein cited.

In this connection, we wish to make a further observation. The defendant in its answer, in addition to denying generally, averred “that the negligence of the driver of the car which collided with the cab was the sole cause of said collision.” That averment does not comply with the provisions of the General Code defining what the answer must contain. Section 11314, General Code.

That allegation does not constitute “a defense” to the petition and raises no issue in the case. Its presense in the answer confused the issues and might have been responsible for the admission of the incompetent evidence now under consideration. We consider file admission of this evidence erroneous and prejudicial. Leopold v. Williams, 54 Ohio App., 540, 8 N. E. (2d), 476.

In view of the foregoing and the conclusions we have reached, it becomes unnecessary to consider the remaining assignments of error.

The judgment of the trial court is reversed and the cause is remanded to that court, for further proceedings.

Judgment reversed and cause remanded.

Carpenter and Stuart, JJ., concur.


text:
    Waibel, Appellee, v. Schleppi et al.; Budd et al., Appellants.
    (No. 3717
    Decided January 11, 1945.)

      Mr. 11. P. Fagan and Mr. W. C. Egelhoff, for appellee.

      Mr. Roscoe R. Walcutt and Mr. Ralph 11. Kenney, for appellants.
   By the Court.

The appeal to this court is upon questions of law and fact. By stipulation of counsel the cause was submitted upon the pleadings, the transcript of the evidence taken in the lower court and briefs, oral argument having been waived. The relief sought is the quieting of title to a 15-foot strip of ground, to which the plaintiff has the legal title, and the enjoining of the use of this strip by any of the defendants.

Prior to 1903 the real estate in question in this action was a part of a 15-acre tract, rectangular in form, located on the west side of Lockbourne avenue, which avenue runs along the narrower side of this tract. The owner of the tract having died in 1903, her seven heirs-at-law divided, this tract into seven parcels, approximately equal in size and running from north to south, and executed deeds therefor. These seven parcels are numbered from 1 to 7, No. 1 being the easterly tract adjoining Lockbourne avenue.

In 1904, the owners of the several parcels caused a survey of them to be made, caused a plat thereof to be recorded in the county surveyor’s office and, as a part of such plat, indicated a 15-foot right of way along the whole north side of the 15-acre tract or seven parcels, extending to Lockbourne avenue. There was never any dedication of this right of way and there was never any written grant of any part of it to the owners of the different parcels.

In 1927, there was laid out and dedicated what is known as Markison avenue which runs westerly from Loekbourne avenue through approximately the center of this 15-acre tract, so that all the several parcels face directly upon it.

The plaintiff having obtained title to the north portion of lot No. 1, thereafter by subsequent deed obtained legal title to the 15 feet, a part of lot No. 1, previously used as a right of way. Later he brought this action in the Court of Common Pleas against all of the defendants and obtained a decree therein. The action was contested by defendants Budd only and they alone appealed.

It is contended by defendants Budd that they have a prescriptive right to the use of this 15-foot strip as an outlet from their lot, which is No. 3 of the original division, to Loekbourne avenue. They make this contention on three grounds, to wit, the original survey and plat, the prescriptive right obtained by user, and estoppel.

As hereinbefore observed there was never any grant or dedication of this right of way. There seems to have been simply a parol agreement. The mere fact of having a survey and of having a plat made and recorded certainly does not convey title or any prescriptive right.

' Originally, this right of way along the north of this tract may have been a right of way of necessity as an outlet to Loekbourne avenue. Since 1927 it has not been used at all by the owners of parcels 5, 6 and 7, and only to a small extent by the owners of lots 2, 3 and 4. The natural outlet to all these tracts is now through Markison avenue. It is significant that while one of defendants Budd was on the witness stand the second question asked him was, “where do you live, Mr. Budd,'” and the answer was, “1,200 Markison avenue.” Obviously, there is no longer a right of way to Lockbourne avenue solely on the ground of necessity and no prescriptive right can now be claimed therefor.

It is intimated, although not argued seriously, that the statute of limitations is applicable. This cannot be because, if title were claimed by adverse possession, this would begin to date, at the earliest, in 1927, the time of the laying out of Markison avenue. Prior thereto there is nothing in the record to indicate any adverse claims.

Nor can the claim of estoppel be substantiated. The plaintiff and his predecessors in title did nothing which ley their conduct misled the defendants or any of them, or caused them in any way to change their position. According to the record the defendants Budd did nothing with reference to their right of way but occasionally haul cinders, brickbats and other similar road material.

It follows that there may be a decree for the plaintiff as prayed for in his petition.

Motion for new trial, if filed, will be overruled.

Decree accordingly.

Hornrkck, P. J., Geiger and Montgomery, JJ., concur.

Montgomery, J., of the Fifth Appellate District, siting by designation in the Second Appellate District.


author: Wiseman, J.

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

      (No. 1861
    Decided November 27, 1945.)

      •Mr. Mathias H. Heck, prosecuting attorney, and Mr. Fred M. Kerr, for appellee.

      Mr. Charles W. Folkerth, for appellant.
   Wiseman, J.

The defendant, appellant herein, was charged with murder in the first degree and upon trial in the Common Pleas Court, was found guilty of murder in the first degree with recommendation of mercy. The defendant gave notice of appeal on questions of law and fact. An appeal on questions of law and fact cannot be maintained in a criminal action such as is under consideration by this court.

The court will retain the case as an appeal on questions of law. In order to keep the record straight, the court suggests that counsel for the state prepare a motion for dismissal on questions of law and fact. An entry may be drawn .sustaining the motion and retaining the case as an appeal on questions of law.

The defendant was charged with murder in the first degree under- Section 12400, General Code, which, so far as it is applicable to this case, reads as follows:

“Whoever, purposely, * * * in perpetrating or attempting to perpetrate # * * robbery * * * kills another is guilty of murder, in the first degree and shall be punished by death unless the jury trying the accused recommend mercy, in which case the punishment shall be imprisonment in the penitentiary during life.”

Under this section, the defendant was jointly indicted with two other persons for murder. The pertinent part of the indictment, omitting the names of the other two persons, is as follows:

“That Robert McKinney, on or about the fifth day of July in the year one thousand, nine hundred and forty-four, in the county of Montgomery aforesaid and state of Ohio, unlawfully, purposely, and while attempting to perpetrate a robbery, killed John E. Herby; contrary to the form of the statute in such cases made and provided and against the peace and dignity of the state of Ohio.”

To this indictment the defendant entered a plea of “not guilty.” The defendant also seasonably gave notice that he would impose a defense of alibi, which alleged that at the time the shooting took place he was in Cincinnati.. Upon trial, the defendant failed to take the stand in his own defense and there was no testimony whatever introduced in support of the alibi. - *

The defendant filed a motion for a new trial, which was overruled, after which the court sentenced the defendant to imprisonment in the Ohio State Penitentiary for the remainder of his natural life.

An assignment of errors has been filed as follows:

“First — The verdict and judgment thereon is contrary to law.

11 Second — The verdict is against the manifest weight of the evidence.

“Third — The court erred in admitting the testimony of Hugh Parks, an alleged co-conspirator according to his own testimony, when called by the state, as to the ownership of a blue sweater, when the evidence fell short of establishing a conspiracy.

“Fourth — The court erred in admitting testimony-pertaining to a trick photograph of the defendant used by the state in an attempted identification of the defendant, and prejudicial to the rights of the defendant, and later barred the photo from the jury as an exhibit.

“Fifth — The court erred in overruling the motion of the defendant, made at the close of the state’s case, to dismiss and discharge him, for failure of the state of Ohio to prove its case beyond a reasonable doubt:

“Sixth — The court erred in failing to charge the jury on the lesser degrees of crime under the indictment, and in not ordering his acquittal, when the evidence fell short of establishing a conspiracy, by failing to prove the connection of the defendant' with a plan or conspiracy to rob the Brown Derby, which plan or conspiracy, was the basis on which the state of Ohio framed the indictment-against the defendant and based its case against him- during this trial.

“Seventh — Because of misconduct of five women members of the jury in drinking and smoking cigarettes in the barroom of the Brown Derby, after being sworn as jurors in this case, and while viewing the premises of the alleged crime/ •

“Eighth — For all other errors and irregularities appearing on the face of the record. ’ ’

Counsel for defendant in his brief has grouped assignments of error numbered one, two, three, four and five and the court will also consider them as a' group.

The contention made by counsel for defendant is that the state entered upon the trial of the case on the theory of a conspiracy among several persons accused of the crime and that the state failed to prove a conspiracy. The contention is also made that since the state failed to prove a conspiracy, the defendant should have been acquitted, and the court erred in his charge to the jury on such'issue.

The indictment did not charge conspiracy; neither dicl counsel for the state contend that a conspiracy was expected to be proven. There was some evidence introduced on behalf of the state which tended to prove a conspiracy. One Hugh Parks testified that he, together with George Arnold, Willy Moon and the defendant Robert McKinney, met on the night of July 3, 1944, less than two days prior to the commission of the crime, at the corner of Western avenue and Gold street in the city of Dayton and that there a discussion took place between them relative to a plan to rob the Brown Derby. At one place in his testimony, he testified that they were all together at that time and that they were “all talking in general.” At another place in his testimony, he testified that he was not sure that the defendant participated in the discussion. However, there was sufficient evidence introduced to indicate that a robbery was prearranged and that in furtherance of the plan an attempted robbery took place in the early morning of July 5, 1944.

Under the provisions of Section 12400, General Code, under which the defendant was indicted for murder for killing John Her by while “attempting to perpetrate * f * robbery, ’ ’ it was not incumbent upon the state to allege or prove a conspiracy. Counsel for the defendant contends that inasmuch as the state has not shown which of the two robbers who entered the Brown Derby on the morning of July 5 in an attempt to perpetrate a robbery, fired the fatal shot which resulted in the death of John Herby, the defendant cannot be found guilty of murder unless a conspiracy be proven. With this contention the court cannot agree. Under the provisions of Section 12400, General Code, if two or more persons jointly participate in an attempted robbery and while attempting such robbery, one of the participants kills the victim, all persons who were jointly engaged and participated in the felonious act are equally guilty of murder. One of the leading cases in Ohio which upholds this proposition of law is Conrad v. State, 75 Ohio St., 52, 78 N. E., 957, 6 L. R. A. (N. S.), 1154. While it is true that in that case the principal question for the court to decide was whether at the time the shot was fired which killed a police officer while attempting to effect an arrest to prevent the escape of those participating in a burglary, the burglars were still in the act of participating in a burglary within the meaning of Section 6808, Revised Statutes (now Section 12400, General Code), nevertheless, the court did lay down the principle of law which this court regards as the law of this state. This principle of law is stated in the third paragraph of the syllabus as follows:

“When two, in furtherance of a common design, enter upon the perpetration of a burglary armed and prepared to kill if opposed, and while so engaged are discovered, and in the effort to escape one of the burglars kills one who is trying to arrest him, both burglars are equally guilty of the homicide, although one of them was not armed with a deadly weapon, and although such killing was not part of the prearranged plan. ’ ’

The above cited case is found reported in 6 L. R. A. (N. S.), 1154, under which there is a collection of opinions of courts of other states in accordance with the principle laid down in Conrad v. State, supra. An extensive note on this proposition of law follows the citation of this same case in 8 Ann. Cas., 966.

In the case at bar, the facts are stronger than in the case of Conrad v. State, supra, for the reason that the fatal shot was fired inside of the Brown Derby in the attempt to perpetrate a robbery. Both of the participants carried guns and both entered the room where the attempted robbery took place. The evidence in this case was that on the morning of July 5,1944, Martha McCoy, the head waitress and John Herby, the operator of the Brown Derby, were in the main dining room near the end of the bar, discussing the ques-, tion of employing additional help to operate the bar and restaurant. This conversation took place at about four o’clock a. m. John Herby stepped around the end of the bar and as he did so, noticed one of the robbers standing a few feet back of Martha McCoy. Upon seeing the robber, he exclaimed to Mrs. McCoy: “Look, Marty.” As she turned, she faced a robber and also noticed another robber near a staircase a few feet further distant from her. Mr. Herby asked the robbers what they wanted. One of the robbers spoke up and said: “We want your money.” He then motioned Mrs. McCoy over toward the safe and ordered both of them to put up their hands. While this was going on, the other robber came closer. Thereupon Mrs. McCoy was ordered to go to the basement. As she started to the basement, one of the robbers opened the door and gave her a shove, which caused her to strike her head against the slanting ceiling of the stairway. The impact of the shove caused her to go down several steps on the staircase. At about the time she was regaining her balance, she heard a shot fired and heard Herby say he was shot. At this instant she turned around and saw the two men who were standing within plain view close to John Herby. Herby’s hands were still up, but he was sinking to the floor and his hands were being lowered. She was unable to testify which one of the robbers fired the fatal shot. While she was on the stairs, she heard the robbers running across the room and a minute later heard the cry of John Herby for help. When she entered the restaurant, the robbers had fled. She described one of the robbers as being short and the other one tall. The one that was short, had on a suit coat, and the tall one had on a blue sweater. Bach had a handkerchief over his face, and each carried in his hand a revolver. Later she identified the man who wore the suit coat as Willy Moon, and the tall one wearing the blue sweater as Robert McKinney, the defendant.

Counsel for defendant complains of the introduction of testimony relative to the identification of defendant through the use of a photograph of himself, and also the sweater. Sometime after the crime had been committed, the witness was shown a number of photographs and from, among the number shown her, she identified the photograph of Robert McKinney as being the photograph of one of the robbers. She was also shown at least two sweaters, the first one not being identified and the second one being identified as the blue, sweater worn by one of the robbers whom she identified as being Robert McKinney.

One of the waitresses, Sereda Spangler, testified that Mrs. McCoy, as was her custom, about 2:30 o’clock . a. m. on- the morning John Herby was killed, took the other waitresses home in an automobile; that they left the restaurant through the rear door which leads to the alley; that to the rear of the restaurant and adjacent to the alley, there is a space for parking cars; and that in this parking space she, Miss Spangler, noticed a strange car. She testified that it was a car painted a light tan or brown, sloping at the back and with white tires. Sometime after the crime was committed, Miss Spangler went to the B & D Body Shop at 2900 Linden avenue, and there examined a number of cars and identified one of the cars in' the shop as being the same car which she saw at the rear of the Brown Derby on the morning of the murder. This car was identified as belonging to Robert McKinney by the testimony of Hugh J. Sacksteder, deputy county clerk, who testified from the records filed in the county clerk’s office. A month or so after the crime was committed, a blue sweater was taken by the police from Hugh Parks, who testified that the sweater belonged to Robert McKinney, and that a short time prior to the time it was taken by the police, Robert McKinney had loaned the sweater to him.

The court has reviewed this evidence at some length for the purpose of showing that Robert McKinney was one of the participants in the attempted robbery, and engaged with the other robber in the perpetration of an attempted robbery within the meaning of Section 12400, General Code.

The court has reviewed the evidence also because of the assignment of error number two tó the effect that the “verdict is against the manifest weight of the evidence. ’ ’

This court does not believe that the verdict was against the manifest weight of the evidence. Furthermore, we hold that Robert McKinney, as the evidence shows, was one of the participants who engaged in an attempt to rob John Herby, and that, as a matter of law, even though the evidence does not show he fired the fatal shot, being a participant in an attempted robbery, he is equally as guilty as the one who did fire the fatal shot, of murder in the first degree under the provisions of Section 12400, General Code.

We therefore hold that the verdict and judgment of the lower court are not contrary to law and that the court did not commit an error in admitting the testimony of Hugh Parks relative to the ownership of the sweater. Neither did the court commit an error in admitting the testimony of Martha McCoy relative to the identification of the defendant by means of a photograph and the sweater. Furthermore, the court holds that the trial court, did not commit an error in overruling the motion of the defendant made at the close of the state’s case to dismiss and discharge him for failure of the state to prove the defendant guilty beyond a reasonable doubt. We have disposed of assignments of error numbered one, two, three, four and five.

As to the sixth assignment of error that the court committed an error in failing to charge the jury on a lesser degree of crime under the indictment, the rule of law is that where murder in the first degree is charged and the evidence shows that murder in the first degree was committed, and there is no evidence to show that a lesser crime was committed, the court is not required to charge the jury on the lesser crime, and in fact it has been held that to do so is prejudicial error. One of the leading cases in Ohio upholding this principle of law is Malone v. State, 130 Ohio St., 443, 200 N. E.,,. 473. The principle of law is stated in the first paragraph of the syllabus as follows:

“Where one is indicted and tried for murder in the attempted perpetration of robbery under Section 12400, General Code, no instruction oh any lesser grade of homicide than murder in the first degree is requisite or proper when evidence to support the same is lacking. ’ ’

This principle of law is stated also in the third paragraph of the syllabus of the case of State v. Rogers, 64 Ohio App., 39, 27 N. E. (2d), 791, as follows:

“Where the evidence clearly shows that murder in the first degree has been committed and that is the only offense charged in the indictment, it is not error for the trial court to refuse to charge the jury that the defendant'might be found guilty of a lesser crime.”

See, also, 21 Ohio Jurisprudence, 51, Section 14.

Accordingly, this court finds that the trial court did not commit prejudicial error in failing to charge the jury on a lesser crime.

The seventh assignment of error is misconduct on the part of the five members of the jury in drinking and smoking in tlie barroom of the Brown Derby while viewing the premises. This alleged misconduct is one of the grounds on motion for a new trial and supported by the affidavit of Charles W. Folkerth, counsel for the defendant. A counter affidavit was filed by Floyd A. Kilmer, court bailiff, who had charge of the jury at the time it viewed the premises, and an affidavit by Fred M. Kerr, assistant prosecuting attorney. The trial court overruled the motion for a new trial without any further evidence being introduced. This court does not believe the jurors were guilty of misconduct which showed bias or prejudice on their part or that they were moved by passion or prejudice against defendant during the trial of the case, or in arriving at the verdict.

The eighth assignment of error is the usual blanket statement that “for all other errors and irregularities appearing on the face of the record.”

The court has read the entire record, has considered the arguments of counsel and examined the authorities cited in the briefs, and after due consideration of all of the evidence and the contentions made by opposing counsel in this case, this court does not find in the record where the trial court committed any error prejudicial to the defendant either in the conduct of the trial, the admission of testimony, or the charge to the jury. This court is of the opinion that the defendant had a fair trial and that the evidence is sufficient to justify a verdict of the jury in finding the defendant guilty of murder in the first degree as charged in the indictment.

The judgment of the trial court is affirmed.

Judgment affirmed.

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


text:
    Metz et al., Appellants, v. Betzner et al., Appellees.
    (No. 6489
    Decided February 4, 1946.)

      Mr. Bert 11. Long, Mr. Milton M. Bloom and Messrs. Ratterman, Gotoell é Fletcher, for appellants.

      Mr. Robert Adair Black, for appellee Clarence W.’ Betzner.

      Mr. Oliver G. Bailey and Mr. William M. Fridman, for appellees Daisy M. Betzner, Daisy Idella Betzner Sweeney and Clifford H. Sweeney.
   Hildebrant, P. J.

This cause is here for trial de novo, the prayer of the amended petition being for the specific performance of a contract entered into on April 1, 1943, for the sale of real estate by Daisy M. Betzner, vendor, to plaintiffs as vendees. Vendor’s title was derived from the will of her deceased husband, Walter T. Betzner, who died on February 3, 1942, and the deed of her daughter, defendant Daisy Idella Sweeney, and her husband. Item 5 of the will reads as follows:

‘ ‘Item 5.1 givé, bequeath and devise the rest, residue and remainder of my estate to my beloved wife Daisy M. Betzner and my beloved daughter Daisy Idella Betzner, all the rest, residue and remainder of my estate be the same, real, personal and mixed and wheresoever situated which I now have or may be hereafter entitled, the same to be in fee simple, save and except should my beloved wife, Daisy M. Betzner, again marry, then and in that event she should forfeit her interest in all the real estate then owned and the whole of said real estate to become the property of and vest in fee simple in my beloved daughter, Daisy Idella Betzner.”

Title to the real estate is at present in defendant Clarence W. Betzner, by virtue of a deed from vendor, through her daughter and husband, as the result of a settlement agreement between them and dismissal of a declaratory judgment suit pending in the Probate Court prior to the date of this contract, wherein defendant Clarence W. Betzner was plaintiff and Daisy M. Betzner and Daisy Idella Sweeney, individually and as executrices of the estate of Walter T. Betzner, deceased, were defendants. The gist of the action was that certain intangibles inventoried in the estate of Walter T. Betzner were acquired with the funds of plaintiff while Walter T. Betzner was acting as confidential business and financial agent of his brother, handling all of his funds in joint accounts at different banks and financial institutions and converted to his own use, with a subsequent failure to account therefor. In the body of the petition the following appears:

“Plaintiff visited his said brother at Deaconess ' Hospital, Cincinnati, Ohio, and in the presence of his wife, Daisy M. Betzner, one of the defendants herein, ■ acknowledged and admitted his failure to properly account for the funds and securities entrusted to his care and further, that the real estate, situate and located on Adams road, Hamilton county, Ohio, and listed and described in the inventory filed in the estate of the said Walter T. Betzner, deceased, in truth and in fact belonged to the plaintiff herein.”

The prayer of the petition is:

“Wherefore plaintiff prays for a declaratory judgment determining that said defendants, have no right, title and/or interest in the stocks and bonds herein-before fully described and set forth; that-the said stocks and bonds, listed, appearing and described in the inventory of the estate of Walter T. Betzner, deceased, is the property of the plaintiff herein, and for all such other and further relief to which plaintiff may be entitled to in the premises.”

Defendant, Daisy M. Betzner denies the above allegation with reference to the real estate, and further denies that a settlement between Clarence W. Betzner and Walter T. Betzner in 1939 was only partial, as claimed by Clarence W. Betzner.

In 1932, Walter T. Betzner, who in the handling of his brother’s finances for many years acted virtually as an alter ego, acquired two parcels of land on Adams road, Mt. Healthy, taking title to one in his own name and the other in the name of Clarence W. Betzner, and attended to constructing two dwellings and other buildings and appurtenances thereon, including a common driveway, entering over the land of Clarence W. Betzner, and curving over on the land of Walter T. Betzner and back to a point of separation toward the rear of the property of each.

On May 24, 1943, plaintiffs made proper tender and demand for deed on Daisy M. Betzner, who failed to comply therewith.

On June 25, 1943, the defendants having reached a settlement agreement, carried it into effect by the dismissal of the declaratory judgment suit and a partition suit directed at the so-called Vine street property and payment of $11,000 by Clarence W. Betzner to Daisy M. Betzner, who deeded the real estate here in question to Clarence W. Betzner through Daisy Idella Sweeney and husband, thence to Clarence W. Betzner.

The entry of dismissal of the declaratory judgment suit is as follows:

“All controversial matters herein having been amicably arranged, adjusted and fully settled between the parties hereto and especially but not exclusively the parties hereto having amicably partitioned among themselves the real estate (inventoried in the estate of Walter T. Betzner, deceased) consisting of 5.07 acres of land situate on Adams road, Mt. Healthy, Hamilton county, Ohio, and being known, described and numbered 2109 on said Adams road as disclosed by the records in'the recorder’s office of Hamilton county, Ohio.

“This action is dismissed at the costs of the defendants.

“Record waived.”

Clarence W. Betzner claims to have had senior and superior equities in the real estate, by virtue of the breaches of trust of Walter T. Betzner prior to the contract and contends that the doctrine of Us pendens applied in the declaratory judgment suit, which merged into the consent judgment of June 25, 1943, which amounted to an amicable partition of the real estate and became res ptdicata as to his equitable estate therein, and, further, that the contract sued upon is incapable of specific performance because Daisy M. Betzner took only a life estate in the undivided one-half interest under the will and her daughter was not a party to the contract.

The court has no difficulty in finding that Daisy M. Betzner took a fee simple title under the will of Walter T. Betzner to one-half the real estate, and on obtaining the deed of her daughter and husband for her one-half interest, held the full fee simple title on April 1, 1943, the date of the contract of sale.

The court further finds that the entry of dismissal involved no action of the court and left the parties standing as though no action had ever been commenced. State, ex rel. Cash, v. Rose, 136 Ohio St., 143, 24 N. E. (2d), 455; State, ex rel. Strong, v. Cook, 124 Ohio St., 478, 179 N. E., 352, 79 A. L. R., 684; Brown v. Brown, 70 Ohio App., 41, 44 N. E. (2d), 749; Siegfried v. N. Y., L. E. & W. Rd. Co., 50 Ohio St., 294, 34 N. E., 331; Welsh, Admr., v. Pennsylvania Co., 53 Ohio St., 670, 44 N. E., 1150; Goldstein v. Klivans, Inc., 10 Ohio Law Abs., 133. See, also, 14 Ohio Jurisprudence, 315, 327, Sections 2 and 12. The argument that an amicable partition is effected by the entry amounting to a judgment by the court must fail because the real estate here involved was not held by tenants in common, and the requirements of Section 12033, General Code, relating to amicable partition could not be met, hence, the term of amicable partition cannot be accurately applied to describe the agreement of settlement.

Discussion of lis pendens and doctrines of notice are unnecessary, since it appears that all parties became aware of the existence of - the conflicting claims of the others prior to the dismissal of the declaratory judgment 'suit, so that whatever was done took place with actual knowledge. It therefore appears that Clarence W. Betzner took title to the real estate with full knowledge of the existence of the contract of sale. In the settlement agreement, Clarence W. Betzner gave up his claim to some $6,000 of intangibles and paid $11,000 in money in return for real estate valued at approximately $19,250, which substantially negatives his equitable claims set forth in the declaratory judgment suit which was dismissed.

The contract of sale contained the following clause, to wit: “This transaction provides for a reciprocal ■easement to be furnished the buyer.”

It is contended that this clause renders the contract so indefinite as to preclude specific performance thereof. .

While the right of a vendee to specific performance, with abatement for partial disability to convey, is established — see 49 American Jurisprudence, 123, Section 105; Spengler v. Sonnenberg, 88 Ohio St., 192, at 205, 102 N. E., 737, 52 L. R. A. (N. S.), 510, Ann. Cas. 1914D, 1083; Steel v. Murphy, 10 Ohio App., 150 — the court finds it unnecessary to resort to that right in arriving at a decree, here.

Evidence in the record clearly identifies the reciprocal easement as relating to the driveway and its use. The following statement contained in 37 Ohio Jurisprudence, 33, Section 23, would appear to be pertinent on identification of the easement:

“The question of the degree of certainty of con- ’ tracts often arises in descriptions of land under contracts of conveyance. It is a well settled rule in Ohio that a memorandum in 'writing which identifies the property is sufficient upon which to base a suit for specific performance of a contract, and it is equally well settled that if the memorandum pointed to the identity of the land, oral evidence may be introduced to enlarge upon the description in order that it may be exact by metes and bounds or otherwise. No hard and fast rule requiring specific performance to be in the very letter of the contract prevails in this state, and the court in its decree may insert a pertinent description of the land which the contract clearly entitles the plaintiff to have.”

Acting not only with the acquiescence and consent of Clarence W. Betzner, but commissioned as bis confidential agent, Walter T. Betzner acquired adjoining parcels of real estate on Adams road, Mt. Healthy, and attended to the construction of the buildings, driveway, and all appurtenances thereon, providing entry to both parcels solely over the land of Clarence W. Betzner, curving solely onto and over the land of Walter T. Betzner, and proceeding partly on the land of both to a point of separation to the rear of each property. This construction was followed by a user from the date of acquisition and construction, dating back to 1932. Prom such a set of facts, a reciprocal easement arises. Shields v. Titus, 46 Ohio St., 528, 22 N. E., 717. The first and second paragraphs of the syllabus are:

“1. A way, laid out by an owner over his lands for the benefit of parcels thereof .into which he subdivided them for sale, the boundaries of which way, the purchasers of the several parcels definitely establish by mutual agreement, 'and thereafter improve and use it for the benefit of their lands, is an easement annexed to the lands, and passes by a grant of the land without being mentioned in the conveyance. The grantee takes the rights his grantor had with respect to it, and holds his land subject to the burden it imposed.

“2, Where proprietors of adjacent lands, by mutual agreement, definitely establish the boundaries of a private way previously laid out along their lines, and appropriate the strip of land embraced therein to be used as a perpetual easement for the benefit of the abutting lands of each, and the common benefit of all, and, in pursuance of the agreement, fence to the boundaries so agreed upon, and thereafter improve and use the way thus established, the agreement may be enforced in equity, at the suit of a purchaser from one of such proprietors, against a purchaser with notice from another. Injunction preventing the permanent obstruction of, or interference with such way, is a proper mode of enforcing the agreement.”

At page 539, the court states:

“There can be but little doubt that the way, as originally established by the owner of the entire tract for the benefit of the parcels conveyed by him to purchasers, became an easement appurtenant ■ to the lands granted, and not merely personal to the grantees. It .was established for the beneficial use and enjoyment of the premises conveyed, and, was a burden imposed upon each parcel for the more complete and convenient use of the others. Each parcel, for the purposes of the way over it, became servient to the others, and they, in turn, were subject to a like servitude for its benefit.

“The exact location and width of the way, so made appurtenant to their lands, were definitely settled by the mutual agreement of the owners, who placed their fences to the lines agreed upon, and thereafter improved and used it without objection. Such was the condition of the way when the plaintiff and defendant purchased their lands, and such, it continued to be, down to the time of its threatened interruption by the defendant. It was then, not simply a way of necessity, limited in duration by the necessity which originally gave rise to it, but became permanently appurtenant to. the principal estates; and, under-the well settled rule, each purchaser took his land with all the rights his grantor had with respect to it, and burdened with the servitudes he imposed upon it. As was said by Mr. Justice Story in Hazzard v. Robinson, 3 Mason, 279, ‘Whatever is actually enjoyed with the thing granted, as a beneficial privilege at the time of the grant, passes as parcel of it.’ A way is appendant or appurtenant to other lands, when it is granted for the convenience of their occupation without respect to the ownership or number of occupants. In such case, the right-of-way passes with the dominant estate as an incident thereto.”

And, at page 540, it is said:

“And it is the established rule in this state, that the appurtenances to property pass with it, upon its alienation, without the use of the term privilege or appurtenance in the conveyance. Morgan v. Mason, 20 Ohio St., 401. In the 'case cited above it was held that a right-of-way,' or other easement appurtenant to land, passed by a grant of the land, without any mention being made of the easement in the conveyance, and though neither the term appurtenance, or its equivalent be employed.”

Again, at page 541, affirming the theory of agreement as the basis for such an easement, it is stated:

“The definite establishment of the boundaries of the way, and the appropriation by each proprietor, of his lands embraced within them, for the mutual benefit of the lands of all, constituted a sufficient consideration to support the agreement. Bach owner, secured a right or interest in the nature of a servitude in the lands of the others included in the way, and the benefit accruing to his estate from the use of the same.”

In 15 Ohio Jurisprudence, 75, Section 51, it is stated:

“It has been said that an owner of land who, without objection, permits another to expend money in reliance upon a supposed easement, when in justice and equity the former ought to have disclosed his conflicting rights, is estopped to deny the easement.”

In note 5 thereunder, the following appears:

“Thus, oral permission to use an old roadway, partly upon the land of another, upon the faith of which permission a house is built upon an adjoining lot in such a manner as to render it accessible only by means of such roadway, has been held to operate as a grant of a private easement of way appurtenant to the adjoining lot. Kintz v. Zwisler, 7 N. P., 15, 9 0. D. (N. P.), 145.”

In 17 American Jurisprudence, 982, it is stated:

“An easement by estoppel has been held to exist in a passageway over a boundary strip as a result of the reciprocal use of the strip by the adjoining owners as a passageway for a long period of time.”

In 98 A. L. R., 1098, the annotation states:

“The cases coming directly within the scope of the annotation are those which. discuss the right arising from the reciprocal use by adjoining owners, pursuant to an oral or implied agreement therefor, of a strip along their boundary line and comprising land on both sides of such line, for the purpose of a passageway or some other purpose for the benefit of both lots.”

Pointing out that the facts here are stronger in support of the creation of a reciprocal easement than in any of the cases cited, we conclude that a reciprocal easement appurtenant to the real estate in question exists and. passes with any deed thereto, without the necessity of specific mention being made thereof. It is clear that the same is true of the adjoining parcel belonging to Clarence W. Betzner and as vital to the use and enjoyment of the driveway as means of ingress and egress to one adjoining parcel as the other.

Considering all the circumstances of the case and exercising its discretion under equitable rules and the power to completely dispose of all the issues of the case, this court finds that Clarence W. Betzner holds title to the real estate subject to the contract of sale between vendor and vendees, and it is ordered that Clarence W. Betzner execute and deliver a good and sufficient deed with the reciprocal driveway easement appurtenant thereto, on payment or deposit with the clerk of this court by the vendees of the full balance of the purchase price, and on failure so to do in lieu thereof, the decree herein to operate as the conveyance.

Decree accordingly.

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


text:
    Carter, Exrx., Appellee, v. Holmes et al., Appellants.
    (No. 907
    Decided December 13, 1945.)

      Mr. George 0. Cummins, for appellee.

      Messrs. Kaiits, Rolbroch & Bosch, for appellants.
   By the Court.

Plaintiff in her capacity as executrix recovered a judgment in foreclosure of a mortgage on real estate in which title was held by defendants as sole heirs at law of the deceased mortgagor.

The petition, in the first cause of action, set forth the note with certain credits thereon and, in the second cause of action, set forth the requisite allegations concerning the mortgage given to secure payment of the debt.- The prayer was solely for foreclosure and application of the proceeds of sale to the payments of the liens as marshaled and found due.

No prayer for personal judgment was contained in the petition. The answer was a general denial and a plea of payment.

Counsel for plaintiff included in Ms opening statement the following:

“■I say to the court that the plaintiff asks for judgment on foreclosure. We are not asking for a personal judgment on the note set forth in the petition, and we admit that we are not entitled to personal judgment against the defendants on the note.”

Defendants’ principal contentions are that they are entitled to judgment on the opening statement of counsel; that plaintiff is without capacity to sue, because she is not the real party in interest; and that judgment should not have beén rendered against them, because plaintiff failed to produce the note described in the petition and in the mortgage.

Reflecting on the capacity to sue, the General Code of Ohio provides:

Section 10509-68. “When a mortgagee of real estate, or an assignee of such mortgagee, dies without foreclosing the mortgage, the mortgaged premises, and the debts secured thereby, shall be considered as personal assets in the hands of his executor or administrator, and be administered and accounted for as such.”

Section 10509-71. “A mortgage belonging to the estate may be foreclosed by the executor or administrator.”

Section 11244. “An executor, administrator, or guardian, a trustee of an express trust, a person with whom, or in whose name, a contract is made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining with him the person for whose benefit it is prosecuted. Officers may sue and be sued in such name as is authorized bylaw.”

From the foregoing, the capacity to sue is evident.

It is argued that because in the opening statement plaintiff disclaimed a right to personal judgment on the note, no right of foreclosure exists. That argument overlooks the nature and extent of the remedies the mortgagee might have.

Section 11306, General Code, provides:

“The plaintiff may unite several causes of action in the same petition, whether they are legal or equitable, or both, when they are included in any of the following classes: * * *

“9. Claims to foreclose a mortgage given to secure the payment of money or to enforce a specific lien for money, and to recover a personal judgment for the debt secured by such mortgage or lien * *

Since Spence v. Union Central Life Ins. Co., 40 Ohio St., 517, it has been held that the section is permissive, and does not require that the two remedies be demanded in the same action. Here, they could not be. Defendants never contracted the debt or signed the note and, hence, could not be held personally liable, but they did succeed to the title to the premises subject to the mortgage which is, of course, subject to being foreclosed. See 27 Ohio Jurisprudence, 592, 644, 654, Sections 383 et seq., 458 and 472.

With reference to the failure to produce the note, an examination of the record and exhibits discloses substantial evidence — the listing of the mortgage debt in the estate of mortgagor, for example — to justify the finding of the trial court as to the existence and amount of the debt, and this court, therefore, will not disturb that finding. Although payment is pleaded, no substantial evidence was produced to discharge the burden of proof thereof resting on defendants.

The judgment is, therefore, affirmed.

Judgment affirmed.

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


author: Miller, J.

text:
    West et al., Appellees, v. Selvey et al., Appellants.
    (No. 3854
    Decided October 19, 1945.)

      Mr. W. B. McLeskey, for appellees.

      Messrs. Knepper, White S Dempsey, for appellants.
   Miller, J.

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

The record discloses that the defendants reside at 5273 North High street in Franklin county, between the municipalities of Columbus and Worthington. The territory in which defendants reside is predominantly residential. On or about October 26, 1944, the plaintiffs commenced an action to enjoin the defendants from maintaining a nuisance on the latter’s premises, the basis therefor being that the defendants operated a dog kennel where it was their practice to breed, raise, sell and board dogs, as a business. Some of the plaintiffs purchased their homes or moved into the community after the defendants had commenced the operation of the kennel, and others of the plaintiffs resided there before the kennel was established.

The cause came on for hearing, and on April 2,1945, the defendants were enjoined from maintaining such nuisance, the pertinent part of the finding of the court being as follows: “* * * that said kennel as so operated by said defendants and each of them constitutes a public nuisance and tbe same should accordingly be abated. ’ ’

In July 1945, the plaintiffs filed an application for an order requiring the defendants to appear and show cause why they should not be held in contempt of court for failing to abate the nuisance. Such order was issued and the contempt proceedings came on to be heard. Testimony was taken and the court found the defendants in contempt, and on July 17, 1945, issued the following order:

“It is, therefore, ordered, adjudged and decreed that a fine of $25 be and the same is hereby imposed upon each of said defendants and that each of said defendants be and they hereby are ordered and directed to cease the operation of a commercial dog kennel upon the premises in said petition described, and/or upon the premises owned and used by them contiguous thereto, on or before the 11th day of August, 1945. Provided, however, that if said defendants and each of them cease the operation of said commercial dog kennel on said premises on or before said date that said fines shall thereupon be suspended.”

It is from this order and judgment of the court that this appeal is taken.

The assignments of error are:

(1) The court erred in finding the defendants guilty of contempt of court. (2) The judgment of the court is not supported by sufficient evidence. (3) The judgment of the court is contrary to law.

To maintain the first assignment of error the defendants contend that the injunction ordered in the entry filed April 2, 1945, was never binding upon the defendants because no bond was given by the plaintiffs as required by statute. The statutes referred to are as follows:

Section 11882, General Code. “Unless otherwise provided by special statute, no injunction shall operate until the party obtaining it gives a bond * * * in an amount to be fixed by the court or judge allowing it, to secure to the party enjoined the damages he may sustain, if it be finally decided that the injunction ought not to have been granted.”

Section 11885, General Code. “An injunction shall bind a party from the time he has notice thereof, and the bond required by the applicant therefor is executed. ’ ’

We interpret those sections as requiring a bond before a temporary injunction becomes effective, but that they have no application to a permanent injunction. So far as we can find, no court has ever held that where the sole relief sought is. a permanent injunction, a bond must be given before' the judgment granting such relief becomes effective, unless the court order requires such a bond. It is true that Section 11882, General Code, uses the word “injunction” without indicating whether it refers to a temporary or a permanent one. However, upon consideration of the entire chapter on injunctions, it would seem to be clear that Section 11882 refers to temporary injunctions only. Furthermore, it seems from the context of Section 11882 that the word “injunction” as used therein refers to a temporary injunction only.-This is indicated by the phrase, “if it be finally decided that the injunction ought not to have been granted.” That language seems to indicate that 'the injunction referred to in that section is one granted in the course of the litigation, the ultimate disposition of which would be determined by the final judgment in the ease. The judgment of April 2, 1945, was a final order and not a temporary one, and no bond was ordered by the court.

Reference has been made by the defendants to 21 Ohio Jurisprudence, 1299, Section 221, which uses the phrase, “injunction or a restraining order,” thereby indicating that the word, “injunction,” and the phrase, “restraining order,” are used interchangeably and accordingly refer to the same thing. In legal parlance, a temporary injunction may be called such or it may be termed “a restraining order.”

The defendants have made reference to numerous Ohio cases where a bond was required before an injunction became effective, but an examination of those cases discloses • that only a temporary restraining order was involved.

As to the second assignment of error, that the judgment of the court is not supported by sufficient evidence, the defendants contend that a contempt proceeding is g^asi-criminal and accordingly such proceeding is required to conform with the procedure in criminal cases, and that the rule in criminal cases as to burden of proof must b.e applied. It is true that some courts have described such proceedings as guasicriminal. However, the better view is that such proceedings can be divided into two classes depending upon their source. If the proceedings arise out of criminal actions, then they are criminal in their nature. If, however, they arise out of civil actions, they are civil.

Paragraph two of the syllabus in Hayes v. Hayes, 11 Ohio App., 10, is as follows:

“Proceedings for contempt are of two classes. Those prosecuted to preserve the power and vindicate the authority of the court are criminal and punitive in their nature. Those instituted to preserve and enforce the rights of private persons are civil, remedial and coercive * * *.”

Where the proceeding has been regarded as quasi-criminal, we find the degree of proof required is that the evidence be clear and convincing. Loney v. Hall, 8 Ohio App., 154.

The trial court in arriving at its decision stated:

'‘The evidence before us is clear and convincing in establishing that the nuisance which we found to have existed at the time the order was made has not been abated. ’ ’

We have read the entire record in this case and are of the opinion that the trial court was correct in arriving at its conclusions. All the plaintiffs’ witnesses and practically all the defendants’ witnesses testified they heard the dogs barking and howling at various times of the day or night season. This noise would certainly constitute a nuisance and cause a disturbance to the residents throughout the community.

We find no merit in this assignment' of,error.

The last assignment of error is that the judgment of the court is contrary to law. The error in this assignment is that the court ordered and directed the defendants to cease operating a commercial dog kennel upon the premises owned by them or upon premises used by them contiguous thereto. The defendants contend that such order was grossly unfair to them and was beyond the power of the court under circumstances shown by the record, even if the injunction had gone into operation. It is our view that if the trial court had inherent power to adjudge the defendants guilty of contempt, then it had inherent power to impose a penalty reasonably commensurate with the gravity ,of the offense. This was so held in State, ex rel. Turner, Atty. Genl., v. Albin, 118 Ohio St., 527, 161 N. E., 792, -paragraphs one and two of the syllabus of which read as follows:

“1. A court created by the Constitution has inherent power to define and punish contempts, such power being necessary to the exercise of judicial functions. Hale v. State, 55 Ohio St., 210 '* * *' approved and followed.”

“2. Upon the punishment of persons adjudged guilty of contempt, the courts have inherent power to impose a penalty reasonably commensurate with the gravity of the offense.”

Since the trial court found, and we think properly so, that the defendants not only did not but could not conduct this kennel in compliance with the'original order, we feel that it was justified in ordering them to cease its operation altogether.

In Union Reduction Co. v. Story, 8 Ohio App., 381, the court said:

“If a person or corporation cannot carry on his or its business without making it so offensive and annoying to others who have property in the neighborhood as to deprive them of the enjoyment and healthful use of their own property, courts of equity should enjoin the continuance of the business entirely.”

The trial court has seemed fair and considerate in this matter. When the injunction was granted, the der fendants were not ordered'to cease operation of the kennel, the court said, because it wanted to give them an opportunity to comply by. abating the nuisance. It was only after the hearing in the contempt proceedings that the court reached the conclusion that the only means by which this nuisance could be abated was by ordering the defendants to cease operation altogether.

We find no error in the record and for the reasons stated the judgment is affirmed.

Judgment affirmed.

Hornbeck, P. J., and Montgomery, J., concur.-

Montgomery, J., of the Fifth Appellate District, sitting by designation in the Second Appellate District.,