author: Wiseman, P. J.

text:
    Platt, Appellee, v. Davies, Admr., Appellee; Platt, Appellant.

      (No. 4082
    Decided November 7, 1947.)

      Mr. W. B. Cockrell, for appellee Flora E. Platt.

      Mr. John L. Davies, for appellee John L. Davies, administrator.

      Mr. John J. Chester and Mr. Jack F. Young, for appellant.
   Wiseman, P. J.

This is an appeal from the Common Pleas Court of Franklin county upon a judgment rendered in favor of plaintiff. Notice of appeal was given on questions of “law and fact.” Counsel have proceeded to treat the case as an appeal on questions of law, and the court will so regard it.

This is an action for a declaratory judgment in which the plaintiff, Flora E. Platt, seeks an order declaring her claim for installments of alimony accruing after the death of Richard K. Platt, from whom she secured a divorce, to be a valid, subsisting claim against his estate.

Plaintiff secured a decree of divorce from Richard K. Platt in the Common Pleas Court, Division of Domestic Relations, Franklin county, on November 6, 1941: Subsequently, Richard K. Platt married Florence L. Platt, defendant, appellant herein. On September 21, 1943, Richard K. Platt died, and John L. Davies, defendant, appellee herein, was appointed administrator of his estate by the Probate Court of Franklin county.

The record shows that all installments of alimony were paid up until the date of death of Richard K. Platt. After the administrator was appointed, the plaintiff presented a claim for an indefinite sum which represented the unpaid installments of alimony which had accrued after the death of Richard K. Platt. The .administrator was requisitioned to reject the claim by Florence L. Platt under the provisions of Section 10509-135, General Code. Upon the rejection of the claim this action was instituted, praying for an order of court:

“To direct John L. Davies, administrator of the •estate of Richard Kenneth Platt, to abstain from paying out the assets of said estate until said claim set ■out by the plaintiff herein is paid or satisfied, and to direct said fiduciary to allow said claim and to pay the same out' of any assets of said estate as the claims •severally fall due, and to determine and decree and •declare the claim of the plaintiff herein to be a valid, subsisting and continuing claim against the assets of the estate of Richard Kenneth Platt, deceased, and for such other relief to which the plaintiff may be entitled.”

The Common Pleas Court granted the relief prayed "for and entered judgment for the plaintiff, from which judgment this appeal is taken. The defendant Florence L. Platt contends that the trial court erred in ■finding that the parties entered into an agreement with respect to a division of property and alimony, and that ■the judgment is contrary to law. More specifically, ■such defendant contends that the obligation resting on Richard K. Platt, to pay monthly installments of alimony under the decree was a charge on him personally, and terminated with his death.

The records show that on the day the divorce case ■was set for trial, the parties to the case and their counsel met in conference with Judge Rose, the trial .judge, at which time the matter of the division of the property and' an allowance for alimony and support was discussed. The plaintiff contends that the parties agreed with respect to the division of property and an allowance for alimony and support. The defends ant Platt, although admitting the matter was discussed, denies the parties arrived at an agreement. No written stipulation or agreement was signed by the-parties. After the close of the discussion the case was. called for a formal hearing, and the divorce case was heard. It is conceded that no evidence was presented at the formal hearing for divorce relative to any agreement between the parties with respect to a division of' property or an allowance for alimony and support.. At the end of the hearing a notation was made on the trial docket, dictated by Judge Rose, as follows:

“October 30, 1941, divorce granted plaintiff. Grounds gross neglect of duty. Custody of children to plaintiff. Property settlement approved.”

On November 6, 1941, a journal entry was filed decreeing a divorce to the plaintiff on the ground of gross neglect of duty of the husband; giving custody, care- and control of their three children to the plaintiff; and ordering the defendant to pay to the plaintiff:

“As and for alimony and support for herself and children the sum of $30 per week and to continue said payment as long as any one of the children' is being-supported by the plaintiff, provided that said weekly payments of $30 shall cease in any event when the-youngest child reaches 21 years of age, or at such time as all of the children become entirely self-supporting- or are not relying on the plaintiff for their support, or at such time as none of the children can legally demand support from either of the parties hereto.

“It is further ordered that at the time the defendant is released from the obligation to pay the plaintiff $30' per week as herein provided, then and at such time it is ordered that he pay to the plaintiff the sum of $15 per week during the period of her natural life as alimony, provided that the plaintiff has not remarried or further provided that if the plaintiff does remarry after the time that she is receiving the $15 per week payments, then and in that event said $15 payments shall immediately stop.”

It is conceded that the two younger children are dependent upon the plaintiff lor support; that all three children are under 21 years of age; and that the plaintiff has not remarried.

The entry provides further that the defendant forthwith convey to the plaintiff by warranty deed the real estate in the name of the defendant located in the village of Galena, Delaware county, Ohio, free and clear of all encumbrances, excepting a mortgage to the Home Savings Company of Westerville, Ohio, in the amount of $500. The decree provides further that the plaintiff be given all the personal property located on or about the real estate; the defendant to be divested of all of his right, title and interest in the real -estate and personal property.' The plaintiff was ordered to pay the mortgage obligation on the real estate and save the defendant harmless therefrom. The defendant was ordered to pay to the plaintiff, in addition to all other amounts mentioned, the sum of $500 as-follows: $250 forthwith, and $250 on or before three months from date. The entry was approved by counsel and, also, by the parties to the case.

The evidence clearly shows that the parties never ■entered into a separation agreement. If an agreement relative to alimony and support had been entered into, it is significant that there is no recital of such agreement in the decree. If the parties had arrived at a definite agreement respecting a division of property and an allowance for alimony and support we have a right to' assume it would have been referred to in the decree. It is contended by tbe plaintiff that an agreement must have been entered into, otherwise the court would not have been advised as to the terms of the decree. It is conceded the matter was discussed, and the discussion would have furnished the court sufficient information to enter the decree. Moreover, a careful consideration of the testimony, especially that of counsel for the parties, lends support to the contention that the parties arrived at an understanding as to the provisions and character of the decree which would be acceptable to them.

Such an understanding falls far short of a separate and distinct property settlement or agreement ■ between the parties which is afterwards incorporated in the decree. This case does not fall in that category. The fact that the parties signed the decree in the office of counsel several days after the hearing does not convert the decree into a contract. The decree is and still remains the judgment of the court. The evidence clearly shows that the parties were requested by their counsel to attach their signatures to the decree in order to forestall any objection to its terms in the future. The fact that counsel required their clients to sign the decree supports the conclusion that no agreement had been effected by the parties. Whatever the understanding was between the parties prior to the hearing, it did not rise to the sanctity of a definite agreement.

Furthermore, no contention is made here that the parties ever agreed, or even discussed the matter from the viewpoint of binding the estate of Richard K. Platt, after his death. The liability of the estate of the deceased husband must rest on the' legal effect of the decree itself. The language of the decree alone is to be interpreted. It was within the province of the court to make the order embodied in the decree and we may assume that the court had sufficient information before it to make the order. Since the court speaks •from its journal entry, we can give little consideration to the notation, made on the trial docket. Moreover, the notation on the docket refers to a “property settlement” which is not an issue herein; the notation on the docket fails to mention “alimony and support” which is the question involved.

The principal question for the court to determine is: What is the legal effect of the .decree as it relates to any liability resting on the estate of Richard K. Platt for the payment of installments of alimony and support for the period after the date of his death1?

In Lockwood v. Krum, Admr., 34 Ohio St., 1, where the court decreed alimony, without divorce, the court on page 7 held:

“The estate of the husband can not, properly, in a proceeding for alimony, .be charged or incumbered with the support of'the wife to continue after his decease. If this could be done, the settlement of estates would net only be indefinitely prolonged, but funds rightfully belonging to the assets to be administered, would be diverted and employed to make provision for ■such support. The legal obligation of the husband to •furnish support to the wife ceases upon the termination of the marriage relation.”

In Hassaurek v. Markbreit, Admr., 68 Ohio St., 554, 67 N, E., 1066, a divorce was granted to the husband on the ground of wilful absence of the wife for more than three years, and the parties agreed on a property settlement which was incorporated in the decree, in which the husband was ordered to pay $1,200 per annum in 12 equal monthly installments, and ‘ ‘ continuing •so long as the defendant shall live and shall remain ■unmarried, but said payments shall cease upon her death or remarriage.” The order in the decree was made under the provisions of Section 5700, Revised Statutes, now Section 11993, General Code, which at that time provided in part:

“ And the court may adjudge to her such share of the husband’s real or personal property, or both, as it deems just and reasonable.”

It will be observed that the term “alimony” was not used, and the court was careful to point out that a decree for alimony was not under consideration. The court considered the decree from the standpoint of an order relating to the division of property. Judge Shauck, writing the opinion for the court, - held that the decree imposed an obligation on the estate of the deceased husband. The court, on page 580, says:

“It must now be regarded as settled beyond controversy that when, in an action for divorce, the court is satisfied from the evidence that the marriage reía-, tions should be annulled the-parties are competent to contract with ■ respect to such changes in property rights as are to result from the severance of the former relation and their contract, if approved by the court, may' be carried into its decree, thus becoming a perpetual obligation.”

In Graff, Exrx., v. Graff, 99 Ohio St., 448, 125 N. E., 72, the court on authority of Lockwood v. Krum, Admr., supra, held that the estate of the deceased husband was not bound for the payment of monthly installments of alimony for the period after the date of death of the husband.

The case which appears to be decisive of the question presented is Snouffer v. Snouffer, 132 Ohio St., 617, 9 N. E. (2d), 621. The decree under consideration in that case bears a striking similarity to the one under consideration in the case at bar. In that case the wife was granted a divorce from the husband; she was awarded as alimony certain real and personal property belonging to the husband and in addition thereto she was awarded as further alimony the sum of $100 per month “so long as she shall remain unmarried.” In the case at bar, the award was in property belonging to the husband arid in addition thereto the plaintiff was awarded as alimony and support a certain amount each week “during the period of her natural life,” provided “the plaintiff has not remarried.” There is no essential difference between the provisions of the two decrees. The court in Snouffer v. Snouffer held that “Such decree with respect to the installment alimony payments will be held not to embrace periods beyond the death of the husband.”

The court in that case draws a distinction between the liability arising under a property- settlement or division of property incorporated in the decree and an alimony award payable in future installments. The court on page 620 says:

“The arguments of the courts below and of counsel for appellee apparently proceed on the assumption that the $100 monthly alimony award was the only allowance made to' the appellee and that it was made in consideration of her dower release. The decree discloses, however, that she received, absolutely and in fee simple, a portion of her husband’s farm property, unencumbered, and residence property wherein she made her home, encumbered by an $8,000 mortgage, which the husband was, by decree, ordered to pay off, and which he accordingly did pay off.

“The $100 monthly award was not, in our opinion, part of the property settlement and division in lieu of dower, but was a personal obligation imposed upon defendant and, unquestionably, intended as a charge against-his future earnings based upon his earning-capacity. There being no earning capacity upon decease, the obligation based thereon terminates upon his decease.”

In commenting on the rights of the wife under a property settlement, the court on page 621 says:

“Appellee was, by decree, here awarded and she accepted a portion of the real and personal estate of her divorced husband. Her interest in his estate was thereby exhausted.”

Again, on page 622 the court says:

‘ ‘ The decree in the instant case granted divorce, settled property rights and distributed the assets of the husband in proportion deemed just and equitable by'the court. This is binding upon the husband and upon his estate. The wife released her dower in the property retained by the husband. This is binding upon her and her estate. Further alimony was awarded for her support, payments to continue so long as she remained unmarried. This is binding upon the husband personally, and not upon his estate. Upon his death this obligation abates. It likewise abates upon her remarriage during his lifetime.” ■

The court recognized' an exception to the general rule of law therein announced. On page 622 the court stated the exception as follows:

“The duration of this decree does not extend beyond the joint lives of the parties unless expressly so provided by separate agreement which is approved by the court and incorporated into the decree (Hassaurek v. Markbreit, Admr., 68 Ohio St., 551, 67 N. E., 1066), or unless expressly so provided by statute (1 Ruling Case Law, 931 and 935). See, also, annotation in 18 A. L. R., 1015 et seq.”

The exception to. the general rule was recognized and applied in the case of Wright, Gdn., v. Fishbaugh, 13 Ohio Law Abs., 619 (Court of Appeals of the Third Appellate District). It has been held that the court cannot without the consent of the parties provide for continuance of alimony payments after death of either party. Parker v. Parker, 193 Cal., 478, 480, 225 P., 447; Roberts v. Higgins, 122 Cal. App., 170, 9 P. (2d), 517.

In applying the general rule that death terminates payment of alimony, it has been held that the husband’s obligation is not enlarged by a decree granting permanent alimony to continue during the natural life of the wife. North v. North, 339 Mo., 1226, 1233, 100 S. W. (2d), 582. The rule applies, even though the decree requires the husband to give security for the payment of the alimony. Wilson v. Hinman, 182 N. Y., 408, 413, 75 N. E., 236, 108 Am. St. Rep., 820, 2 L. R. A. (N. S.), 232.

In support of the general rule see 14 Ohio Jurisprudence, 529, 1 Ruling Case Law, 933, 934; 27 Corpus Juris Secundum, 999; 18 A. L. R., 1040; 101 A. L. R., 323.

We conclude that if the obligation to pay installments of alimony is to be extended beyond the life of either party it must be done by the agreement of the parties, which agreement is approved by the court and incorporated in- the decree, and not by court decree alone. In the case at bar the court by decree did not confirm an agreement of the parties. The decree -ordered a division of property, the provisions of which were binding on the husband and on his estate. Further allowance was awarded for alimony and support of the wife and children. This portion of the award was binding upon the husband personally and not upon his estate. As it relates to a liability resting upon the estate of the deceased .husband we recognize a distinction between a property settlement entered into between the parties and incorporated in the decree, and an allowance for alimony and support payable in future installments. The legal principle upon which this distinction is based is that in case of a property settlement the rights of the parties therein become vested; whereas, there is no vested right in' installments of alimony until the payments have become due. Snouffer v. Snouffer, supra; 27 Corpus Juris Secundum, 998 to 1000, Section. 240. If death ensues no liability is imposed for the payment of installments of alimony for the period after the date of death.

We are of the opinion that the judgment of the trial court was erroneous and prejudicial and should be and is hereby reversed.

Judgment reversed.

Miller and Hornbeck, JJ., concur.


source: Caselaw Access Project

author: Miller, J.

license: Public Domain

text:
    In re Adoption of Francis.
    (No. 4042
    Decided June 10, 1947.)

      Mr. James M. Hengst, for appellee.

      Mr. Paul H. Horst, for appellants.
   Miller, J.

This cause is submitted on motion by Albert G. Montie, appellee, for an order to dismiss the appeal of Arthur G. Francis and Bessie B. Francis for • the following reasons:

(1) The proceedings and judgment below are not appealable on questions of law and fact.

(2) No valid reason exists to hold this appeal as an appeal on questions of law.

This is an adoption proceeding which originated in the Probat.e Court of Franklin county. The question for our determination is whether this is a chancery case within the purview of Section 6, Article IV of the Constitution of Ohio.

Generally speaking, a chancery case may be said to be one in which, according to usage and practice in courts of chancery up to the time the Code of Civil Procedure was adopted, remedies were accorded' on the principles of equity and not in accord with the rules of law. Wagner v. Armstrong, 93 Ohio St., 443, 113 N. E., 397.

In 2 Corpus Juris Secundum, 368, it is said that adoption proceedings are wholly statutory and do not - depend on equitable principles. Where essential. statutory requirements have not been met, equity cannot decree an adoption on the ground that it h“as power to decree that that be done which in equity and good conscience ought to have been done.

The history of adoption shows that it is a practice of great antiquity, having been known to the Egyptians, Assyrians, Greeks and ancient Germans. ■ The civil law has recognized, such proceedings from its earliest days, even before the time of Justinian who reduced the system to a code which simplified the proceedings and from which modern legislation on the subject has derived many of its chief figures.

In England it is unknown to the common or statutory law. In the United States it exists only by* statute based to some extent on the civil law, which is also true in Ohio. It was, thereforé, at no time cognizable in courts of chancery.

In Sommers v. Doersam, 115 Ohio St., 139, 152 N. E., 387, the court said:

“These matters are, of course, statutory, as adoption was unknown to the common law of England; and! in states whose jurisprudence is based on that system,, the right exists by virtue of the statutes.”

Likewise, in the case of In re Privette, a Minor, 45 Ohio App., 51, 185 N. E., 435, this court said:

“The adoption of a child is purely a statutory creation; the provisions of the statute should, therefore, be strictly complied with.”

Counsel for the appellants cites the case of In re Guardianship of Jacobs, 73 Ohio App., 286, 43 N. E. (2d), 879, wherein it was held that an appeal on questions of law and fact may be taken to the Court of Common Pleas under authority of Section 10501-56,. General Code, from an order of the Probate Court appointing a guardian for a person who was adjudged incompetent.

An examination of the history of these two proceedings discloses that they are quite dissimilar. Guardianship was cognizable to- the common law which recognized four distinct forms, namely: (1) Guardianship in chivalry; (2) Guardianship in socage; (3) Guardianship by nature; and (4) Guardianship for nurture. See 39 Corpus Juris Secundum, 9.

It seems well settled now that courts of chancery have inherent original jurisdiction to appoint guardians. for infants within their territorial jurisdiction. See In re Hudson, 13 Wash. (2d), 673, 126 P. (2d), 765.

In Macpherson on Law Relating to Infants, at page 96 (41 L. L., 80), it is stated that there has been some dispute as to the origin of the jurisdiction of chancery over infants, but that jurisdiction is now nowhere questioned, and has been exercised by courts of chancery from a comparatively early period, and that chancery would appoint a guardian either on a suit pending or without suit on petition; in either case the rights and duties of the guardian with regard to the person and estate of the infant were the same as those,of other guardians and continued during minority.

In Board of Children’s Guardians of Marion County v. Shutter, 139 Ind., 268, 34 N. E., 665, 31 L. R. A., 740, it is said that statutes conferring power on courts of equity to appoint-guardians are merely declaratory of a power which such courts already possess.

Counsel for appellants also makes reference tó the case of Varsey v. Varsey, 25 C. C. (N. S.), 229, 26 C. D., 385, which is with reference to the custody of children and wherein the court held that the question of custody is inherently equitable in .its nature. We are in accord with this conclusion, but the matter before this court concerns itself with “adoption” and.not “custody.”

The question of the custody of' children is an ancient one and was cognizable in courts of chancery. See 9 Am. & Eng. Enc. of Law (2 Ed.), 866.

The motion to dismiss the appeal on questions of law and fact will be sustained, and the second branch will be overruled, in accordance with Section 12223-22, General Code. The appellants are gi’anted 30 days from the date of the journalizing of the entry for the filing of bill of exceptions, assignments of error and briefs.

Judgment accordingly.

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


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

text:
    Alf, Appellant, v. Hunsicker, Clerk of Courts, Appellee.
    (No. 6774
    Decided May 5, 1947.)

      Mr. Eli O. Frankenstein, for appellant.

      Mr. Carson Roy and Mr. G. Watson Rover, for appellee.
   Matthews, P. J.

The plaintiff was a deputy clerk in the office of the Clerk of Courts of Hamilton county under appointment by the defendant, acting under authority conferred upon him by Section 2871, General Code, by which it is provided that: “The clerk •may appoint one or more deputies to be approved by the Court of Common Pleas if in session.” His appointment was approved by the Court of Common Pleas.

The plaintiff alleged in his petition that the defendant discharged him for the ostensible reason that he, the plaintiff, had become dissatisfied with his position and his pay, had been hostile and non-co-operative and inattentive to duty, whereas the actual reason, in accordance with prior notice given to him by the defendant, was that he had become a member of a labor union; and, that in discharging him the defendant did not obtain or seek the approval of the Court of Common Pleas.

The plaintiff alleged that his discharge violated both Section 2871, General Code, in that it was without the approval of the Court of Common Pleas, and Section 6241-1, General Code, which renders void every undertaking or promise between any individual, firm, company, association, or corporation and any employee or prospective employee not to join or to withdraw from a labor organization.

The plaintiff prayed in his petition for a declaratory .judgment setting forth the rights, duties and obligations of the parties for a finding that he was entitled to a full hearing before impartial judges constituting a joint session of the Court of Common Pleas to determine whether his discharge was for good cause, for a declaration that membership in a labor union was not a valid basis for a discharge, and that the defendant was without power under Section 6241-1, General Code, to’discharge him for such reason, and ‘ ‘ Further plaintiff prays * * * for reinstatement to his former position'and for such other relief as the court may deem proper in the premises. Further that the court may make such further order either by injunction or otherwise as the court may deem necessary to make the declaration of this court effective. ’ ’

T-he defendant filed an answer alleging various defenses, to which the plaintiff replied.

The defendant then filed a motion for judgment on the pleadings. This motion was sustained. The court then coming to enter judgment “ordered, adjudged, and decreed that a judgment be entered in favor of the defendant, that the petition of the plaintiff be dismissed and that the costs of the within action be awarded against the plaintiff.”

This appeal is from that judgment.

The motion for judgment was considered by the trial court as raising the same issues as would a general demurrer. 31 Ohio Jurisprudence, 876 et seq. We so consider it. The legal effect of sustaining the motion was a finding that the petition failed to state a caus'e of action. And the judgment that followed “is a judgment on the merits, and, when sustained in favor of the one who makes the motion, results in a final judgment in his behalf.” Icl., at page 884.

By Section 9, General Code, it is enacted that “A deputy, when duly qualified, may perform all and singular the duties of his principal. A deputy or clerk, appointed in pursuance of law, shall hold the appointment only during the pleasure of the officer appointing. him. ”,

It is admitted that Section 9, General .Code, has never been expressly repealed. It is urged, however,' that Sections 2871 and 6241-1, General Code, are inconsistent with it, and operate to repeal it by implication. The members of this court are unanimous in the opinion that neither of these sections conflicts in any way with Section 9. Section 2871, General Code, relates to the manner of appointment of deputies, and has nothing to do with the manner of their discharge. Section 6241-1, General Code, relates to contracts of hiring or employment by “any individual, firm, company, association, or corporation.” It/has no relation to appointment or dischargé of deputies by .public officials.

There can be no question, therefore, that the defendant as clerk was given the power to end the plaintiff’s tenure as his deputy, without assigning any reason therefor. The fact that he assigned reasons does not qualify the act of terminating plaintiff’s tenure. We-are agreed upon that also.

But the plaintiff urges that his action is for a declaratory judgment, and that, therefore, he is entitled,, regardless of all other considerations, to a judgment in which is set forth expressly and in detail a finding by the court of the rights, duties and obligations of the parties. The majority of the court does not follow the plaintiff in this contention. We believe that position would be sound in a case in which no affirmative-relief is prayed for or could be granted, and the declaration is desired against the time when a cause-of action for affirmative relief would accrue, or in a. case where the only relief sought or which in any event at any time could be granted, is a judgment declaring rights, such as an action to remove a cloud from title;. but this is not such an action.

To whatever relief the plaintiff would ever be entitled, he was fully entitled at the. time this action was filed,, and he filed his action in a court having jurisdiction to grant him that ultimate relief, and he-prayed for it. The finding or declaration of his rights was of significance only as forming a predicate for the affirmative relief sought, that is, reinstatement as a deputy clerk. Now, instead of encumbering the record with a detailed finding as to each asserted right, the court made the general finding that he had none of the-rights asserted by him, and refused him the affirmative relief for which he had prayed. Having reached the-conclusion that he was not entitled to reinstatement as a deputy clerk, a detailed finding of asserted rights-would serve no purpose and would have been a declaration upon a moot issue, which was 'not intended by the-declaratory judgments act.

We have been required to construe and apply the-Uniform Declaratory Judgments Act (Section 12102-1 et seq., General Code) in several cases. We refer two—Bruckman v. Bruckman Co., 60 Ohio App., 361, 21 N. E. (2d), 481, and Samuels v. United States Holding Co., 76 Ohio App., 163, 63 N. E. (2d), 445. In the former, we reversed a judgment for defendant entered on sustaining a demurrer to the amended petition, and in the latter we' affirmed a judgment for defendant •entered upon a motion for judgment at the'close of plaintiff’s opening statement. The only finding in both judgments was a general one on the issues in favor of the party for whom judgment was rendered. The reason for the difference in the result is found in the issues raised in the cases. The Bruckman case was by a dissenting stockholder and raised the question of rhis rights upon an amendment of the articles of incorporation under Section 8623-72, General Code.' If the •corporation had complied with all the provisions relating to amendments of the articles of incorporation, it was entitled to proceed. If the amendment was such •as to give the plaintiff as a stockholder the option to insist on their fair cash value, then to avail himself of that option, it was necessary for him to comply with all the conditions imposed by law. The statute provided a special procedure for fixing the value of the stock in the event of disagreement. Furthermore, the corporation could withdraw from the program and thus terminate the right of the dissenting stockholder to have the fair cash value of his stock. It can be seen from this that the facts in that case called for a declaration of rights, because the rights of the parties had not become definitely fixed at the time.

A different situation existed in Samuels v. United States Holding Co., supra. In that case the plaintiff stockholder sought to require a liquidation of a corporation’s affairs contrary to the desires of its board ■of directors'. There was no conceivable future purpose to be served by entering a judgment, detailing-the rights and duties growing out of the relation existing between a stockholder and a corporation and its directors. Accordingly, we held that a general finding was sufficient. What we said there, we think pertinent here, and, therefore, quote it:

“But it is said that this is an action for a declaratory judgment, and that no matter what view the court might take on the merits of the plaintiff’s contention,, he is entitled to a declaration of rights.

“This is an action for a declaratory judgment only in the sense that every action seeking immediate relief involves a finding of law as well as of fact. What the plaintiff seeks is a distribution of assets at once— not a declaration of rights to control future action. Under such circumstances it would seem that a dismissal of - the action upon the opening statement would’ be a sufficient declaration that on the merits he has shown no cause of action.

“Assuming, however, that the case can be classified as one for a declaratory judgment in the strict sense,. the court is not bound under all circumstances to make-a declaration. In Walker v. Walker, 132 Ohio St., 137, 5 N. E. (2d), 405, the court, at page 139 said:

“ ‘The declaratory judgment act is a salutary, remedial measure and should be liberally construed' and applied/but, as in the instant case it does not require a court to render a futile judgment that ‘would’ not terminate’ any ‘uncertainty or controversy’ whatsoever. . Under the circumstances here present it was-proper for the trial court to dismiss the plaintiff’s-petition. ’

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

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

“And at page 288:

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

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

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

It should be said in conclusion that as the pleadings allege no accrued or inchoate cause of action for other relief, no possible prejudice could result to the plaintiff from failure to make an express affirmative declaration of rights, duties, and status in relation to the situation portrayed in the pleadings. This court is justified only in reversing a judgment for prejudicial error.

For the foregoing reasons, the judgment is,affirmed.

Judgment affirmed.

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

Ross, J., dissents in a separate memorandum, but concurs in the first and fourth paragraphs of the syllabus.

Ross, J.,

The plaintiff knows no more as to his rights and 'status after such dismissal than he did before filing. his petition. It does not appear that the court was exercising the discretion permitted by the act. On the-contrary, judging from the opinion, it appears that the court in dismissing the petition was laboring under the impression that the judgment was entered in compliance with the provisions of the act. My opinion is-that it did. not so comply.

The Common Pleas Court entered_the following final judgment:

“This cause came on to be heard upon the petition and reply of the plaintiff, the answer(of the defendant and the motion of the defendant for a judgment on the-pleadings and was thereupon briefed and argued by counsel and submitted to the court.

“Upon consideration of the same the court finds said motion to be well taken and orders that the same-be and it hereby is sustained.

“Coming now to enter judgment upon said motion, it. is hereby ordered, adjudged and decreed that a judgment be entered in favor of the defendant, that the petition of the plaintiff be dismissed and that the-costs of within action be awarded against the plaintiff.”

The court made uo other finding. • It filed a written opinion which appears among the original papers transmitted to this court, but such opinion was not filed with the clerk for journalization.

In such opinion the court considered fully the respective claims of the parties set up in the petition, answer, and reply.

Upon the defendant’s motion for judgment on the pleadings — (1) the facts properly pleaded in the petition are to be taken as true, (2) facts in the answer favorable to plaintiff and not denied are to be taken as true, and (3) facts properly alleged in the reply are to be taken as true (Williams v. Village of Deer Park, 78 Ohio App., 231, 69 N. E. [2d], 536) — the plaintiff is entitled to all reasonable inferences to be drawn from such facts. Guardian Life Ins. Co. v. Veser, 128 Ohio. St., 200, 190 N. E., 405; Parletto v. Industrial Commission, 140 Ohio St., 12, 42 N. E. (2d), 153.

And the plaintiff under such pleading of facts is entitled to any relief to which such facts show bim entitled. Triff, Admx., v. National Bronze & Aluminum Foundry Co., 135 Ohio St., 191, 20 N. E. (2d), 232, 121 A. L. R., 1131; State, ex rel. Masters, v. Beamer, 109 Ohio St., 133, 150, 141 N. E., 851; Schaefer v. First National Bank, 134 Ohio St., 511, 520, 18 N. E. (2d), 263.

The effect of the judgment quoted is to deny that the plaintiff is entitled to any relief of any kind upon the properly pleaded facts. His petition was dismissed.

The trial court in its opinion stated:

“It should be noted at this point, of course, that plaintiff’s repeated allegation of the existence of a controversy for various named. reasons is necessary to entitle him to the declaratory judgment prayed for. However, it is also necessary in order to support a declaratory judgment that a justiciable issue exists. The absence of such an issue will be shown below.”

From the relevant and properly pleaded facts which the defendant must admit by his motion, it appears that the plaintiff was appointed a deputy clerk by the •defendant, that such appointment was approved by ■the Court of Common Pleas of Hamilton county, that for some time plaintiff held such position, that he wa^ discharged by the defendant, and that such action was not approved by the Court of Common Pleas of Hamilton county.

There are many other allegations which are either ■irrelevant and immaterial or are mere allegations ■of law or conclusions of law, among which is an attempt to state alleged factual reason for the discharge of plaintiff.

The controversy developing upon the argument of the motion centers around the applicability of Sections 9 and 2871, General Code, and possibly the application of Section 6241-1, General Code.

Essentially, the question presented by the facts properly pleaded to the trial court was whether the defendant had a right to discharge the plaintiff at his pleasure, or was required to have certain reasons therefor, or seek the approval of the Court of Common Pleas, or give the plaintiff, the benefit of a trial, and if .so required, did he comply with the law?

Certainly, the facts do present a situation in which the plaintiff may justly claim that there exists an element of uncertainty involving the lawfulness of his discharge as a deputy clerk. Even if such discharge may seem clearly lawful or unlawful, still the plaintiff was entitled to a declaration of his status and rights. In its opinion the trial court definitely stated such ■status. Whether it was correct or incorrect is not before this court, because instead of carrying its finding and declaration into the final judgment entry, it dismissed the plaintiff’s petition and rendered judgment for the defendant without in -any way giving plaintiff any information as to its conclusion upon the problem properly presented.

The simple question presented to this court is whether such judgment complies with the rights accorded plaintiff under the provisions of Section 12102-1 et seq., General Code.

This court cannot now be concerned with the conclusions of the trial court expressed in its opinion. The court speaks only through its journal (Squire, Supt. of Banks, v. Guardian Trust Co., 144 Ohio St., 266, 58 N. E. [2d], 651) and there is no declaration of the status and rights of the plaintiff upon the journal of the Court of Common Pleas. Reference to the opinion has only been made to show what was in the mind of the court in rendering its judgment.

Paragraph two of the syllabus in Coshocton Real Estate Co. v. Smith, 147 Ohio St., 45, 67 N. E.(2d), 904, is:

“Under the provisions of Section 12102-1, General Code, courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations irrespective of whether further relief is or could be claimed.”

And, at page 48 of the opinion, it is stated: “In the first section jurisdiction is conferred Go declare rights, status, and other legal relations.’ This is precisely the relief asked by the plaintiff.”

In the Smith case “rights and status” under a lease were sought to he determined. In the instant case the “rights and status” of the plaintiff under the sections of the Code mentioned herein are sought to be determined. This right is given plaintiff by Section 12102-2,. General Code.

The trial court refused to declare the status of plaintiff under the statutes involved, and in doing so denied the plaintiff relief to which he was entitled under the Uniform Declaratory Judgments Act; and committed error prejudicial to plaintiff.

The defendant seeks to sustain the action of the trial court in dismissing the petition of plaintiff upon the ground that it had no jurisdiction over the subject matter of the action; the defendant’s theory being that because Section 9, General Code, gives the clerk of courts power to discharge a deputy at his pleasure, the Court of Common Pleas has no jurisdiction to declare plaintiff’s rights in the matter. This-is just what the plaintiff had a right to.have declared, if it properly defines his status. Certainly, the Court of Common Pleas being a court of general jurisdiction has jurisdiction of the subject matter of a declaratory judgment and of the status of the plaintiff as a deputy clerk, which is the subject of this action. Baltimore & Ohio Rd. Co. v. Hollenberger, 76 Ohio St., 177, 81 N. E., 184. It may have no right under the law to interfere with the discharge of the deputy by the clerk, but, certainly, it has jurisdiction, and under the provisions of Section 12102-1 et seq., General Code, may be required to say whether such discharge is lawful or unlawful.

Certainly, it cannot be successfully urged that a declaration by the trial court in the instant matter that the clerk, at his pleasure, had or had not the right to discharge the plaintiff deputy, would be an exercise of jurisdiction it did not possess.


author: Guernsey, J.

text:
    State, ex rel. Rogers, v. Bushong, Supt.
    (No. 949
    Decided October 27, 1947.)

      Mr. Francis W. Durbin, for petitioner.

      Mr. Hugh 8. Jenkins, attorney general, Mr. Boland Lee and Mr. M. E. Frase, for respondent.
   Guernsey, J.

This is an action in habeas corpus.

In his petition filed in this court Truman Rogers avers that he is sane and is being unlawfully restrained of his liberty by the respondent, R. E. Bushong, superintendent of Lima State Hospital.

Omitting caption and signature, the return of the respondent to the writ of habeas corpus issued upon the petition herein, is in the words and figures following, to wit:

“R. E. Bushong, as superintendent of Lima State Hospital, hereby makes return of the writ of habeas corpus in this cause, and respectfully represents to the court that he has had Truman Rogers, petitioner herein, in his custody since January 24, 1947, by virtue of a commitment of the Common Pleas Court of Mahoning county, to the Lima State Hospital, true copy of which' is hereto attached and made a part hereof and marked Exhibit A.

“This return made this 23rd day of September, 1947.”

The order of commitment referred to in the return and made a part thereof and marked Exhibit A, omitting the certificate of the Clerk of the Court of Common Pleas of Mahoning county, authenticating the order of commitment, is as follows:

‘ ‘ This day comes the prosecuting attorney on behalf of the state of Ohio, the defendant comes into court in custody 'of the sheriff, his counsel also coming, and trial to the court is resumed and the court having heard the remainder of the evidence and arguments of counsel this cause is submitted; upon consideration thereof the court find the defendant not guilty by reason of insanity and acquits defendant on that sole ground.

“It is therefore considered ordered and decreed by the court that the said defendant Truman Rogers be taken hence by the sheriff to the jail of Mahoning county and from there to the State Hospital for Criminal Insane at Lima, Ohio, there to be confined under G. C. 13441-3 and that he pay the costs of prosecution.”

A certified copy of the docket and journal entries in criminal case No. 16807 in the Count of Common Pleas of Mahoning county, Ohio, shows that the petitioner, Truman Rogers, was, at the January term of that court in 1946, indicted by the grand jury of that county, and that in the indictment it is charged that Truman Rogers late of that county, on the 5th day of April, 1946, at that county did unlawfully and fraudulently, and without any lawful warrant or authority whatever, seize, take, steal, and kidnap, and him, Truman Rogers, then and there unlawfully, forcibly, fraudulently and against her will, and without her consent, carry off Patricia Smith in his automobile at the point of a gun for the purpose of shielding and protecting himself and of preventing his apprehension while in the perpetration of committing a felony.

The certified copy further shows that Truman Rogers upon being arraigned on the indictment pleaded not guilty but subsequently, by leave of court, filed a plea of not guilty on the ground of insanity, and thereafter made written waiver of trial by jury and elected to be tried to the court; and that on trial to the court the court found [Truman Rogers not guilty by reason of insanity and acquitted him on that sole ground. Truman Rogers was then committed to the State Hospital for the Criminal Insane at Lima, pursuant to Section 13441-3, General Code.

Section 13441-3, General Code, upon which the commitment is based, is as follows:

“When a defendant pleads ‘not guilty by reason of insanity,’ and is acquitted on the sole ground of his insanity, such fact shall be found by the jury in its verdict, and it shall be presumed that such insanity continues. In such case the court shall forthwith di-' rect that the accused .be confined in the Lima State Hospital, and' shall forthwith commit him to such hospital, and such person shall not-be released from confinement in such hospital unless and until the judge of the Court of Common Pleas of Allen county, Ohio, the superintendent of said Lima State Hospital and an alienist to be designated by said judge and said superintendent, or a majority of them, after notice and hearing, find and determine that said defendant’s sanity has been restored, and that his release will not be dangerous; if said release be granted, it may be final, or on condition, or such person may be released on parole; and thereafter, in the discretion of said judge or superintendent may be returned to said hospital. Notice of such hearing shall be given to the prosecuting attorney of Allen county, also to the prosecuting attorney of the county from which said defendant was committed; nothing in this section contained shall be held or construed to deprive such person of his constitutional privilege to the writ, of habeas corpus. ’ ’

The provisions of the section mentioned are the only ones relating to the confinement and commitment in felony cases where the defendant pleads “not guilty by reason of insanity” and is acquitted on the sole ground of his insanity.

The case was submitted to the court upon the petition and return of the writ and the evidence.

The respondent, at the close of petitioner’s case and again at the close of all the evidence, moved the court to dismiss the case for the stated reason that Section 13441-3, General Code, prescribes and gives to petitioner a remedy designed specifically to rule the case presented by petitioner, and consequently the writ of habeas corpus may not be invoked.

The court reserved its decision on that motion and •heard the whole case subject to the decision it should thereafter render on the motion. The motion will therefore be. first considered.

Based on the decisions of courts in states other than Ohio, the following rules relating to the legal questions raised by the motion to dismiss, are set forth in 25 American Jurisprudence, under the subject of habeas corpus, to wit:

“Where one in custody by reason of insanity is detained after he has recovered his sanity, such detention is illegal and may be ended by habeas corpus-,. and it is generally held that a person committed as. insane has the right to have his sanity determined on habeas corpus. In some states, the writ lies notwithstanding provision is made for a statutory proceeding whereby the sanity of one committed to an asylum may be determined.

“In some jurisdictions, however, the existence of another adequate statutory remedy to obtain the release of one committed as criminally insane has been held to preclude the use of habeas corpus for this purpose, but such, of course, is not the rule in jurisdictions-where such other remedy is not deemed exclusive.” 25-American Jurisprudence, 209, Habeas Corpus, Section 85.

“The writ of habeas corpus may not be invoked by one who has a remedy given by a statute, designed specifically to rule the case presented by him.

* # # # *

“In many instances, a specific statutory remedy provided-for one who seeks to obtain the relief available-under a writ of habeas corpus has been held to be exclusive, either in fact or by necessary implication, and to preclude a resort to habeas corpus. On the other hand, in several instances, the specific remedy provided by statute has been held to be cumulative, and not exclusive of a resort to habeas corpus.” 25 American Jurisprudence, 156, Habeas Corpus, Section 20.

In the case of In re Remus, 119 Ohio St., 166, 162 N. E., 740, it is, among other things, held:

“1. One who is acquitted of murder on the sole-ground of insanity and who has been committed to the Lima State Hospital for the Insane, is not deprived from thereafter seeking a writ of habeas corpus for the purpose of showing that he is sane and therefore unlawfully restrained of his liberty.

“2. Section 1998, General Code (98 Ohio Laws, 240),, authorizing the superintendent of such institution to discharge such inmate,who ‘in his judgment’,is recovered, etc., does not preclude the inmate from applying to a court of competent jurisdiction for a determination of his sanity, — to a tribunal which is empowered to use its process, and to hear sworn testimony upon that issue.”

From the opinion in the above case it appears that the holdings mentioned are based upon the following reasoning:

“While it may be readily conceded that the superintendent has a discretion in the exercise of his-judgment in the release of an inmate, we do not agree that his judgment in that respect is either exclusive or final ;* nor do we concur in the view that an inmate of such hospital .may not apply to a court that has original jurisdiction in habeas corpus for his release therefrom. Under the Constitution óf this state, the Court of Appeals is given original jurisdiction in habeas corpus to determine whether one of its citizens is unlawfully restrained or deprived, of his liberty. Surely this power has equal or larger scope than any that may be conferred upon the superintendent by legislative act. Habeas corpus supplies a method by which an inmate may have a judicial determination of his sanity or of his unlawful restraint. If unlawfully restrained, he may invoke the authority of a court of competent jurisdiction, by means of that writ, in order to secure his release. No legislation can circumvent or deny this jurisdiction of the court in habeas corpus, although legislation may provide for reasonable facilities for its judicial exercise. * * *

“That the, liberties of its citizens might be safeguarded, this state, like many others, has adopted this coñstitutional provision:

“ ‘The-privilege of the writ of habeas corpus shall not be suspended, unless, in cases of rebellion or invasion, the public safety require it.’ Article I, Section 8.

“Were we to hold that the judgment of the superintendent of the Lima State Hospital upon the question of the inmate’s sanity, or upon the lawfulness of his restraint, was final and exclusive, we would thereby deprive him of the right to appeal to a judicial tribunal for the determination of such question — a right guaranteed him by our Constitution and law. It would be an anomaly in our jurisprudence were we to hold that a judicial, tribunal, upon which original jurisdiction in habeas corpus has been conferred by our Constitution and laws, was powerless to determine the sanity or insanity of an inmate of an institution for the insane, and to release him if he was in fact sane or had been restored to reason since his legal confinement, or to hold-that such courts, were prevented from decreeing hi's liberation because the judgment of the superintendent conflicted with the judgment of a court empowered to use its processes and to hear' sworn testimony upon that vital issue.”

Giving effect to the decision in the case of In re Remus, supra, and the reasoning upon which it is based, it is clear that under the laws of Ohio anyone who is acquitted of a felony on the sole ground of insanity and who has been committed to the Lima State Hospital for the Criminal Insane, is entitled to have the. question of his sanity, or of the lawfulness of his restraint, determined by a judicial tribunal.

Section 1998, General Code, in effect at the time of the decision of In re Remus, supra, and referred to in the above quoted second paragraph of the syllabus of that case, authorized the superintendent of the Lima State Hospital to discharge an inmate “not under sentence for crime, who, in his judgment, is recovered, ■or who has not recovered, but whose condition has improved to such extent that his discharge will not be •detrimental to public welfare or injurious to him.”

The section mentioned has been repealed and the •only section of the General Code how in effect containing any provision in any way similar to the provisions of the repealed section, is Section 13441-3, •General Code, hereinbefore quoted.

It will be noted that under the provisions of Section 13441-3, General Code, a person committed as prescribed in that section shall not be released from confinement in such hospital unless and until the judge of the Court of Common Pleas of Allen county, Ohio, the superintendent of Lima State Hospital, and an alien-, ist to be designated by such judge and superintendent, or a majority of them, after notice and hearing, find and determine that the defendant’s sanity has been restored and that his release will not be dangerous.

There being no provision to the contrary in that ■section, it would appear that a person so committed and held in that hospital might, if he desired, by proper application to the Common Pleas Court, avail himself •of the provisions of that section, although it has been ■customary for only the superintendent of the hospital to make such application.

The tribunal, board or commission prescribed by that section to find or determine the question of wheth^ •er defendant’s sanity has been restored, and whether he should be released from that hospital, is not a judicial tribunal but simply an administrative board, as it, by the terms of the section, is composed of two persons who are not judges and who, under the terms of the section, may. make such finding or determination without the concurrence of the judge who is a member •of such tribunal, boafd or commission.

As Section 13441-3, General Code, does not prescribe a judicial tribunal to make such finding and determination, and the petitioner, under the Constitution of tbis state, has tbe right to have such determination made by a judicial tribunal, the remedy prescribed in. the section is not exclusive and the petitioner is not thereby precluded from resorting to his constitutional remedy of a writ of habeas corpus.

It will be noted also that under the provisions of that section the right to this remedy is expressly recognized as being available to persons committed pursuant to the provisions of that section.

For the reasons mentioned, the motion to dismiss the petition will be overruled.

We will therefore proceed to a consideration of the case on its merits.

We find from the evidence that the petitioner contracted syphilis in 1939, and for some time prior to his commitment to Lima State Hospital had indulged in the excessive consumption of alcohol, and when admitted to that hospital suffered from insanity which was diagnosed as such by psychiatrists who classified the same, as psychosis with syphilitic meningo encephalitis (general paralysis), with paranoid trend, and was diagnosed as such by other' psychiatrists who classified the same as severe alcoholic psychosis, all of the psychiatrists finding that the petitioner,- at the time, exhibited symptoms of amnesia, hallucinations and delusions.

Since petitioner’s commitment, his mental condition has improved so that during about five months preceding the trial in this court his mind has been clear and he appears to be sane.

Syphilis of the character suffered by petitioner causes a deterioration of brain tissue which tends to produce amnesia, hallucinations and delusions and other symptoms of insanity which are aggravated by the excessive use of alcohol.

The nature of petitioner’s mental illness is such that he may, and probably will at any time, particularly if released from confinement and not restrained in the consumption of alcohol, have a recurrence of amnesia, hallucinations and delusions and other indicia of insanity from which he bad heretofore suffered, and consequently it is impossible at this time to determine that he has now been restored to reason and is sane.

As it is impossible to make such determination, the petition of the petitioner will be denied and he will be remanded to the custody of the respondent to be confined by him pursuant to the commitment.

Writ denied.

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


text:
    Hilleary, Appellee, v. Bromley et al., Appellants.
    (No. 3993
    Decided May 9, 1947.)

      Mr. Paul R. Gingher and Mr. J. Paul McNamara, for appellee.

      Mr. John F. Ward and Messrs. Knepper, White & Dempsey, for appellants.
   Miller, J.

This is an appeal on questions of law from the Court of Common Pleas of Franklin county, Ohio. This case is before this court for the second time, the judgment resulting from the first trial having-been reversed by the Supreme Court for error of the court in instructing the jury to return a verdict for the defendants at the close of plaintiff’s case. The evidence developed at the second trial on behalf of the plaintiff is practically the same as that of the first trial, although counsel for the defendants are contending otherwise.

The record discloses that the defendants were partners engaged in the business of furnishing, selling and applying roll siding on dwelling houses; that the plaintiff, Robert L. Hilleary, was an employee of the defendants for approximately eight days, during which period of time he was instructed in the methods approved by the industry and profession of applying roll siding as furnished by the defendants. Prior to April 6, 1940, the defendants agreed to apply siding on a dwelling house on Ho sack street in the city •of Columbus. The defendants in turn entered into a subcontract with the plaintiff whereby the latter agreed to apply the siding on the house in question and defendants agreed to furnish the plaintiff for such purpose good safe equipment consisting of ladders, jacks and planks. Pursuant to such agreement the defendants furnished and delivered to the plaintiff at the site where the siding was to be applied, the •equipment. above mentioned with the knowledge that the ladders so furnished were expected to bear the weight of one or two men, the jacks, the planks and sufficient material, which might weigh about 75 pounds, to cover the surface being worked upon.

The plaintiff inspected the ladders each day he used them, but discovered no defects therein. There was no inspection of the ladders to determine the weight, stress or strain which they would bear, except by the manufacturers thereof, and the evidence discloses no inspection of the ladder in question by defendants for any purpose. The defendants purchased these ladders new several months previously from a responsible hardware dealer and seem to have relied upon this fact and assumed that they would be safe. They were painted by the defendants soon after coming into their possession and before they were delivered to the plaintiff. This to some extent obscured the grain of the wood.

On April 6, 1940, the fourth day after the work had been started on the job, the plaintiff placed three of the ladders against the side of the house approximately 12 to 14 feet apart. 'The jacks were hooked upon and suspended from the. upper rungs of the ladders and in turn supported two planks extending between the ladders. While the plaintiff and a helper were standing on one of these planks, suspended between an end ladder and the middle ladder, the inside, rail or upright of the end ladder broke into the third rung and then split at the rung down past the fourth rung •and out between the fourth and fifth rungs, with the result that the plank upon which the plaintiff was standing and the plaintiff .himself were precipitated to the ground, a distance of about 16 feet. Plaintiff’s foot was severely injured, resulting in a permanent injury. Subsequent examination of the ladder rail indicated that the split followed the grain of the wood.

The plaintiff brought this action to recover damages for his injuries, alleging in his petition that they resulted from the negligence of the defendants in furnishing him a ladder which was defective and inadequate for the purpose for which it was to be used.

The amended answer set up the following three defenses :

(1) A general denial.

(2) Sole negligence of the plaintiff.

(3) The plaintiff assumed the'risk.

The errors assigned may be epitomized as follows:

1. The verdict is contrary to law and against the manifest weight of the evidence.

2. The trial court erred in refusing to direct a verdict in .favor of the defendants at the close of plaintiff’s •case and at the close of all the evidence; also in overruling the motion of the defendants for judgment in their favor notwithstanding the verdict of the jury.

3. The trial court erred in withdrawing from the ■consideration of the jury the portion of defendants’ exhibit “A” wherein the plaintiff contractually assumed “the risk of injuries resulting from his work and released the defendants of and from any claims for damages or compensation arising ont of such injuries.

4. The trial court erred in its general charge to the jury.

5. The court erred in omission.and rejection of evidence. . .

6. The trial court erred in overruling the motion of the defendants for a new trial.

7. Other errors apparent upon the face of the record. ,

Considering the first assignment of error, we find that there is substantial testimony in the record to support all of the material allegations of the petition, and that the verdict is, therefore, not, against the manifest weight of the evidence. A judgment will not be reversed on the weight of the evidence unless it is manifestly and clearly so. A mere difference of opinion between the court and jury does not warrant the court in setting aside the verdict. It is a general rule that a verdict should not be set aside if it is supported by any competent, credible evidence. Neither is the verdict contrary to law, as.our Supreme Court in the same styled case reported in 146 Ohio St., 212, 64 N. E. (2d), 832, stated that under this state of facts the question became one for the jury to decide. The court, by virtu'e of the law previously announced in this case, ruled properly in submitting the case to the jury and in overruling the motion for a judgment in favor of the defendants notwithstanding the verdict of the jury. The record contains substantial testimony, as stated previously, which supported the material allegations in the petition, and it became a factual question for the determination of the jury.

The defendants in their arguments misconstrue the facts by stating that the plaintiff had only the privilege of using equipment owned by the defendants. George W. Bromley admitted several times, upon cross-examination that he agreed to furnish the plaintiff good safe equipment. The bailment is still one for the mutual benefit of the parties, as announced by the Supreme Court when it previously considered this case. The obligations and duties of the bailor and bailee were clearly set forth in. the opinion by Judge Hart and we shall not again restate them.

Considering the next alleged error in withdrawing from the consideration of the jury' a portion of defendants’ exhibit “A,” wherein the plaintiff contracted to assume the risk of injuries resulting from his work and released- the defendants of and from any claim for damages or compensation ‘arising out of such injuries, we find the third defense of the amended answer alleged:

“That plaintiff assumed the risk of injury sustained by him during the performance of said work and, by the terms of said written contract of April 3, 1940, and for valuable consideration, plaintiff assumed full and absolute liability for himself and his employees. and therein and thereby released defendants from any and all, liability or compensation for accidental injury to himself or his employees.”

The contract referred to in the amended answer was introduced in evidence and marked defendants’ exhibit “A,” and provided in its fourth paragraph:

“The party of the second part [plaintiff] hereby agree and understand that he is accepting this subcontract and are assuming full and absolute liability for him and his employees and further release the party of the first part [defendants] from any and all liability or compensation for accidental injury to themselves or their employees.”

When the contract was admitted in evidence the court excluded from it the above quoted language, and then in charging the jury withdrew from its consideration the third .defense. Now, did the court err in this ruling? It should be remembered that the defendants expressly orally agreed to furnish the plaintiff good safe equipment., This oral agreement was never rescinded, modified or terminated and no such claim is made by the defendants. Defendants’ exhibit “A” does not purport to contain all the terms of the agreement between these parties. The subject" matter of the equipment to be furnished by the defendants for plaintiff’s use is not mentioned in this document. This defense would, therefore, have no application to the oral agreement of the defendants to furnish good safe equipment. E"$"en if this defense had application, the-contract of the' plaintiff to assume all risks of injury would be void as being contrary to law and against public policy. Such a pronouncement was recently made in the case of Agricultural Ins. Co. v. Constantine, 144 Ohio St., 275, 58 N. E. (2d), 658, wherein Judge Bell said:

“There is no evidence in this record to' support the conclusion that the bailor ever assented to or even knew of the printed conditions upon the parking' ticket. However, a more cogent reason why this bailor was not bound by those conditions is that they are contrary to law and against public policy.” (Italics ours.)

The printed conditions referred to in that ease provided that the bailee would not be liable for loss or damage of cars, accessories or contents from whatever cause arising while in his possession. Continuing, the court said:

“By that language the bailee attempted to avoid liability for his own negligence as well as that of his agents or servants and, if the printed conditions are enforceable, the language is broad enough to avoid, liability for any wanton or wilful misconduct on the-part of such bailee, his agents' or servants.

“The attempted limitation of liability here under consideration cannot be upheld either upon reason or authority * * #.

“The general rule is well stated in 6 American Jurisprudence, 270, Section 176, which reads in part as follows: ‘It is now apparently well settled that a bailee for hire cannot, by contract, exempt himself from liability for his own negligence or that of his agents or servants * * Contracts limiting liability for negligence in bailments for hire in the course of a general dealing with the public are generally regarded as against public policy.’ ”

It will be noted that in that case it was the bailee seeking to escape liability. However, the principle is applicable irrespective of the position of the parties.

We also find in 5 Ohio Jurisprudence, 114, Section 21, that it is stated:

“Ordinarily in bailments the parties may diminish the liability of the bailee by special contract, provided the contract is not in violation of law or of public policy, and does not relieve the bailee of negligence. As a bailee for hire impliedly contracts to use ordinary care, it follows' that he may not contract against his own negligence or the lack of such care.” Citing Hotels Statler Co. v. Safier, 103 Ohio St., 638, 134 N. E., 460, 22 A. L. R., 1190.

In order to maintain their position, defendants’ counsel have argued the point by analogy to the master-servant and employer-employee relationship. Such a provision in a contract between parties in that relation is likewise illegal and void. See 2 Restatement of Contracts, Section 575, and the Ohio Annotations thereunder. The defendants in this case owed the duty to this plaintiff in the furnishing of equipment, of exercising ordinary care to make the chattel which is the subject of bailment safe for its intended purpose or to inform the bailee of the unsafe condition in the chattel whigh it was the duty of the bailor, in the exercise of ordinary care, to discover. The defendants could not and did not free themselves from this obligation by the contract identified as defendants’ exhibit “A.”

The next alleged error is that the court erred in its general charge to the jury. The court in its charge to the jury made the following statement:

“Now, with reference to sole negligence, the defendants claim that the plaintiff was negligent in that this thing was occasioned by the improper adjustment of the equipment, the improper use of the equipment; also the defendants say that the plaintiff overloaded the structure, the scaffold, and the ladder upon which the scaffold and the jacks were placed, that he improperly placed the jacks, and that this weight was greater than the capacity of the ladders or equipment would bear, greater than they were intended to bear. Now, that is denied by the plaintiff; what the fact is, you are to ascertain and determine, but I say to you that if the breaking of this side rail was occasioned by overloading or by the improper adjustment or placement of any of this equipment, that would constitute negligence. - But if, on the other hand, the plaintiff had arranged the equipment, or fixed the equipment or used it in the manner that was provided by the profession or industry in which he was engaged, of cotirse, then he could not b'& said to be negligent. Now what the fact is relative to this, is for your ascertainment and determination, based on all the facts and circumstances here in evidence before you.” (Italics ours.)

The parts italicized are claimed by the defendants to be erroneous, prejudicially erroneous, citing Ault v. Hall, 119 Ohio St., 422, 164 N. E., 518, 60 A. L. R., 128, wherein it was held:

“3. Customary methods or conduct do not furnish a test which is conclusive or controlling on the question, of negligence or fix a standard by which negligence-is to be gauged, but conformity thereto is a circumstance to be weighed and considered with other circumstances in determining whether or not ordinary care has-been exercised.

“4. Methods employed in any trade, business or profession, however long continued, cannot avail to establish as safe in law that which is dang'erous in fact. ’ ’

We are of the opinion that the facts in that case are not on all fours with those in the case at bar, for Chief Justice Marshall made the following comment on page 434:

“The plaintiff was unconscious, and there is nothing to show that she understood the system whereby sponges were to be accounted for, and there is nothing to show that she was consenting that the surgeon should be relieved of all responsibility by employing a system which was entirely reasonable within itself. ’ ’

The facts in our case show that the plaintiff was taught by the defendants’ employees the method of constructing the scaffolding as approved by the industry or profession, and the defendants are chargeable with this information and their consent thereto. Having approved of the method used by the profession or industry, the defendants cannot now be heard to complain as to that.

We, therefore,- think the charge is proper and not erroneous.

The defendants are contending further that because the plaintiff was furnished four 20-foot sections of ladders and only three were used, 'he had the right to select whatever equipment he desired, and that because he selected the particular ladder which broke, from a supply of ladders on hand, the liability of the defendants was not the same as if they had directed. the plaintiff that this particular ladder should be used by him. We do not agree with the conclusion of the defendants that the evidence shows that the plaintiff selected whatever equipment he desired. The record shows that the defendants furnished and delivered to plaintiff at the site of the work the particular ladder that broke. The agreement of the defendants was to furnish good safe equipment. The ladder that broke was a part of this equipment and not raw material from which a selection was to be made by the plaintiff as in the cases cited by' defendants.

The defendants contend further that plaintiff, as an employer and as a workman for himself, was bound to comply with the safety regulations of the Ohio Department of Industrial Relations and his failure to do so deprived him of the right to recover in this case. These safety regulations were introduced in evidence and without objection, both parties referring to certain provisions thereof. The plaintiff contended to the jury that the evidence showed that the defendants violated certain of these requirements. The defendants contended that the evidence showed that the plaintiff violated some of these requirements. Let us assume, for the sake of argument, that the evidence showed that both parties violated these requirements. The question of what negligence was the proximate cause of the injury was still for the jury to determine. The court correctly charged on these requirements. The question of proximate cause of the injury was properly left for the determination of the jury.

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

Judgment affirmed.

Wiseman, P. J., and Hornbeok, J., concur.


author: By .the Court.

text:
    Dickerson, Appellee and Cross-appellant, v. Russo, Appellee, et al.; Weldon, Appellant.
    (No. 4056
    Decided October 31, 1947.)

      Mr. Carl E. Valentine, for appellee and cross-appellant Dorothy Dickerson.

      Mr. Carl W. Lorts and Mr. John C. Fontana, for appellee Lorenzo Russo.

      Mr. Clifford L. Rose and Mr. Byron E. Ford, for appellant.
   By .the Court.

This is an appeal on questions of' law from a judgment on the verdict entered by the Common Pleas Court of Franklin county in favor of the plaintiff.

The plaintiff, Dorothy Dickerson, brought an action for damages arising by reason of a collision which occurred on September 18, 1941^ at 2:45 a. m., at the intersection of Parsons avenue and Whittier street, city of Columbus, between a taxicab owned by defendant Lorenzo Russoj in which taxicab the plaintiff was riding at the time as a passenger for hire, and an automobile operated by defendant.Richard J. Weldon. In her amended petition the plaintiff alleged that both defendants were negligent in the operation of their respective vehicles, in that each defendant entered the intersection against the red light, and that the vehicles were being driven at an excessive rate of speed, to wit,. 40 miles per hour.

At the close of all the evidence both Russo and Weldon moved for directed verdicts, which motions the court overruled. The jury returned a verdict for the plaintiff against both defendants in the amount of $2,500. Both defendants filed motions for judgments non obstante veredicto. The court sustained the motion filed by Russo and entered judgment for that defendant. The court overruled the motion of Weldon and entered judgment on the verdict for the plaintiff, from which judgment Weldon appeals. The plaintiff, Dorothy Dickerson, appeals from the order sustaining the motion of Russo for judgment notwithstanding the verdict.

The defendant Weldon assigns as error: Overruling his motion for judgment following the opening' statements; overruling his motion for directed verdict at the close of the plaintiff’s case, and also at the close of all the evidence; error in the general charge sustaining the motion of Russo for judgment notwithstanding the verdict; and in overruling the defendant’s motion for new trial and entering judgment.

The record does not contain the opening statements of counsel. The record does show that the court granted plaintiff permission to amend her amended petition at bar. There is no support in the record for the claimed error in overruling the motion of the defendant Weldon for judgment on the opening statements. Neither can we find support in the record for the claim that judgment should have been rendered for the defendants on the pleadings.

. Error cannot be predicated on the order of the court overruling Weldon’s motion for a directed verdict at the close of plaintiff’s case, since this error, if any, was waived when Weldon submitted evidence in his-own defense.

We have carefully considered the general charge and find no error committed by the court, either in the general charge or in the special instructions , given before argument.

The claims that the court erred in overruling Weldon’s motion for a directed verdict at the close of all the evidence, in sustaining the motion of Russo for judgment notwithstanding the verdict, and in overruling Weldon’s motion for a new trial and entering judgment on the verdict will be considered together.

The evidence shows that the taxicab owned by Russo in which the plaintiff was riding was being driven in a westerly direction on Whittier street; that the automobile being driven by the defendant Weldon was proceeding in a southerly direction on Parsons avenue; that Whittier street and Parsons avenue intersect at right angles; and that at the intersection the traffic is controlled by an automatic traffic signal light, suspended in the center of the intersection, alternately showing. red and green.

The evidence shows “that Whittier street is approximately 35 feet in width between curbs, and Parsons avenue is from 45 to 60 feet in width between curbs; that the taxicab had crossed the center line of the intersection and was travelling on the right or north side of Whittier street at the time of the collision; that the automobile being driven by defendant Weldon was travelling on the right or west side of Parsons avenue; that the front end of the Weldon automobile struck the right side of the taxicab near the right front door, smashing in the door and right front fender; that the taxicab, by reason of the impact, was forced to the left and south on Parsons avenue, and when it stopped it was found to be on the west side of Parsons avenue about 20 or 30 feet below Whittier street; and that the Weldon automobile stopped against a utility pole on the southwest corner of the intersection. The collision occurring in the northwest quarter of the intersection, it is evident that the taxicab entered the intersection before the Weldon automobile. The collision occurred at a point where a rate of speed not in excess of 35 miles per hours is regarded as prima facie reasonable and lawful, under Section 6307-21, General Code. However, the evidence shows that the taxicab was travelling at a'rate of speed of approximately 25 miles per hour, and the Weldon automobile at approximately 35 miles per hour.

The court in its general charge eliminated the charge of excessive speed against Russo, but submitted to the jury the issue of excessive speed on the part of Weldon.

The sole remaining question at issue was: Which driver entered the intersection on the red light? The drivers of both vehicles testified that they entered the intersection on the green light. The plaintiff testilled that as the taxicab approached the intersection she saw the green light on Whittier street, bnt the, top of the taxicab obscured her vision as the taxicab entered the intersection. The driver of another motor vehicle testified that he was proceeding in a northerly direction on Parsons avenue, and as he reached the intersection the light was red .on Parsons, avenue, causing him to stop to wait for the light to turn green in order to proceed, and that while he was waiting and the light was still red on Parsons avenue, the motor vehicles in question entered the intersection and the collision occurred.

Obviously the drivers of both vehicles could not •enter the intersection at the same time on the green light, or at the same time on the red light. Clearly, one driver entered the intersection on the green or “go” signal, and the other on the red or “stop” signal. There was a definite conflict in the evidence on this issue. Clearly it was a question to be determined by the jury. After giving consideration to all the evidence, and giving the evidence the most favorable interpretation in favor of the plaintiff, we are of the opinion that reasonable minds could reasonably arrive at different conclusions. The motion of Russo for judgment notwithstanding the adverse verdict should have been overruled.

With respect to the defendant Weldon, both charges of negligence were submitted to the jury, to wit, excessive speed and entering the intersection on the red light. In applying the same legal test to the evidence with respect to any negligence on the part of Weldon, reasonable minds could reasonably arrive at different conclusions. Under the issues and the evidence the jury could very properly find both defendants guilty of negligence. Consequently, the court very properly overruled both motions for a directed verdict at the close of all the evidence: Also the court was correct in overruling Weldon’s motion notwithstanding the verdict, and in overruling his motion for a new trial and entering judgment on the verdict.

The errors assigned by the plaintiff, that the court erred in sustaining the motion of defendant Russo, for judgment notwithstanding the verdict, and in entering judgment in favor of Russo and against the plaintiff, need no further discussion. ■

This case was thoroughly tried. The parties involved were represented by competent counsel who fully explored every phase of the case. We are of the opinion that the amount of damages awarded to the plaintiff is supported by the evidence; that there' was no error in the admission or exclusion of evidence, and no prejudicial error appears in the record to support the claim of appellant Weldon.

The case will be remanded with instructions to overrule the motion of Russo notwithstanding the verdict, and to enter judgment on the verdict for the plaintiff' and against Russo. In all other respects the judgment is affirmed.

Judgment accordingly.

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


author: Skeel, J.

text:
    The State of Ohio, Appellee, v. Parker, Appellant.
    (No. 20757
    Decided January 12, 1948.)

      Mr. Frank T. Gtillitan, prosecuting attorney, for appellee.

      Mr. W. G. Brownlee, for appellant.
   Skeel, J.

This action comes to this court on appeal on questions of law from a final order of the Juvenile Court of Cuyahoga county, overruling a motion to vacate a judgment finding the defendant guilty of failing to support an illegitimate minor child.

The defendant, on December 11, 1946, had been found guilty under Section 1639-46, General Code, as amended effective January 1, 1946, of nonsupport of an illegitimate minor child of which he ,was alleged to be the father.

The record discloses that the basis upon which the defendant claimed the right to have such judgment vacated was “newly discovered evidence.”

Both the prosecuting witness and the defendant were married but, $t the time this action was begun or at any time prior thereto, did not bear the relationship of husband and wife.

The evidence which defendant claims as newly discovered is the birth certificate of the claimed illegitimate child, “Joyce Matthews,” for whose support this action was brought. The birth certificate filed with the Bureau of Vital Statistics by the attending; physician shows that Robert Matthews, the complaining witness’s husband, was the father of the child. It is the claim of the defendant that he did not know about this birth certificate until after he was adjudged guilty.

It must be evident that if such evidence had been available and used upon the trial of the defendant, it is of such a vital character as in all reasonable probability would have materially affected the outcome of the trial. The failure of the court to grant the motion, upon the uncontradicted evidence of the contents, of the birth certificate, constituted an abuse of discretion prejudicial to the rights of the defendant.

One other question is presented by the record.

Section 1639-46, Geperal Code, provides as follows:-

“Whoever is charged by law with the care, support,, maintenance or education of a legitimate or illegitimate child under eighteen years of age, * * * upon complaint filed in a court exercising the jurisdiction conferred in this chapter, may be, after trial and conviction, sentenced to imprisonment for not more than one year, or fined not more than five- hundred dollars

Section 1639-16, General Code, as amended effective-January 1, 1946, provides in part:

“The [juvenile] court shall have exclusive original! jurisdiction under this chapter or. under other provisions of the General Code * * #

“3. To determine the paternity of any child alleged to have been born out of wedlock and to provide for the support of such child, subject to the concurrent jurisdiction of other courts as provided by law. * * * ”

The • affidavit filed by % the complaining witness charged that “one Frank Parker, the father of Joyce Matthews, an illegitimate child under the age of eighteen years, to wit, of the age of 17 months, did unlawfully fail and neglect and refused to care for, support and educate the.said child, he, the said Frank Parker, well knowing the said Joyce Matthews to be such child * *

It will be noticed that the affidavit fails to charge that the defendant had ever been adjudged by any court of competent jurisdiction to be the father of such illegitimate child. Until such fact had been judicially determined, the defendant could not be charged for norisupport under Section 1639-46, supra, because one of the elements of the crime, as defined by that section, is that the person prosecuted thereunder must be one who is “charged by law” to be the father of an illegitimate child under eighteen years of age. The affidavit, therefore, does not state a cause of action against the defendant.

The final order of the court, overruling the defendant’s motion to vacate the judgment of guilty, and ordering the support of the minor child, is, therefore, reversed, and the cause is remanded with instructions to grant such motion to vacate the judgment of guilty and for further proceedings according to law.

Judgment reversed.

Hurd, P. J., and Morgan, J., concur.


author: By the Court.

text:
    The State, ex rel. Church of the Nazarene, v. Fogo, Registrar.
    (No. 4024
    Decided June 20, 1947.)

      Mr. Clarence J. Stewart, for relator.

      Mr. Hugh S. Jenkins, attorney general, and Mr. Joseph S. Gill, for respondent.
   By the Court.

This is an action in mandamus wherein the relator seeks a writ directing the respondent, Edward T. Fogo, as registrar of motor vehicles, to issue to it license plates for an alleged “school bus” without the payment of the annual motor vehicle license tax as provided in Section 6295-1, General Code. The petition alleges that the “school bus” in question is used to transport children to Sunday school 'and Bible school and to school functions connected therewith, all of which are operated in connection with a church. A general demurrer is filed to the petition.

The question presented is whether a bus used for such purposes is a. “school bus” as that term is used in Section 6295-1, General Code, which provides in part as follows:

“No school bus as hereinafter defined shall be required to pay the annual license tax provided for in Section 6291 of the General Code. The term ‘school bus’ as used herein shall be construed to mean any vehicle, however owned, used exclusively to transport school children, either to and/or from school, or to and/or from any school function, having a seating capacity of more than five persons exclusive of the driver. ’ ’

It is an elementary rule of statutory construction that words used in a statute should be given their usual and ordinary meaning unless the context requires a different interpretation. Consequently, it is necessary to ascertain the ordinary meaning of the words “school” and “Sunday school.” We think that the term “school” as so used denotes an institution of learning wherein a course of general.education and mental training is offered for children similar to that offered in the public schools.

The term “Sunday school” as ordinarily used refers to a school held on Sunday for the study of the Bible and for religious instruction. The terms “school” and “Sunday school” are not synonymous, as ordinarily used, each having a distinct and different meaning. We, therefore, hold that a “Sunday school” does'not constitute a “school” as that term is defined, and consequently a bus used in connection therewith would not constitute a “school bus” as1 that term is used in Section 6295-1, General Code.

The demurrer will be sustained.

•Demiirrer sustained.

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


author: Doyle, P. J.

text:
    In re Estate of Buchanan: The Plunkett-Webster Lumber Co., Appellant, v. Buchanan, Admr., Appellee.
    (No. 6842
    Decided March 3, 1948.)

      Messrs. Matthews é Matthews, for appellant.

      Mr. Samuel Plotnick, -for appellee.
   Doyle, P. J.

On May 29, 1947, the Probate Court of Hamilton county entered an order which overruled exceptions filed by The Plunkett-Webster Lumber Company to a schedule of debts filed by Robert W. Buchanan, administrator of the estate of George Allison Buchanan, deceased.

The lumber company had asserted, in its filed exceptions, that “it is one of the creditors of the estate -of George Allison Buchanan, deceased, and * * * that it hereby notes and files its exceptions to the schedule of debts filed in the above-entitled estate for the following reason:' That the claim of The Plunkett-Webster Lumber Co. in the sum of $4,218.43 was arbitrarily rejected by the administrator, of the estate of George Allison Buchanan, deceased, whereas said claim should,have been allowed, and included in the schedule of debts as an allowed claim.” The exceptor continued by praying for “a hearing upon the exceptions * * * and for such orders as may be proper in the premises.”

From the order stated above, appeal was taken to this court on questions of law.

1. This case must be ruled by the 'pertinent provisions of the Probate Code, as amended and revised effective August 22, 1941.

Section 10509-113, General Code (119 Ohio Laws, 394), defines the manner in which claims of creditors shall be rejected. The section is in the following language:

“The executor or administrator shall reject a claim by giving the claimant written notice of the disallowance thereof. Such notice shall be given to the claimant personally or by registered mail with return receipt requested, addressed to the claimant at the address given on the claim. Notice by mail shall be effective on delivery of the mail at the address given. A claim may be rejected in whole or in part. A claim which has been allowed may be rejected at any time thereafter.

“A claim shall be deemed rejected if the executor or administrator, on demand in writing by the claimant for an allowance thereof within five days, which demand may be made at presentation or at any time thereafter, fails to give to the claimant, within such period, a written statement of the allowance of such claim. Such rejection shall become effective at the expiration of such period.”

This section provides for unequivocal acts, and its provisions are mandatory.

Section 10509-133, General Code (119 Ohio Laws, 394), requires that .if challenge is desired to the action of an administrator in rejecting a claim in the manner directed by Section 10509-113, General Code, “the claimant must commence an action on the claim *' # *, within two months after such rejection * * This section is as follows:

“When a claim against an estate has been rejected in whole or in part, but not referred to referees, or when a claim has been allowed in whole or in part and thereafter rejected, the claimant must pommence an action on the claim or that part thereof rejected, within two months after such rejection, if the debt or that part thereof rejected be then due, or within two months after the same becomes due, or be forever barred from maintaining an action thereon; except that, in the event of the death, resignation or removal of such executor or administrator within such two months’ period and before action is commenced thereon, the action may be commenced within two months after the appointment of a successor.

“For the purposes of. this section, the action of a claimant shall be deemed to have been commenced when the petition and praecipe for service of summons on the executor or administrator have been duly filed.”

The Probate Court is without authority to determine the merits of a claim that has been rejected by a fiduciary in compliance with the present statutes. A claimant’s recourse is the commencement of an independent action within the time prescribed by statute after rejection of his claim. This procedure is exclusive.

Specifically deciding the question here presented,, this court determines that there was no authority in law for the Probate Court to adjudicate the merits of this rejected claim, nor to inquire into thfe claimed, “arbitrary’-’ conduct of the administrator.

The question of fraud is not at all involved here.

The judgment of the Probate Court is affirmed,, and reference is made to the adequate and correct reasoning of that court, as evidenced by its written opinion on file with the papers in the case.

Judgment affirmed,.

Hunsicker, J., and Montgomery, J., concur.

Doyle, P. J.,. and Httnsicker, J., of the Ninth Appellate District, and Montgomery, J., of the Fifth Appellate District, sitting by designation in place of Matthews, P. J., and Ross, J., and Hildebrant, J., of the First Appellate District.